Cassidy v Hawcroft

A document referred to voluntarily in an affidavit, and subsequently produced for inspection under the applicable procedural rule, is not obtained on discovery and is not subject to the implied undertaking restricting the use of discovered documents. The later production order merely recognises the obligation arising from the voluntary disclosure. A party may therefore use the document in separate proceedings, provided that the acquisition and use do not otherwise amount to an abuse of process. Obtaining a document to which the party is entitled is not abusive merely because it enables a claim to be brought.

Michael Cassidy appealed against a decision of H.H. Judge Swanson in the Kingston upon Hull County Court. The judge had stayed his defamation proceedings against David Patchett Hawcroft, holding that the proceedings relied on a letter obtained in earlier injunction proceedings and were thereby an abuse of process.

The letter had been referred to and partly quoted in an affidavit voluntarily filed in the earlier proceedings. Cassidy later obtained an order requiring its production for inspection under CCR Order 14 rule 4. The central issue was whether obtaining and using the letter engaged the implied undertaking applicable to documents disclosed on discovery, or otherwise constituted an abuse of the court’s process.

The appeal was allowed unanimously, with costs. May LJ gave the judgment, and Forbes J and Morritt LJ agreed.

1. Nature of the production order. The order obtained by Cassidy was not an order for discovery. It was an order for production for inspection of a document referred to in an affidavit, made under CCR Order 14 rule 4. Cassidy was entitled to production, and the affidavit’s reference to the document constituted voluntary disclosure.
2. Implied undertaking. The implied undertaking restricting the use of documents obtained on discovery did not arise. The fact that the document was produced pursuant to a court order did not alter the character of the original disclosure. The fact that only part of the letter had been quoted, and that the document was not exhibited, made no difference. The disclosure had also occurred in open court.
3. Authorities. The approach in Tejendrasingh v Metsons concerning the limited scope of release under the equivalent rule did not govern these facts, because the present case concerned voluntary disclosure followed by production for inspection. The reasoning in Prudential Assurance v Fountain Page accorded with that conclusion. It recognised that where production is required because a document was referred to in a voluntary affidavit, the source of the obligation is the affidavit and the subsequent order imposes no relevant restriction.
4. General abuse of process. The court rejected the wider abuse argument. Even assuming that Cassidy needed the letter to commence his claim, he was entitled to obtain it from the person who had voluntarily disclosed it and had not opposed production. It could not be abusive to obtain a document to which he was entitled. The argument was also weakened decisively by Hawcroft’s admissions and service of a copy of the letter in the defamation proceedings.

The order staying the proceedings was set aside.

• Court of Appeal (Civil Division): appeal from the decision and order of H.H. Judge Swanson in the Kingston upon Hull County Court dated 23 December 1999. The Court of Appeal allowed the appeal and awarded costs.