Ben Leeson & Anor v Donald McPherson

Permission for collateral use of documents disclosed in civil proceedings should be granted only where special circumstances provide a cogent reason, and the applicant shows that the relevant public interests outweigh the policy supporting restricted use of compelled disclosure. Relevant considerations include the purpose of the proposed use, the relationship between the proceedings, efficient administration of justice, existing disclosure, likely future public use, and prejudice to the objecting party. Where the proposed use is to assist an effective inquest into the same issue as the civil claim, those considerations may justify permission. Permission may be granted while preserving the document’s evidential status in the other proceedings and the parties’ ability to make submissions about it.

The claimants brought civil proceedings alleging that Donald McPherson unlawfully killed Paula Elizabeth Leeson and dishonestly forged documents. They had agreed an extensive schedule of facts for the purposes of the claim. Solicitors acting for the claimants asked permission to provide it to the area coroner conducting the inquest into Ms Leeson’s death, principally to assist case management at a forthcoming pre-inquest review.

The request engaged the collateral-use restriction in CPR 31.22 because the agreed-facts document referred extensively to documents disclosed in the civil proceedings. The defendant objected, maintaining that the agreed facts had been agreed only for the civil claim. The central issues were whether permission was already available under CPR 31.22(1)(a) and, if not, whether it should be granted under CPR 31.22(1)(b).

1. Application granted. The claimants’ solicitors were permitted to provide the agreed facts to the coroner and to make them available for use by the coroner and interested parties in the inquest. The permission was stayed for seven days after service on Greater Manchester Police, with provision for any application to discharge or vary.
2. CPR 31.22 was engaged even though the agreed-facts document was composite and had not itself been disclosed. The restriction applied strictly to the disclosed documents and their contents referred to in that document. The court left open whether a wider common-law protection applied to the agreed-facts document itself, because that issue would not affect the result.
3. The exception in CPR 31.22(1)(a) was not engaged. A document must have been read to or by the court, or referred to at a public hearing, in the relevant sense. A limited reference in a skeleton argument to an admission about criminal convictions did not expose the other documents and information encompassed by the agreed facts to collateral use.
4. Permission under CPR 31.22(1)(b) required special circumstances constituting a cogent reason, and the applicant bore the burden of showing that those circumstances outweighed the public interest in protecting compelled disclosure and encouraging full and frank disclosure. The court should be particularly slow to permit collateral use where a party objects on a properly principled basis.
5. That threshold was met. The civil proceedings and inquest concerned the same central issue, namely the cause of death and whether there had been unlawful killing. The inquest was a proper public purpose, and the agreed facts were likely to assist proportionate and effective case management. Much of the underlying material was already before the coroner; the schedule was likely to become available for collateral use after the civil trial; and no significant prejudice to the defendant was identified.
6. The permission was without prejudice to the evidential status of the agreed facts in the inquest, to submissions by the defendant or other interested parties, or to any determination by the coroner.

First-instance decision. No appellate history was stated in the judgment.