Mahon v Rahn & Ors [1997] EWCA Civ 1770 (23 May 1997)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(Mr Justice Brooke)

Royal Courts of Justice
Strand
London WC2
23rd May 1997

B e f o r e :

LORD JUSTICE STAUGHTON
LORD JUSTICE OTTON
LORD JUSTICE SCHIEMANN

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(1) PATRICK MAHON
(2) ANDREW LESLIE KENT
Appellant
– v –
(1) DR CHRISTIAN MAHON
(2) HANS-JAKOB BIEDERMANN
(3) MARTIN HAAB-BIEDERMANN
(4) FRANK BODMER
Respondent

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(Handed Down Transcript of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

____________________MR C GRAY QC and MISS V SHARP (Instructed by Sheridans, London WC1R 0DY) appeared on behalf of the Appellant
MR P MOLONEY and MISS C ADDY (Instructed by Bircham & Co, London SW1H 0DY) appeared on behalf of the Respondent

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

LORD JUSTICE OTTON: This is an appeal from the orders of Brooke J made on 19 June 1996 in which he struck out the appellant’s action for libel pursuant to RSC O.18 r.19 and the Inherent Jurisdiction of the Court on the ground that it constitutes an abuse of process of the Court.

Background

At all material times the plaintiffs were the Managing Director and the Corporate Development Manager of TC Coombs a firm of Stockbrokers in the City of London. The defendants are the partners in a private Swiss Bank in Zurich known as Rahn and Bodmer Banquiers. In the late 1980’s the bank, acting as agents, placed a purchase order with the stockbrokers for the purchase of shares in a Canadian Company called Coastline Resources for C$5million. In September 1988 the bank paid C$3million but did not pay the balance of C$2million despite a number of requests from the stockbrokers. Towards the end of 1990 the stockbrokers came under investigation by the Serious Fraud Office and the bank furnished a number of documents to the SFO at their request for the purposes of their enquiries. In late 1990 The Securities Association (TSA) also got in touch with the bank. On 20 December 1990 Dr Paltzer a partner in a Swiss law firm wrote a letter to Mrs Rose Wright of TSA setting out information and enclosing documents which related to the dealings in connection with the Coastline Shares. The letter stated :

“I rely on your assurances of complete confidentiality with respect to the following information and documentation provided to you by our client, Rahn and Bodmer, Zurich. Since Mr M Kaiser who was responsible for the TC Coombs – Coastline transaction is not with the bank any more, it is difficult for Rahn and Bodmer to piece together with certainty the relevant facts. Therefore, the following outline is, to a large extent, based on presumptions and retrospective assessments of documents and information obtained by the bank. The bank does not warrant the accuracy and completeness of the following outlines. We, however, hope that the information and the documents we are providing to you will be helpful in your proceedings.”

At the same time Dr Paltzer wrote to the SFO attaching a copy of that letter without the enclosures. The original letter was passed by TSA to the SFO under S.2 Criminal Justice Act 1987 in the course of criminal proceedings for fraud instituted by the SFO against the plaintiffs in connection with their dealings with the bank.

The plaintiff was duly arraigned at Middlesex Guildhall on an indictment containing two counts of conspiracy to defraud against both defendants and attempting dishonestly to obtain property by deception against the first defendant alone.

Two days prior to the pre-trial review the SFO disclosed to the defence a copy of the letter to TSA. The letter was produced as part of the exhibits to the Witness Statements. When giving evidence Ms Garlick of the SFO produced the letter during her evidence in chief. It was read in open court and defence counsel cross-examined her and Dr Rahn (first defendant) upon it when he gave evidence. No application was made either on behalf of the defendants or the prosecution before, during or after the criminal trial for any order restricting the use for which the letter could be put. After several weeks, at the end of the prosecution case, counsel for the plaintiffs submitted that there was no case to answer. The submission was upheld by the trial judge and verdicts of not guilty were recorded against both plaintiffs.

The SFA (the successor to TSA) acknowledge that the SFO did not seek or obtain the consent of Dr Paltzer to disclose voluntarily to a third party his letter to Mrs Wright. During the pre-trial procedures the Crown made a claim of public interest immunity in respect of confidential information in the SFO’s possession which included correspondence between Rahn and Bodmer and their legal advisor and TSA. No order was made in relation to “discovery” of correspondence between Rahn and Bodmer and TSA. In giving his ruling the trial judge said: :

