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Carrying forward a forensic triumph (the use of decisions and documents from one set of proceedings in another)

Situations can arise where an insurance company is faced with a number of claims with similar features. There might be a string of cases with the same companies involved (e.g. credit hire) or which are supported by the same expert (e.g. holiday sickness and cavity wall insulation). To what extent can the parties’ experiences in one civil case be used to advantage in another (different considerations apply to the subsequent use of material from criminal proceedings).

First, it may be observed that judicial findings themselves are of little use in other cases involving different parties (not to be confused with statements of legal principle). Judicial findings made in a previous case are not admissible in later proceedings as evidence of the facts so found, provided that those findings are not binding as an estoppel per rem judicatem (as a thing already judged) (see per Sir Andrew Morritt VC in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1).

Secretary of State for Trade and Industry v Bairstow involved the former managing director of a company who brought wrongful dismissal proceedings. Dismissing his claim, the Judge found that the director had been guilty of grave misconduct. The Secretary of State wished to rely on those findings in subsequent proceedings for a disqualification order against the director. The findings in the wrongful dismissal proceedings were not admissible in the Secretary of State’s proceedings.

If a Defendant in one set of proceedings obtains a finding that the Claimant’s claim involved dishonest evidence, for example evidence coming from a company which provided credit hire services, then the Defendant would not be able to rely on that finding in a different case brought by another Claimant in respect of a different accident using similar evidence from the same company. Naturally, this principle would also apply to expert evidence which was found to be dishonest in one case. A finding of dishonesty against an expert may, however, give cause for disciplinary proceedings by their regulator or professional body.

Whilst judicial findings may be inadmissible, a party can seek to rely upon the evidence used in previous proceedings including transcripts of cross examination. It may, of course, be difficult to persuade a Judge that it is relevant for transcripts of evidence from another case to be considered in aid of the assessment of witnesses in the case before the Court unless there are identical factual issues on which the witnesses contradict themselves. But what about the use of documents from one case in another?

Rule 31.22 of the Civil Procedure Rules 1998 (CPR) provides for the use of disclosed documents for other purposes. Rule 32.12 of the CPR provides for the use of witness statements for other purposes. Each rule provides a general prohibition upon the ‘collateral’ use of disclosed documents and witness statements with exceptions.

With regard to CPR 31.22, documents may be used for purposes other than the proceedings in which they are disclosed where (a) the document has been read to or by the Court, or referred to, at a hearing which has been held in public, (b) the Court gives permission or (c) the party who disclosed the document and the person to whom the document belongs agree. The Court can make an order restricting or prohibiting the use of the document even where it has been read to or by the Court, or referred to, at a hearing which has been held in public.

Documents referred to in Court include those read by the Judge outside of Court which informed the conduct of the hearing in Court, even if those documents may only briefly have been referred to in Court (see per Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498; a case decided under the old rules).

The rationale for the restrictions upon the collateral use of disclosed documents was summarised by Sir Nicolas Browne-Wilkinson VC in Derby v Weldon (No 2) (unreported, 19 October 1988):

“It will be helpful to state in outline the English law applicable to documents obtained on discovery in an action. The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents.

As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action, that right of privacy is invaded and the litigant is forced, under compulsion by the process of discovery, to disclose his private documents. But, such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given, the Court is astute to prevent documents so obtained from being used for any other purpose. As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not, without the consent of the Court, to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed.”

If the document has been referred to in a public Court hearing then the privacy which is otherwise protected has gone, subject to restrictions being imposed upon the reporting of the hearing. Likewise, if the party to whom the document is private waives his rights in that privacy then there can be no objection to further use of the document.

With regard to CPR 32.12, the restrictions on the further use of witness statements do not apply if (a) the witness gives consent in writing to some other use, (b) the Court gives permission for some other use or (c) the witness statement has been put in evidence at a hearing held in public. In contrast to CPR 31.22, CPR 32.12 does not make express provision for restricting or prohibiting the use of a witness statement even though it has been used in a public hearing. The protections provided by CPR 39.2 will, however, be available to prevent any witness statements from being used in public, in appropriate circumstances.

