IG Index Ltd v Cloete (Rev 2)

A restriction on using disclosed documents extends to information derived from them and to their provenance. It prevents a recipient from using disclosure in separate proceedings without permission, even where the recipient already owns the underlying confidential information.

Disclosure ordered by an employment tribunal carries the same implied restriction. The High Court may give permission under CPR 31.22. Permission may sometimes be implicit in an order, but only where the court can be recognised as having made and communicated that decision. A court should not infer permission merely because the issue was overlooked. Retrospective permission may be granted where advance permission would plainly have been given and striking out would produce an unjust result.

IG Index Ltd dismissed Mr Cloete, who then brought an unfair-dismissal claim in the employment tribunal. In complying with tribunal disclosure, he supplied a USB stick containing copies of highly confidential client information belonging to IG Index.

IG Index used that disclosure to obtain High Court orders for delivery up, deletion, an interim injunction and costs. It had not sought permission to use the disclosed material in the High Court. Tugendhat J struck out the action as an abuse of process, revoked the earlier costs order and awarded Mr Cloete his costs: [2013] EWHC 3789 (QB).

The appeal concerned the scope of CPR 31.22, whether permission had been impliedly granted, and whether retrospective permission should have been granted instead of striking out the claim.

1. Appeal allowed. The orders striking out the action, revoking Singh J’s costs order and awarding Mr Cloete the costs of the action were set aside. IG Index was given retrospective permission, if required, to use the confidential documents in the action.

2. CPR 31.22 was a complete code governing the collateral use of disclosed documents. Its restriction extended beyond the physical document and information contained in it. It also covered referring to the document and its characteristics, including its provenance. IG Index had reviewed the USB stick, identified the documents and relied on that discovery in correspondence and evidence before Singh J. It had therefore used the disclosed material and required permission.

3. The disclosure restriction applied equally to disclosure ordered by an employment tribunal. Although the tribunal rules contained no express equivalent to CPR 31.22, the same restriction was necessarily implied. Process Development v Hogg did not assist IG Index. The USB stick and electronic copies disclosed by Mr Cloete were his copies, not IG Index’s stolen property.

4. The High Court could grant permission. The tribunal was not a “court” for the relevant CPR definition. Retrospective permission should have been granted. The breach was neither deliberate nor reckless, advance permission would plainly have been granted, and the action retained practical utility because a permanent injunction remained a live issue. In those circumstances, treating the whole action as an abuse and undoing the interlocutory protection was unjust.

5. Singh J had not impliedly given permission. Implied permission requires a recognisable and communicated judicial decision. It may arise as a necessary implication of a wider order, but cannot arise where the need for permission was never considered. That conclusion did not prevent retrospective permission being granted.

• Court of Appeal (Civil Division): Allowed IG Index’s appeal, set aside the strike-out and consequential costs orders, and granted retrospective permission if required.

• High Court (Queen’s Bench Division): Tugendhat J struck out IG Index’s action as an abuse of process, revoked the earlier costs order and ordered IG Index to pay Mr Cloete’s costs: [2013] EWHC 3789 (QB).

• High Court: Singh J had previously ordered delivery up and deletion of the confidential material, granted interim injunctive relief and ordered Mr Cloete to pay the application costs.