“It is urged in favour of the immunity claim that disclosure would result in publication of sources of information and informants, which would inhibit the provision of a lot of such information in the future and so restrict the ability of the authority to discharge its duties – statutory duties – adequately. I ask myself: is immunity essentially necessary for the proper functioning of the public service which the authority is discharging? One must bear in mind that these documents are contemporary material (they were in some cases subsequent material) with the events which are complained of by both sides, and hence may prove of some value in helping the defence in seeking to ascertain the true attitudes and influences exerting themselves on the decisions and requirements of the Securities & Futures Authority. I therefore hold that in general (I am generalising because I have not seen the documents) documents in classes 1 to 4 should be disclosed to the defence, but I would qualify that by saying that there may well be some instances where the document itself discloses a particularly sensitive source which perhaps ought not to be disclosed in the particular circumstances of the case. If agreement on any such document’s disclosure cannot be reached by the parties, it may well be that the matter will have to be returned to the court and I will have to peruse the document and perhaps modify this decision in relation to that document.”

The Proceedings

The plaintiffs claim damages for libel published or caused to be published by the defendants in the letter sent to Rosalind Wright of TSA. It is the plaintiffs’ case that the letter contained an entirely inaccurate and misleading account of the defendant’s dealing with TCC, that the defendants deliberately misled TSA and the SFO in order to avoid payment of C$2million to TC Coombs and dishonestly withheld crucial documents from the TSA and SFO in order to allege that the entire agreement for the sale of the Coastline Resources shares was fraudulent. The action was started by writ issued on 17 December 1993 in which the plaintiffs claim damages for libel in the letter to TSA. The statement of claim was served on 8 December 1994. The defence served on the 26 February 1996 includes a claim for qualified (but not absolute) privilege and an assertion that the plaintiffs claim is vexatious and an abuse of process. The defendants issued a summons seeking to strike out the action on the grounds that the documents sued on was obtained by the plaintiffs by way of disclosure in criminal proceedings against them.

The Issues

Before Brooke J it was agreed between Counsel that there were five issues :

(1) Is there an implied undertaking in criminal discovery as there is in civil ?

(2) Does it apply to all documents disclosed by the Crown without regard to the question whether the Crown obtained them voluntarily or by compulsion ?

(3) Does it apply to documents disclosed by the Crown both as “used” and “unused” documents ?

(4) Does it continue to apply after the relevant document has been read or referred to in open court in the criminal proceedings ?

(5) If the undertaking continues to apply, and a libel action is commenced in breach of the undertaking, does the court have any discretion not to strike it out as an abuse of process ?

It must be emphasised that from the outset it was common ground between the parties that the letter and documents in question were not disclosed subject to any undertaking of confidentiality.

The learned judge answered all five questions in the affirmative and concluded:

“It follows, therefore, that in the present case the undertaking continues to apply, and these proceedings have been commenced in breach of it. While I would not wish to lay down any absolute rule, I can see no reason in the present context why this court should be willing to entertain proceedings based on a document that the plaintiffs had no business to be using without the consent of the Crown Court : as the Vice-Chancellor said in Derby v Weldon (supra), its use in such circumstances would prima facie constitute a contempt of court. For these reasons, therefore, I am of the opinion that these proceedings constitute an abuse of this court and that they should be struck out on these grounds.

Miss Sharp submitted that if I came to this conclusion innocent plaintiffs might be bereft of a remedy even though they had suffered grievously at the hands of a malicious complainant who for some technical reason could not be sued for damages for malicious prosecution notwithstanding the recent liberalising decision of the House of Lords in Martin v Watson (The Times, 14 July 1995). It may be that in such circumstances the Crown Court might be willing to exercise its discretion in favour of varying the undertaking, on an application made in due time, in order to permit justice to be done, for reasons similar to those which influenced the Court of Appeal in ex parte Coventry Newspapers Ltd. At all events there is nothing in my present judgment to deprive the Crown Court of the power to do justice, balancing all competing interests, along the lines advocated by the Court of Appeal in Marcel v Commissioner of Police for the Metropolis (supra).”

The same five issues fall for consideration on this appeal.

Issue (1): Is there an implied undertaking in criminal discovery as there is in civil?

Several matters need to be examined in order to decide this issue:

(a) what is the scope of the implied undertaking which applies in civil proceedings?

(b) what is the rationale for the existence of the implied undertaking in civil proceedings ?

(c) what authority exists as to the existence of such an implied undertaking in criminal proceedings ?

(d) what is the position in relation to discovery in criminal proceedings ?

(e) is it appropriate to imply an undertaking in criminal proceedings by analogy with the implied undertaking which exists in civil proceedings ?

(a) what is the scope of the implied undertaking which applies in civil proceedings?

