David Robert Smith v Sir Robert McAlpine

Permission for collateral use of witness statements under CPR 32.12(2)(b) depends on the interests of justice. The applicant must ordinarily show special circumstances amounting to cogent and persuasive reasons. The court must balance the proposed user’s interests against the interests protected by the default restriction, including the interests of the witnesses who gave the statements.

A strong public interest in an independent investigation, together with the need for a broad and reliable evidential basis, may justify permission. Concerns about identification, adverse findings and reputational harm may be addressed by suitable safeguards. Where costs submissions were not properly addressed before an order was made on the papers, the court may revoke and replace its costs order under CPR 3.1(7).

The underlying proceedings between the parties had settled. The applicant sought permission under CPR 32.12(2)(b) to allow specified paragraphs of defence witness statements to be used by independent investigators conducting an inquiry into the possible involvement of past or present trade union officers or officials in construction-industry blacklisting.

The application was determined on paper. The respondent opposed collateral use, relying on the witnesses’ objections, the availability of other evidence and the absence of demonstrated necessity. The court granted permission subject to safeguards preventing identification of the witnesses and adverse findings against them. The court then reconsidered its initial costs order after receiving further submissions.

1. Collateral use. The court granted permission under CPR 32.12(2)(b) for the specified witness-statement paragraphs to be used in the independent inquiry, subject to the proposed safeguards.
2. The word “use” in CPR 32.12 and CPR 31.22 has a broad meaning. It includes reading, copying, showing or referring to the document, using information contained in it, and using characteristics such as its provenance. The restrictions do not prevent use for assessing whether an exception applies, seeking permission or seeking consent.
3. The discretion under CPR 32.12(2)(b) is governed by the overall interests of justice. The court must balance the interests of the person seeking collateral use against the interests protected by the default rule. Permission will usually require special circumstances amounting to cogent and persuasive reasons.
4. The applicant discharged that burden. The inquiry had strong public interest, concerned potentially criminal conduct in an important employment sector and required a broad evidential base to produce full, fair and robust findings. The fact that the underlying litigation had settled many years earlier was also relevant.
5. The witnesses’ legitimate concerns did not require refusal. The proposed restrictions on identification and adverse findings adequately addressed the risk of injustice to the statement-makers.
6. Costs. The court concluded that it was not functus merely because an initial sealed costs order had been made. Since the parties had not made proper costs submissions when the merits were determined on paper, the position was analogous to an application determined without a hearing under CPR 23.8(3). The court exercised its power under CPR 3.1(7) to revoke the original costs order and replace it, inviting the parties to draw up a new order.

First-instance application determined on paper by the High Court (King’s Bench Division). The underlying proceedings had settled before the application.