IG Index Plc v Cloete

A document disclosed in one set of proceedings may be used only for those proceedings unless an exception applies, and the restriction covers information derived from the document, including knowledge that the other party possesses it. The rule applies to disclosure in Employment Tribunal proceedings. Using such information to advance separate High Court proceedings without permission is a breach of CPR r.31.22(1). The court may strike out the proceedings where permission was required but not obtained. Retrospective permission may be appropriate in a proper case, particularly where a strong claim remains to be determined, but it is not justified where the substantive relief has already been obtained and the remaining claims lack evidential or practical substance.

The claimant, a spread-betting company, sued a former employee for delivery up, destruction, injunctive relief and damages concerning confidential documents which he had disclosed during ongoing Employment Tribunal proceedings. The claimant relied on the disclosure to establish that the defendant had possessed its documents and information. The defendant applied to strike out the High Court claim as an abuse of process, contending that the claimant had used material disclosed in the Employment Tribunal proceedings for a different purpose without permission under CPR r.31.22.

An interim judge had ordered delivery up and destruction of copies. The Employment Tribunal proceedings were later withdrawn. The central issues were whether the claimant had used information obtained through disclosure for the purposes of the High Court action, and whether permission should be granted retrospectively.

1. Application of the collateral-use rule. The claimant had used information obtained from the disclosure of the Listed Items, namely that the defendant had or had had the claimant’s documents and information. The prohibition in CPR r.31.22(1) extends beyond the documents themselves to information derived from them. It therefore applied even though the claimant was relying on its own documents and on knowledge of the defendant’s possession.
2. The information was not being used for the purposes of the Employment Tribunal proceedings. None of the exceptions in CPR r.31.22(1)(a)-(c) applied. The position was different from that arising on a search order, where the respondent does not choose whether to disclose material.
3. Using the information to advance a claim for damages was plainly a breach of the prohibition. The absence of demonstrated damage did not alter that conclusion. If permission was required but had not been sought, an application to strike out was the correct course. The prohibition operated without a further order under CPR r.31.22(2).
4. The court adopted the approach in Miller v Scorey [1996] 1 WLR 112: retrospective permission may be available in principle, but the circumstances for granting it will be rare. The court should consider whether it is just to allow the action to continue, including whether a proper claim remains and whether striking out would cause injustice.
5. Permission might have been granted for the limited purpose of obtaining delivery up and destruction, which was a strong claim and had effectively been achieved. The evidence did not support a continuing injunction, and the damages claim was unparticularised and apparently without substance. No injustice would result from striking out the action. The claim was accordingly struck out, with costs to be addressed separately.