In civil proceedings a party who obtains discovery may use the documents disclosed to him only for the proper purposes of conducting his own case, and there is an implied undertaking by him not to use them for any collateral or ulterior purpose – any misuse of the documents may be restrained by injunction or punished as a contempt. An action based on a misused document will, ordinarily, be dismissed as an abuse of process. The implied undertaking may, in exceptional circumstances and on the application of the party obtaining discovery be relaxed or modified by the Court [See Supreme Court Practice Vol 1 pages 420-1 at para 24/1/3].

In Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764G-765B, Hobhouse J stated:

“This undertaking is implied whether the court expressly requires it or not. The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court. It is thus a formulation of the obligation which has merit and convenience and enables it to be treated flexibly having regard to the circumstances of any particular case.”

The implied undertaking does not apply to documents which have been voluntarily disclosed by a party in the course of interlocutory proceedings (see Derby & Co Ltd v Weldon, The Times, 20th October 1988). In that case Sir Nicholas Browne-Wilkinson VC stated (page 7 of the transcript):

“The voluntary disclosure of documents in the course of interlocutory proceedings by a party does not come within the rationale which is the basis of the implied undertaking relating to documents disclosed on discovery. In relation to documents voluntarily disclosed the Court has not invaded the privacy of the party. The party has, for his own purposes in defending a case, decided himself to use the documents rather than maintain his privacy. It is the party who has destroyed the privacy of the document, not the Plaintiff or the Court…………………it is an unavoidable consequence of all litigation that a party who chooses to put in evidence, necessarily risks that such evidence becomes available to others.

In my judgment the special protection given to documents disclosed under compulsion of discovery procedures does not apply to any wider class of documents.”

However, once the document has been read to or by the Court or referred to in open Court, the matter is governed by RSC Ord 24 r14A, which was brought into force in order to reverse the effect of Harman v Home Office [1983] AC 280, HL.

RSC Ord 24 r14A provides that:

“Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court or referred to, in open Court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.”

[See Supreme Court Practice Vol 1 pages 455-6 at para 24/14A/1].

Rule 14A was considered by Drake J in Tejendrasingh v Christie (unreported), 25th October 1993. In that case, a document which had been disclosed in discovery in an action and read in open court, was used as the basis for four subsequent defamation actions. The plaintiff relied upon r14A as releasing him from his undertaking. Drake J stated (pages 12-13):

“The apparent effect on the implied undertaking by a party to whom a document has been disclosed on discovery seems at first sight clear enough: that is, that once the document has been read out or referred to in open court the party is completely freed from all restrictions and may use the document for any purpose whatsoever. That would include using the document as the basis for libel proceedings against strangers to the action in which the document was disclosed. It is a freedom which will apply unless, in accordance with a provision in the Order, the court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.

This complete freedom would however amount to a much greater change in the law than seems to have been the intended purpose for which the rule was made.”

He stated (pages 15-16):

“I think that the intention of the makers of the rule was merely to avoid the absurdity of the situation which arose in Harman v Home Office ….

If the effect of rule 14A is limited to permitting the party subject to the undertaking to make known the contents of the disclosed documents, but does not have the effect of freeing him to use it for any other purpose, including bringing a libel action upon it, then the injustice of limiting the category of those who may apply under rule 14A would not arise. On the contrary, it would seem to me to explain and make sensible the provision that the application should be made only by the owner of the document, or a party to the action in which it is disclosed.”

However, he recognised the danger of this limited approach :

“The difficulty I find in adopting that interpretation is that rule 14A expressly refers to any undertaking “.. not to use a document for any purposes….” – to which I give emphasis. It does not say “….any undertaking…. not to make public the contents of such a document.

But despite what I see as a considerable difficulty in interpreting this rule, I cannot find that the scope of rule 14A is such as to effect a fundamental change in the law and at the same time work a considerable injustice on anyone in the situation of six of the defendants in these actions.”

Drake J therefore held that the plaintiff could not use the document in question as the basis for the defamation actions.

An application for leave to appeal was refused (sub nom) Tejendrasingh v Metsons, (unreported) 20th May 1994, CA (Butler-Sloss LJ and Sir Michael Kerr). Butler-Sloss LJ stated (at page 9):

“Quite clearly, rule 14A, which was brought into effect to get rid of what have been called the absurdities of the Harman and the Home Office situation, is not to be used to enable a litigant who obtains documents in one set of proceedings to use them as the foundation for a wholly different, completely separate set of proceedings, as in this case for defamation.

It is not, as I said, a matter of confidentiality; it is a matter of the undertakings. The scope of rule 14A does not, in my view, give the applicant the right to start quite different sets of proceedings relying upon those attendance notes.”

