The ECU Group Plc v HSBC Bank Plc & Ors

Retrospective permission for collateral use of documents disclosed under compulsion is exceptional. The fact that prospective permission would probably have been granted is important, but neither necessary nor sufficient. The court must consider the particular circumstances and may attach conditions or impose costs consequences to prevent any improper advantage.

The prohibition on collateral use extends beyond the documents themselves to information derived from them, including analysis or conclusions retained in or communicated from the recipient’s knowledge. Use for advice concerning proceedings in another jurisdiction is ordinarily collateral, although the court may distinguish advice genuinely directed to decisions about proceedings in England.

The applicant had obtained documents from the respondents by pre-action disclosure under CPR 31.16. It applied for prospective and retrospective permission under CPR 31.22(1)(b) to use the documents, and information derived from them, for dealings with authorities, legal advice in the United States, possible proceedings against other parties, and communications with a specialist financial journalist.

The court had already granted limited prospective permission by consent or agreement, but refused the contested aspects. The present judgment determined the retrospective applications and the appropriate conditions and costs consequences.

1. Retrospective permission. Permission for collateral use after the event is rarely granted. Whether permission would have been granted prospectively is a very important factor, but it is neither necessary nor sufficient. The court must examine the particular facts, and may mark a breach through conditions, costs or other sanctions.
2. Use of disclosed information. The restriction in CPR 31.22(1) applies not only to the documents but also to information derived from them, including analysis and conclusions stored in the mind or communicated to others. The applicant’s mistaken belief that only copies of the documents constituted use was therefore wrong. The principle stated in Crest Homes plc v Marks [1987] 1 AC 829 was applied.
3. United States advice. Use of the documents for advice directed towards bringing proceedings in the United States was collateral and unauthorised. In the unusual international circumstances, retrospective permission was nevertheless granted for the advice already obtained, subject to safeguards. Those included terminating the relevant retainers, restricting further instructions and dissemination, returning the USB stick, providing sworn evidence, and preventing any continuing advantage from the improper purpose.
4. Authorities and journalist. Retrospective permission was granted for the limited communications with UK and US authorities. It was refused for supplying material to FX Week. That was a serious and inexplicable breach, for which prospective permission would not have been granted.
5. Costs. The applicant was ordered to bear its own costs and pay the respondents’ costs of the application and related matters on the indemnity basis.