In SmithKline Beecham plc v Generics (UK) Ltd [2004] 1 WLR 1479, the Court of Appeal considered a patent dispute in which there were connected infringement and revocation of patent proceedings. Certain documents were obtained from third parties and produced on terms of confidentiality to assist with those proceedings. At the conclusion of the infringement and revocation proceedings, the Judge granted an application to make an order prohibiting use of the documents permanent. Shortly afterwards the Judge dismissed an application by the patentees for permission to use the documents in a third set of proceedings which it had commenced against another for infringement of the patent. The patentees appealed against the Judge's decision to make the order permanent and his refusal to release the documents for use in the third set of proceedings. The Court of Appeal, overturning Pumfrey J, lifted the order and allowed the documents for use in the third set of proceedings, amongst other things, upon the grounds that there was a real argument that the documents were discoverable in the third set of proceedings and so refusing to lift the order would deny the patentees the use of documents which it could have used had the first set of infringement proceedings not taken place. Further, protections upon the documents could again be put in place the third set of proceedings. The paramount consideration was the interests of achieving justice between the parties before the Court.

This issue was considered again by the Court of Appeal in Tchenguiz v Serious Fraud Office [2014] EWCA Civ 1409 where the decision went the other way. Mr Tchenguiz was a businessman, who operated a range of businesses through a complex corporate structure based offshore, which included a trust of which he and his family were the principal beneficiaries. The SFO had investigated Mr Tchenquiz for possible criminal offences but, following searches of Mr Tchenquiz’s home and business premises, discontinued the investigation without charges being brought. In unrelated proceedings in Guernsey involving a trustee of the family trust, Mr Tchenguiz sought to make use of documents disclosed by the SFO in the English proceedings. His application was refused by Eder J in respect of various documents constituting or recording communications between the SFO and the Guernsey authorities. Mr Tchenguiz appealed.

The principal reason why Mr Tchenguiz lost his appeal was upon the consideration of the integrity of criminal investigations and, in that case, information as to (a) the methodology of the SFO and (b) interaction between the SFO and the Guernsey authorities. In giving his judgment on the appeal, Jackson LJ stated that decisions in these cases are highly fact sensitive. The Court is weighing up conflicting public interests in a variety of different circumstances. Upon reviewing the authorities,

he detected some tendency in the judgments to slant the language used, or at least the emphasis, somewhat in favour of the public interest which prevails in that particular case. In paragraph 66 of his judgment, he set out general principles which may be distilled as follows:

  • The collateral purpose rule now contained in CPR 31.22 exists for sound and long established policy reasons. The Court will only grant permission under rule 31.22 (1) (b) if there are special circumstances which constitute a cogent reason for permitting collateral use.
  • There is a strong public interest in facilitating the just resolution of civil litigation. Whether that public interest warrants releasing a party from the collateral purpose rule depends upon the particular circumstances of the case. Those circumstances require careful examination. There are decisions going both ways in the authorities.
  • It is for the first instance Judge to weigh up the conflicting public interests. The Court of Appeal will only intervene if the judge erred in law or failed to take proper account of the conflicting interests in play.

This issue arose again recently, in the context of civil fraud, in the case of Manek v Wirecard [2020] EWHC 406 (Comm). The Claimants had held the minority shareholding in an Indian company. They sold their shares at an undervalue to another company and they were sold on, in fairly short order, such that the ultimate purchaser paid 10 times the value for the shares that the Claimants received. The Claimants brought a first set of proceedings against, amongst others, the controllers of the first company to whom their shares had been sold before commencing separate proceedings against the ultimate purchaser alleging that it had also been involved in the same conspiracy to defraud them. Moulder J granted permission in the second case for the Claimants to use documents disclosed in the first case principally because the two sets of proceedings were closely related, relevance was clearly established and the Defendant would not be prejudiced if permission was granted.

The authorities clearly show that the collateral purpose rule continues to be recognised by the Court as having sound rationale and will be enforced by the Court unless there is good reason to depart from it. It is clearly inadequate for a party simply to introduce documents into subsequent sets of proceedings, as one often sees, in the apparent hope that no objection will be taken. Applications need to be made and determined having regard to the principles referred to above. Before making any application, careful consideration should be given as to whether the documents to be subject to an application are relevant or will assist with the determination of the issues in the case in hand. Generally, it might be said that it is always best to rely upon one’s own evidence and investigations in respect of the case in hand and that looking for assistance from that which has passed in other proceedings is a secondary line of approach, albeit in the right circumstances it may be very useful.

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