The question of the exact scope of RSC Ord 24 r14A is not a matter which must be decided on the facts of this case which is concerned with the disclosure of documents in criminal proceedings. However, Drake J’s narrow interpretation of r14A sits uneasily with the rule’s wide wording. The decision must be read in the light of Sir Nicholas Browne-Wilkinson in Derby v Weldon (supra) :

“I believe the purpose behind O.24 r.16A is to produce the result save in truly exceptional circumstances that once a document has been used and referred to in open court, it is a public document and no special undertaking continues.”

The appellants have sought to rely upon this dictum, applying it by analogy to criminal proceedings.

(b) What is the rationale for the existence of the implied undertaking in civil proceedings ?

In Riddick v Thames Board Mills Ltd [1977] 1 QB 881, CA, (a case concerning the use of a memorandum disclosed in one action as the basis for a subsequent defamation action), the Court of Appeal held that a party who disclosed a document on discovery was entitled to the protection of the Court against any use of it otherwise than in the action in which it was disclosed. In the interests of public policy and the proper administration of justice, the plaintiff was not entitled to use it as the basis for the subsequent defamation action.[1]

Lord Denning at 896C-F stated:

“The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice. Very often a party may disclose documents, such as inter-departmental memoranda, containing criticisms of other people or suggestions of negligence or misconduct. If these were permitted to found actions of libel, you would find that an order for discovery would be counter-productive. The inter-departmental memoranda would be lost or destroyed or said never to have existed. In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, nor for bringing a libel action, or for any other alien purpose.”

Stephenson LJ at 901H-902A stated:

“…the obligation is owed to the party who produces the document on discovery and to the court; that party is entitled to the protection of the court against the use of the document otherwise than in the action in which it is disclosed; and that protection is necessary for the proper administration of justice; it is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it…”

and at 902H-903A:

“There may be cases in which a plaintiff would be justified in bringing an action on a document disclosed in an earlier action. I do not say that it could never be done without abusing the process of the court. But generally speaking it would be an abuse of its process and in the circumstances of this case the plaintiff’s use of this memorandum is an improper use which the court should not countenance.”

In Harman v Home Office [1983] AC 280, HL (a case concerning the disclosure of documents to the press which had been read in court at trial) the House of Lords held that the fact that the documents were read in open court did not bring the implied undertaking to an end. As referred to above, the effect of this decision was reversed by the RSC Ord 24 r14A. Even so it is illuminating to consider the reasoning.

Lord Diplock at 300A-B stated:

“The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.”

Lord Keith at 308B-H stated:

“Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done. In so far as that must necessarily involve a certain degree of publicity being given to private documents the result has to be accepted as part of the price of achieving justice. But the fact that a certain inevitable degree of publicity has been brought about does not, in my opinion, warrant the conclusion that the door should therefore be opened to widespread dissemination of the material by the other party or his legal advisers, for any ulterior purpose whatsoever, whether altruistic or aimed at financial gain……….”.

In Derby & Co Ltd v Weldon, The Times, 20th October 1988, Sir Nicholas Browne-Wilkinson V-C sought to update and rationalise the approach thus (at page 5) :

“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 a document 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.”

In Prudential v Fountain [1991] 1 WLR 756, Hobhouse J continued the process stated at 765

C-E :

“The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the Court between those parties and not for any other litigation or matter or any collateral purpose: …….

It is also to be noted that this principle is independent of any question of confidentiality. The documents produced on discovery may or may not be confidential in character; the implied undertaking and the restriction upon the use that may be made of the documents or information by the party compelling their disclosure is independent of the actual character of the document or information. Confidentiality is relevant to the principle of privilege but not to the compulsion principle.”

It is therefore apparent that the rationale for the existence of the implied undertaking in civil proceedings is based upon :

(1) the “compulsion principle” – the discovery process compels a party to disclose documents or information whether he wishes to or not, and is therefore an invasion of his privacy. A litigant’s rights give way to the need to do justice between the parties. Confidentiality is irrelevant. Voluntary disclosure does not attract the undertaking.

(2) the “full and frank disclosure principle” – it follows from the compulsion principle that the invasion of a litigant’s rights is counterbalanced by the limitation placed on the use to which the documents or information may be put, in order to encourage full and frank disclosure. This is achieved by the implied undertaking by the recipient to the court (not to the other party or any third party).

(c) what authority exists as to the existence of such an implied undertaking in criminal proceedings ?

Brooke J’s attention was drawn by Counsel to the three cases where the issue of whether there was an implied undertaking in criminal proceedings had been raised: British Coal Corporation v Dennis Rye Ltd [1988] 1 WLR 113Ex parte Coventry Newspapers [1993] QB 278 and McGrath v Chief Constable of Lancashire, unreported, 3rd April 1996.

