Lakatamia Shipping Company Ltd & Ors v SU & Ors

Documents disclosed in civil proceedings, and information derived from them, may ordinarily be used only for those proceedings. Reading, searching or reviewing documents to advance separate proceedings can itself constitute collateral use.

Permission requires special circumstances amounting to a cogent and persuasive reason. A standard search-order undertaking permitting the commencement of related proceedings does not imply permission to pursue related proceedings already in existence.

Retrospective permission is available only in limited circumstances. Relevant considerations include prejudice, inadvertence, whether a timely application would have succeeded and whether refusal would be disproportionate. Serious unauthorised use may nevertheless justify retrospective permission where those considerations strongly favour it, subject to an appropriate sanction in costs.

The applicant judgment creditor obtained approximately 800,000 documents from the first defendant under a post-judgment search order. It sought permission under rule 31.22 of the Civil Procedure Rules 1998 to review and use those documents in related proceedings alleging that the first defendant’s mother and others had assisted efforts to evade enforcement.

Before permission was determined, the applicant’s solicitors searched the documents using terms directed to the related proceedings, asked the independent reviewing lawyers to do likewise, and relied in correspondence upon information obtained from an early document batch. The court considered whether the search-order undertaking supplied implied permission, whether rule 31.22 had been breached, and whether retrospective permission should be granted despite those breaches.

1. Disposition. Retrospective permission to use the search-order documents in the related proceedings was granted. The applicant was ordered to pay all costs arising from the application on the indemnity basis.
2. The standard search-order undertaking did not imply permission to use documents in related proceedings already under way. At most, its reference to commencing civil proceedings permitted the minimum use needed to start new proceedings concerning the same or related subject matter. Extending that wording to existing litigation would undermine rule 31.22 of the Civil Procedure Rules 1998. The contrary argument was misconceived: paras [82]–[103].
3. Collateral use is construed broadly. It encompasses use of information derived from a document and may include reading, copying, searching, referring to its characteristics or provenance, or reviewing it to advance other proceedings. A party may recognise another proceeding’s relevance during a permitted review and may use a document to seek permission. Further collateral review or deployment requires permission or agreement: paras [54]–[60], [92]–[95].
4. Searches genuinely directed to the enforcement proceedings were permitted despite overlap with the related proceedings. By contrast, applying the related proceedings’ search terms, instructing the court-appointed reviewing lawyers to apply those terms, and deploying information concerning “Sherry” in correspondence were serious breaches. A request from an opponent for case-management assistance could not justify non-compliance: paras [108]–[118].
5. Retrospective permission is exceptional. The court considered prejudice, inadvertence, whether a timely application would have succeeded and the proportionality of refusing use. Permission was justified by the strong policy favouring enforcement of judgments, the close connection between the proceedings, the documents’ evident relevance, the absence of material prejudice or case-management disruption, the non-deliberate character of the breaches and the lack of clarity in the rule’s drafting: paras [119]–[137].
6. Refusing permission would have imposed a disproportionate penalty on the applicant for its lawyers’ failings. The formal findings of serious breach and the indemnity-costs order provided a significant sanction: paras [137]–[139].

• High Court, Commercial Court: In the underlying contractual proceedings, judgment was entered for the claimant in Lakatamia Shipping Co Ltd v Su [2014] EWHC 3611 (Comm); [2015] 1 Lloyd's Rep 216.
• High Court, Commercial Court: The first defendant was committed for contempt in Lakatamia Shipping Co Ltd v Su [2019] EWHC 898 (Comm). His appeal and later attempt to obtain early release were dismissed, the latter in [2019] EWHC 3180 (Comm).
• Court of Appeal: In the related proceedings, the discharge of the freezing order against the additional party in [2019] EWHC 1145 (Ch) was overturned in [2019] EWCA Civ 2203.
• High Court, Commercial Court: The present court granted retrospective permission for collateral use and imposed indemnity costs.