Summary
The collateral-use restrictions governing disclosed documents and witness statements give “use” a wide meaning. Reviewing, reading, copying, showing or extracting information from material may constitute use. A benign purpose, practical necessity or an obligation to give disclosure in later proceedings does not prevent the restrictions from applying.
The rules imply permission only for activity necessary to determine whether an express exception applies, or to seek permission, agreement or consent. They do not impliedly permit a review undertaken to decide whether material should support other proceedings. The court may nevertheless authorise such use after considering its purpose, circumstances and appropriate case-management protections.
Factual background
The claimants brought substantial conspiracy claims arising in the wider context of litigation following the collapse of Kaupthing Bank. The defendants possessed documents and witness statements obtained in other proceedings. Some of that material was likely to be relevant, but it remained subject to the collateral-use protections in Rules 31.22 and 32.12 of the Civil Procedure Rules 1998.
The defendants proposed to review the material for relevance, list relevant material for disclosure, provide it for inspection, and permit the parties to inspect it before deciding whether to rely upon it. They sought declarations that these steps were not collateral use or, alternatively, permission to take them. The central issues were the breadth of “use”, the extent of any implied permission, and whether express permission should be granted.
Held
Declarations refused; permission granted. Steps comprising review for relevance, listing for disclosure, provision for inspection and inspection in the current proceedings were capable of being collateral uses. The court therefore refused declarations that those steps fell outside Rules 31.22 and 32.12 of the Civil Procedure Rules 1998. It nevertheless permitted all four steps on the evidence, in the circumstances and subject to the proposed forward case-management arrangements.
The words of the rules governed the issue, particularly because breach could have serious consequences and might be treated as contempt. “Use” and “purpose” are separate concepts. The rules restrict use for a purpose other than the proceedings in which the document was disclosed or the witness statement served. A benign, practical or otherwise unobjectionable purpose does not prevent an activity from being use. Such considerations instead bear upon permission, agreement or consent.
“Use” has a wide meaning. It includes reading, copying or showing a document, using information contained in it, and referring to the document or its characteristics, including its provenance. A review of protected material may therefore itself be use. Treating review as outside the restriction would permit intrusive reviews for commercial or other collateral purposes. An obligation to give disclosure in later proceedings affects the circumstances and purpose of the activity, but does not alter its character as use.
The rules impliedly permit only the limited activity necessary to determine whether material was used at a public hearing, to seek the court’s permission, or to seek the required agreement or consent. That permission does not extend to reviewing a body of documents to decide whether any should be relied upon or otherwise actively used in other proceedings.
A review undertaken to advise whether other proceedings were possible or could be further informed is collateral use and requires permission or agreement, unless the public-hearing exception applies. By contrast, a review genuinely undertaken for the original litigation does not retrospectively become collateral merely because it reveals material relevant to other proceedings. Any further collateral step requires authority, although use necessary to seek that authority is impliedly permitted.
The court’s approach to earlier authorities
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Key cases cited
8 authorities cited.
- IG Index Ltd v Cloete (Rev 2) [2014] EWCA Civ 1128
- Tchenguiz v SFO [2014] EWCA 1409
- Smithkline Beecham Plc v Generics (UK) Ltd. [2003] EWCA Civ 1109
- Tchenguiz v SFO [2014] EWHC 1315
- Process Development v Hogg [1996] FSR 45
- Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
- Davies (Joy Rosalie) v Eli Lilly & Co [1987] 1 WLR 428
- Australian Securities Commission v Ampolex Ltd
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Cases citing this case
10 later cases · 8 positive · 1 neutral · 1 caution
Most senior citing decisions:
- David Robert Smith v Sir Robert McAlpine [2024] EWHC 3408 (KB) considered
- Ben Leeson & Anor v Donald McPherson [2023] EWHC 2502 (Ch) followed
- The Duke of Sussex v MGN Limited [2023] EWHC 1617 (Ch) applied
- THE FINANCIAL CONDUCT AUTHORITY v KONSTANTINOS PAPADIMITRAKOPOULOS & Anor. [2022] EWHC 2792 (Ch)
- Lakatamia Shipping Company Ltd & Ors v SU & Ors [2020] EWHC 3201 (Comm)
- ACL Netherlands BV & Ors v Lynch & Anor [2019] EWHC 249 (Ch)
- The Libyan Investment Authority v Société Générale S.A. & Ors [2017] EWHC 2631 (Comm)
- Willmont & Anor v Shlosberg [2017] EWHC 2446 (Ch)
- Grosvenor Chemicals Ltd & Ors v UPL Europe Ltd & Ors [2017] EWHC 1893 (Ch)
- Ancean Limited v The Financial Conduct Authority [2025] UKUT 404 (TCC)
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