In the British Coal Corporation case, documents created for the purpose of certain civil proceedings between the plaintiff and the defendants were handed to the police to assist with an investigation as a result of which criminal charges were brought against the defendants. Pursuant to the Attorney General’s Guidelines on the Disclosure of Information to the Defence, the documents were supplied to the defendants by the police prior to the criminal trial. In the course of the criminal trial the judge ordered that the plaintiff disclose to the defendants further documents relevant to the criminal proceedings. The plaintiff thereupon disclosed those documents and others which were not directly relevant to those proceedings. All the documents disclosed in the course of the trial had been created for the purpose of the civil proceedings. The defendants were acquitted and the plaintiff applied in the civil proceedings for the return of all the documents. The matter came before the Court of Appeal.

One of the grounds upon which the plaintiff based its claim was that, as the documents had been disclosed in the course of the criminal proceedings the defendants were bound by an implied undertaking not to make any use of them for a collateral purpose [see p1119H-1120]. The Court was referred to Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, Riddick v Thames Board Mills (supra) and Home Office v Harman (supra).

Neill LJ identified the issue but declined to rule upon it, at p.112 O-F :

“These authorities show that where discovery is made in civil proceedings the party to whom disclosure is made is bound by an implied undertaking not to use the documents disclosed for any collateral purpose. Such a collateral purpose would include the use of the disclosed documents in other proceedings. We were also referred to the recent amendment to the Rules of the Supreme Court, effected by Ord 24 r14A.

Basing itself on the existence of this implied undertaking in civil proceedings, the plaintiff argued that where documents are disclosed to the police for the purpose of the investigation of a possible criminal offence, and then made available to the defence in subsequent criminal proceedings in accordance with the practice authorised by the Attorney-General in the guidelines issued in December 1981, or are disclosed to the defence in the course of a criminal trial either by an order of the court or otherwise, the defendants to whom the documents are disclosed are bound by an implied undertaking analogous to that which exists in a civil action. In view, however, of the clear conclusion which I have reached on the question of legal professional privilege, I do not find it necessary to reach any decision on this aspect of the case.” [Emphasis added].

The court did not have to decide the issue.[2]

The second case, ex p. Coventry Newspapers (supra), concerned alleged malpractice by the West Midlands Police. B. had been convicted of unlawful wounding and his appeal against conviction was dismissed. The case was again referred to the Court of Appeal. The Court of Appeal (Criminal Division) ordered disclosure to B., for use on the hearing of the reference, of certain documents in the possession of the Police Complaints Authority (“PCA”) as a result of an investigation, on an implied undertaking not to use the disclosed documents otherwise than for the purposes of pursuing his criminal appeal on the reference, assurances having been given to informants that statements would not ordinarily be used otherwise than for the investigation of the complaint or for any criminal or disciplinary proceedings which might follow. The disclosed documents proved vital to the presentation of B’s case, his appeal was allowed and his conviction was quashed. The applicants (“CNL”) were the proprietors of a newspaper who were being sued for libel by two of the Serious Crime Squad officers. The applicants applied to the Court of Appeal (Criminal Division) to whom the implied undertaking had been given by B, to vary the undertaking to permit B to disclose to them the authority’s documents to enable them to plead justification in the libel action.

The Court of Appeal in the Coventry case was therefore not dealing with the question of whether such an implied undertaking existed in criminal proceedings, but whether such an implied undertaking should be varied. Nevertheless, it appeared from the judgment of the Lord Chief Justice, Lord Taylor (at 285E-G), that such an implied undertaking was assumed to exist:

“….it is an application at the suit of …… a third party for the Court to release the appellant from his implied undertaking pursuant to which discovery of the PCA documents was given under the court’s order …….

………But for such proposed order the appellant would clearly be unable to hand over the documents: he would be subject to an implied undertaking, analogous to that arising on discovery in civil proceedings, not to use the disclosed documents otherwise than for the purposes for which discovery was given, here the pursuance of the criminal appeal which is now, of course, successfully concluded. PCA assert the undertaking and CNL acknowledge it. What is in issue here is whether it should now be varied.” [Emphasis added].

The Lord Chief Justice also referred to (at 285H):

“a public interest underlying the implication of the undertaking in the first place….”

and accepted that the Court of Appeal (Criminal Division) alone, being the Court to whom the implied undertaking was given, had power to vary it (at 286A-B).

The Lord Chief Justice viewed the extent of the public disclosure of the documents as “but one of the considerations in play” and not the most material one in the circumstances of the case (at 286C-D). The question of public disclosure was argued firstly in relation to the issue of public interest immunity and secondly in relation to the implied undertaking.

