Reading a document may be breach of the collateral undertaking

22/02/17

In the commercial court Knowles J has considered the ambit of the collateral undertaking which applies to documents disclosed in prior proceedings.

In Robert Tchenguiz v Grant Thornton UK LLP  documents relevant to the proceedings were in the hands of the defendants which had been disclosed in prior proceedings and to which the collateral undertaking applied. The defendants sought declarations that they were entitled to read such documents in the course of conducting disclosure in the instant proceedings and to disclose them to other parties without the need to seek leave from the court, or alternatively sought permission.

This raised the question as to what was meant by CPR r31.22 and r31.12 which prohibits “use” of disclosed documents other than for the purpose of the proceedings. The defendants argued that “use” in context meant “deploy” and that a more literal interpretation of “use” would defeat the purpose of the rules.

Knowles J rejected this contention. Citing the obiter dictum of Christopher Clarke LJ in IG Index v Cloete, he said that such an interpretation as put forward by the defendants was inconsistent with the wording of the rule and the distinction there drawn between use and purpose. Deployment was merely one form of use.  Although not every form of document review would constitute a breach, reviewing a document to decide whether separate proceedings should be brought fell within the prohibition in the rules. However, the judge granted permission for the use of the documents as requested. 

The judgment appears here.