Bingham v Martin & Ors

The implied undertaking governing documents obtained through compulsory disclosure applies only to material disclosed under compulsion, including practical compulsion. It does not extend to documents voluntarily provided during litigation. A possible breach of confidence or professional obligation is distinct from contempt of court and does not, without more, justify committal. An application founded on voluntary disclosure therefore discloses no arguable contempt.

Andrew Bingham sought permission to appeal, an extension of time and a stay of enforcement of indemnity costs awarded after Hart J dismissed his committal application. He alleged that eight defendants had disclosed documents arising from separate county court proceedings, including settlement correspondence, draft minutes of order and solicitor-client account details.

Hart J held that the documents were not subject to an implied undertaking because they had not been obtained by compulsory disclosure. The application before the Court of Appeal was whether that conclusion was arguably wrong and whether the alleged disclosure could found contempt proceedings.

1. Applications refused. Lord Justice Robert Walker refused an adjournment and dismissed the application for permission to appeal. The proposed appeal was hopeless, so the applications for an extension of time and a stay fell away.
2. A litigant or lawyer who obtains documents by compulsory disclosure under Civil Procedure Rules Part 31 is subject to an obligation to use them only for the proceedings in which they were produced. The same principle formerly arose from an implied undertaking to the court.
3. The principle is confined to documents produced under compulsion. That includes the practical compulsion involved in producing privileged documents for the assessment of costs, as illustrated by Bourns Inc v Raychem Corp [1999] 3 AER 154.
4. There is no blanket restriction on documents or information acquired during litigation. Documents voluntarily sent by one party to another do not attract the implied undertaking. The court adopted the approach in Prudential Assurance v Fountain Page [1991] 1 WLR 757.
5. The rationale for the safeguard was the protection required when compulsory discovery invades a person’s ability to keep documents private, as explained by Lord Diplock in Home Office v Harman [1983] 1 AC 280. That rationale did not apply to the documents relied on by Mr Bingham.
6. The disclosed material might arguably have involved a breach of confidence or professional obligations. That possibility did not convert the conduct into contempt of court punishable by committal.

• Court of Appeal (Civil Division): Hart J in the Chancery Division dismissed the committal application on the preliminary ground that the documents were not subject to an implied undertaking. The Court of Appeal refused permission to appeal and refused the related applications.