On the public interest immunity issue, it was contended that the documents had been “read to or by the court, or referred to, in open court” within the meaning of RSC Ord 24 r14A (289F-H). Reliance was placed on the judgment of Sir Nicholas Browne-Wilkinson V-C in Derby & Co Ltd v Weldon, The Times, 20th October 1988 and 15th November 1988. It was submitted that, inviting analogy first between discovery in civil and in criminal proceedings, and then between the implied undertaking on the one hand and public interest immunity on the other, that the Court should conclude that the immunity too had lapsed: that there no longer remained any public interest in withholding the documents from further dissemination.

The Court rejected that submission (at 290A-C):

“This submission appears to us unsound on several grounds. First, because rule 14A in any event expressly provides for the court to order otherwise if appropriate. More fundamentally, however, because the suggested analogy at once breaks down when it is recognised that the public interest immunity presently in question is not, or at least not principally, confidentiality-based. Rather, as was pointed out in Makanjuola v Commissioner of Police of the Metropolis [1992 3 All ER 617], it is intended to reassure informants that their statements will only be used for the investigation of complaints and for such criminal or disciplinary proceedings as directly follow.

It is accordingly unnecessary to address the fine points of interpretation which rule 14A undoubtedly raises in the context of civil discovery for, even if Mr Browne’s arguments upon them are correct, that cannot avail him here.”

On the issue of the implied undertaking, Lord Taylor stated (291A-C):

“It is the argument founded upon analogy with RSC Ord 24 r14A and it seems to us in this context a little stronger. The reason is this. Rule 14A appears clearly to postulate confidentiality as the central consideration underlying the implication of the undertaking in the first place. Once that confidentiality is dissipated by the use of the documents in open court, prima facie the undertaking lapses. But the argument still cannot carry Mr Browne all the way. Because even if the element of confidentiality in the documents is entirely lost, the rule nevertheless clearly caters to other considerations: it expressly empowers the court “for special reasons” to order the undertaking to continue. Even, therefore, were the rule 14A analogy exact, the future of this undertaking remains in the court’s discretion.”

Counsel for the PCA submitted that only very exceptionally should the implied undertaking be varied to permit disclosed documents to be used for ulterior purposes, not least when the application was made by a third party and for the purposes of proceedings wholly unconnected with those in which discovery was ordered. It was contended that the “fortuitous intervention of a criminal appeal” during the course of the libel action, should not persuade the Court to depart from its strict approach to implied undertakings.

The Court dealt with that submission by drawing a distinction between an undertaking given in civil as opposed to criminal proceedings (at 291E-H):

“Mr Richards’ argument would, we accept, be formidable indeed had an implied undertaking with which we are concerned been one given in the usual way in civil proceedings. Certainly nothing that we decide in the present case is intended in the least degree to diminish the high importance rightly recognised to attach to the concept of the implied undertaking as a necessary way of underpinning the integrity of the discovery process. But characterisations of discovery such as that of Lord Keith of Kinkel in Home Office v Harman [1983] 1 AC 280, 308B, as “a very serious invasion of the privacy and confidentiality of a litigant’s affairs”, although of the clearest application to discovery given in private civil litigation, appear to us altogether less obviously apt in relation to an order such as that made by this court in the appellant’s appeal. Orders for discovery rarely are made in criminal appeals and, when made, generally go, if not to the prosecution, then, as here, to a statutory body. Such bodies surely need little in the way of encouragement before making full and frank disclosure.

In short, we have reached the conclusion that the public interest underlying this particular implied undertaking adds little, if anything, to that giving rise to the basic immunity claim attaching to these documents. If that immunity ought properly to be overridden in light of the countervailing public interest arising, then in our view that countervailing interest will outweigh too such limited value as still attaches to the implied undertaking.”

[Emphasis added]

Having considered the question of public interest immunity, the Court of Appeal ordered that the undertaking should be varied to permit disclosure of the documents which were incorporated in B’s appeal bundle, with the applicants undertaking to use the documents only for the purposes of defending the libel proceedings.

In doing so Lord Taylor noted that the reassurance given to police complainants expressly admitted of exceptions and that it was:

“a different case from those in which disclosure of this class of document is generally sought. The documents here are proposed for use not as a sword but as a shield; this is hardly a floodgate situation.” (at 292F-G)

In the circumstances of the case it seemed to the Court (at 292H-293A):

“nothing short of absurd to suppose that those who co-operated in this investigation – largely other police officers and court officials – will regret that co-operation, or that future generations of potential witnesses will withhold it, were this court now to release the documents to CNL to enable them to defeat if they can an allegedly corrupt claim in damages.”

