Collateral use of disclosed documents: Permitted?

During litigation, parties are required to exchange all documents that are relevant and without privilege. Throughout this process, an opposing party is likely to provide you with documents that you would not otherwise have had access to. Some documents may prove useful to you for an ulterior purpose. However, pursuant to the Harman undertaking rule, any documents received during discovery cannot usually be used for any purpose other than for the proceedings in respect of which the information was first produced.

Overview of Harman undertakings

The term ‘Harman undertaking’ is derived from the case of Harman v Secretary of State for the Home Department [1983] 1 AC 280. This case solidified the rule that documents provided during discovery cannot be used for any purpose other than for the litigation itself. It is an implied undertaking to the court and materialises during any court proceeding.

Since that decision, the rule has evolved. Parties to litigation, including their lawyers and any third party who receives the documents for the purpose of the litigation (for example, an expert witness), are bound by the Harman undertaking.

A breach of the Harman undertaking is considered contempt of court. Accordingly, the consequences are serious and can result in civil and criminal penalties including jail time (although imprisonment is unlikely); see for example regulation 75.11 of the Supreme Court (General Civil Procedure) Rules 2015.

No defences are available when a breach has occurred.

Lessons learnt

Cornwalls was recently involved in a proceeding that included several parties (Cornwalls proceeding), where a party (Party A) sought leave of the Supreme Court to be released from its Harman undertaking.

During the course of the litigation, the court had ordered that another party (Party B) provide Party A with particular documents. Cornwalls acted for Party B.

In breach of its Harman undertaking, Party A used one of the documents provided to issue notices against Party B. The issuing of the notices was not related to the litigation and so was for an ulterior purpose.

Upon Party B instigating proceedings for breach of the Harman undertaking, Party A (including its legal representatives) apologised for the breach and paid Party B’s costs. Subsequently, Party A sought leave from the court to be released from its Harman undertaking so that it could again use the document to issue the notices.

In coming to its decision, among other factors, the court considered the private nature of the document, Party A’s prior misuse and how Party A had addressed the breach. Regarding these factors, the court reasoned that:

  • despite the fact that the document was for the private use of Party B, use by Party A of the document for a specified list of reasons would not result in prejudice or inconvenience to Party B;
  • the prior misuse was ‘deplorable’ and reflected badly on the integrity of the directors of Party A; however,
  • Party A had since apologised to Party B and the court (and had paid indemnity costs to Party B), and so had ‘purged’ itself of its misdeeds.

Accordingly, the court gave leave for Party A to be released from the undertaking and to use the document for a prescribed list of purposes only.

Are you always bound by the Harman undertaking?

The short answer is yes, unless the document is admitted into evidence, has entered the public domain or, as in the above example, a court grants leave. Harman undertakings are ongoing, irrespective of whether the matter has concluded.

It is always best practice to seek leave of the court to be released from the undertaking, rather than asking for forgiveness after a breach has occurred.

If the document is admitted into evidence in a proceeding

The parties to the litigation, their lawyers and third parties are released from their Harman undertakings upon a document being admitted into evidence. Once admitted into evidence, the information enters the public domain and loses the confidentiality attached to it (see for example British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571).

It is important to note that only the information that has become public will no longer fall within the Harman undertaking. Documents that are already in the public domain, for example on a company’s website, are not subject to the implied undertaking. Conversely, documents that are the subject of oral argument, but which are not tendered in court, are not likely to be considered to have entered the public domain; see for example Connective Services Pty Ltd and Another v SLEA Pty Ltd and Others [2017] VSC 182.

With leave of the court

As in the example of the Cornwalls proceeding, another way for a party to be released from its Harman undertaking is if the party seeks, and is granted, leave from the court to be so released (see for example Springfield Nominees Pty Ltd v Bridgelands Securities Pty Ltd (1992) 38 FCR 217 and Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283).

The party seeking to be released from the Harman undertaking must show the court ‘special circumstances’ in its favour. In Springfield, Wilcox J listed some of the relevant considerations in determining whether special circumstances existed, including:

  • the nature of the document;
  • the circumstances under which the document was created;
  • the attitude of the author of the document;
  • any prejudice the author may incur if the applicant were released from the Harman undertaking;
  • whether the document pre-existed the litigation or was created for the litigation (and therefore expected to enter the public domain);
  • the nature of the information in the document;
  • the circumstances in which the party seeking to be released from the Harman undertaking was provided with the document; and
  • the contribution the document would provide in achieving justice for the purpose the applicant is seeking to use it.

In the Cornwalls proceeding, some of the special circumstances considered were the nature of the document, the prior misuse and how that prior misuse had been addressed.

By way of further example, in Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315, the court granted leave for the plaintiff to use affidavits filed in a previous proceeding in a new proceeding. The affidavits were argued to be relevant to the new proceeding, in which the second and third defendants were going to transfer property – which would prejudice the plaintiff’s position.

Conversely, in Tiger Nutrition Pty Ltd v De Silva [2019] NSWSC 1269, the court found that no special circumstances arose. In this case, the applicant was seeking to be released from its undertaking in order to use documents in a separate proceeding. However, the court found that releasing the applicant from the undertaking was unlikely to achieve justice in the new proceeding. To make use of the documents subject to the undertaking in the new proceeding, the applicant would have had to seek leave in the new proceeding to rely on additional evidence. That leave had not yet been sought and was not guaranteed. Such an application would likely have led to an adjournment in the new proceeding, which was not thought to be an efficient use of the court’s resources.

Summary

Although it may be frustrating, you cannot use a document to your advantage in relation to a collateral issue unless you have been released from your Harman undertaking.

As mentioned, the consequences of a breach can be grave. Accordingly, litigants must be conscious of their Harman obligations and be careful to avoid, even inadvertently, breaching them.

Disclaimer
This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

The Authors

Radhika Kanhai

PARTNER, MELBOURNE

Madison Davies

LAWYER, MELBOURNE

Key Contacts

Radhika Kanhai

PARTNER, MELBOURNE

Paul McCann

PARTNER, SYDNEY

Paul Evans

PARTNER, BRISBANE