However it should be noted that Lord Taylor had reservations about whether the Criminal Division of the Court of Appeal was the most suitable tribunal to deal with the case. He referred to the “very special facts of the case” and stated (at 286E):

“This is not a case where we need decide difficult questions of law or lay down principles of general application.”

It was for that reason that Brooke J found the case of limited assistance.

The Respondents accept that the narrow issue in ex p. Coventry Newspapers was a different one, namely, whether public interest immunity operated to prevent disclosure, but rely upon the fact that both parties in that case together with the Court unhesitatingly accepted that an implied undertaking existed (see Lord Taylor CJ at 285E-F). The Respondents contend that this was “persuasive authority of high value” to which the Judge was entitled to give considerable weight.

The third case was McGrath v Chief Constable of Lancashire (unreported, 3rd April 1996), a decision of Forbes J, which concerned two applications by Mr McGrath regarding his proposed use in civil proceedings of certain documents which formed part of the documentation served upon him by the Crown Prosecution Service (“CPS”) for the purpose of his criminal prosecution on various charges of fraud. The documents fell into two classes:

(1) Witness statements and exhibits served by the CPS as part of the prosecution’s case and upon which the prosecution intended to rely – “used material”

(2) Witness statements and other material upon which the prosecution did not intend to rely in order to advance the criminal proceedings and which had been served on Mr McGrath pursuant to the Attorney General’s Guidelines – “unused material”

In relation to the unused material, the Chief Constable of Lancashire had sought an injunction against Mr McGrath in July 1995 to restrain his proposed use of the unused material in intended libel proceedings on the basis that it was subject to an implied undertaking that it was to be used only for the purpose of defending the criminal charges. The Chief Constable withdrew that action upon Mr McGrath giving an undertaking to the Court (Morrison J) on 19th July 1995. Before Forbes J, Mr McGrath sought a release from the express and implied undertakings to which the unused material was accepted to be subject. Therefore the only issue before the Court was whether such a release should be granted.

Forbes J (at p5) stated:

“— in both the proceedings in July 1995 and in those before me, it was accepted on behalf of Mr McGrath, in the light of the decision of the Court of Appeal in Ex Parte Coventry Newspapers Ltd (1993) QB 278, that where “unused material” has been served pursuant to an order of the Court, it is subject to the implied undertaking alleged……..On behalf of Mr McGrath, Mr Bloom QC therefore accepted that, given the legally enforceable nature of the obligation to disclose “unused material” to the Defence, the unused material in this case was subject to the implied undertaking —.”

In relation to the used material, Mr McGrath sought a declaration that certain of the documents forming part of the used material were not subject to any implied undertaking that they could only be used by Mr McGrath in the defence of the relevant criminal charges, or alternatively a release from any such implied undertaking. It was therefore an issue before the Court whether witness statements and other documentary exhibits served on a defendant as part of the prosecution case were subject to an implied undertaking that the documents would be used solely for the purposes of those criminal proceedings.

On this issue, Forbes J considered the ex p. Coventry decision and noted that the documents in question in that case were not the statements and exhibits which had been served on B as part of the prosecution’s case against him in the original criminal proceedings and :

“In my judgment, it is clear that the documents in question were held subject to an implied undertaking by B to the Court that he would not use those documents otherwise than for the purposes for which discovery had been given – namely the pursuance of the criminal appeal …..”

Counsel for Mr McGrath submitted that an analysis of the nature and reasons for the analogous implied undertaking in civil proceedings showed that the reasons for such an implied undertaking did not apply in the case of used material in criminal proceedings the contended that the essence of the implied undertaking in civil proceedings was the compulsive nature of the process of discovery, involving a serious interference with the right of privacy. It was submitted that the documents served by the prosecution as part of the evidence upon which it would rely in the criminal proceedings (“the used material”), were not served under compulsion and there was no invasion of privacy. He did accept that the prosecution’s obligation to disclose its evidence in advance of trial was compulsory in nature.

However, Forbes J was unpersuaded by these submissions (at pages 11-13):

“The compulsion, to which the Prosecution is subject, to disclose its case in advance of a trial on indictment, does not arise as a mere incident of the burden and standard of proof which must be met by the Prosecution in criminal proceedings. If that were the case, the compulsion would apply also to all summary trials – in the vast majority of which there is no advance disclosure by the Prosecution of the evidence upon which it intends to rely. In my opinion, the compulsion on the Prosecution to disclose its case to a Defendant in advance of trial on indictment is a direct consequence of the decision to prosecute the alleged offender on indictment, following investigation of an alleged offence by the appropriate authorities…. The vast majority of those who supply information to the Police expect and are entitled to expect that the information will only be used for the purposes of the investigation and resulting criminal proceedings. For all other purposes the information is, in effect treated as private.

In the present case therefore, I am satisfied that the CPS did act under compulsion of law in serving the witness statements and other documents upon which the Prosecution relied in support of the criminal proceedings brought against Mr McGrath (ie the “used material”). Accordingly, for those reasons, I reject the fundamental and principal submission by which Mr Bloom sought to persuade me that “used material” in criminal proceedings is not subject to the alleged implied undertaking, in contrast to the position which he accepts applies to “unused material”. In my opinion, the position relating to the disclosure of “used material” in criminal proceedings is as analogous to the process of discovery in civil proceedings as that of “unused material”. [Emphasis added]

It was submitted that there was a public interest in ensuring that any documents or witness statements obtained by the police in the course of investigating crime would only be used for the purposes of the resulting criminal proceedings (if any) and that such a restriction on the use of documents was needed to reassure informants and to secure their confidence and co-operation. Without such reassurance the public interest in the proper and successful prosecution of crime would suffer. (page 13)

Forbes J stated (at pages 14-16):

“These are compelling submissions and, in my judgment, they are correct. I am satisfied that the implied undertaking, which was recognised in Ex parte Coventry Newspapers, is one which attaches to all the documents disclosed by the Prosecution for the purposes of the criminal proceedings – whether the documents, in the event, are “used” or “unused” material.

Lord Taylor CJ made it clear at page 291 of his judgment in Ex parte Coventry Newspapers that there is a public interest underlying the implied undertaking and that, for all practical purposes, that public interest is co-extensive with the public interest in protecting the documents in question from disclosure – a public interest immunity which was then thought to subsist in the documents which were the subject matter of that judgment.

It should be noted that the House of Lords has since made it clear that there is no public interest immunity attaching to the class of documents which the Court was considering in Ex parte Coventry Newspapers: see R v Chief Constable of West Midlands, ex parte Wiley [(1994) 3 WLR 433)]. However, I am satisfied that the decision in Ex parte Wiley does not affect the material and relevant reasoning and judgment of the Court of Appeal in Ex parte Coventry Newspapers which decision is binding upon me. In my opinion, that decision establishes that the underlying public interest, which is served by the imposition of the implied undertaking, is the same as the public interest which was then thought to justify the immunity from disclosure of the relevant class of documents. The public interest is defined as one which is not based on confidentiality but rather on the need to “reassure informants that their statements will only be used for the investigation of complaints and for such criminal or disciplinary proceedings as directly follow”; see Lord Taylor CJ at page 290B.

Forbes J then went on to consider whether Mr McGrath should be released from the implied undertaking which applied to both the “used” and the “unused material”, and from the express undertaking which he gave to the Court on 19th July 1995 in respect of the “unused material” (at pages 16-17):

“— it will only be in very exceptional or very unusual circumstances that the Court will be prepared to grant the necessary release or variation in the implied undertaking to enable the documents in question to be used in bringing and maintaining civil proceedings.”

The facts of that case were, in the judgment of Forbes J “sufficiently exceptional or unusual” to justify granting a variation of the relevant undertakings.

Brooke J stated that he saw the force in the submission that if a complainant gave information voluntarily which turned out to be untrue he or she ought to be prosecuted by the police for wasting police time or perverting the course of justice, but he stated that even if Forbes J went a little too far in the following passage:

“The vast majority of those who supply information to the Police expect and are entitled to expect that the information will only be used for the purposes of the investigation and resulting criminal proceedings. For all other purposes the information is, in effect treated as private.” (page 12)

that did not detract from the main thrust of what Forbes J had to say in that passage with

which Brooke J agreed. (page 14)

Having considered the above cases, Brooke J held that an implied undertaking did exist in criminal proceedings. He based his reasoning on the analogy of the implied undertaking which exists in civil proceedings and could see:

“no good reason why the same principles should not apply to documents disclosed under compulsion in criminal proceedings”, and :

“The Crown Court is also a superior court of record (Supreme Court Act 1981 s45), and I can see no good reason why the same principles should not apply to documents disclosed under compulsion in criminal proceedings. I am therefore not at all surprised that the very experienced counsel who appeared in Exp Coventry Newspapers v [& ?] Chief Constable of Lancashire made the concessions they did. In my judgment they were correct to do so as a matter of law.”

The attention of this Court has been drawn to the case of Taylor v Director of the Serious Fraud Office, unreported, 26th July 1996 – a decision of Sir Michael Davies in Chambers which was given after Brooke J had given judgment in this case.

In Taylor the defendants sought to strike out a defamation action which was based on documents which had been disclosed by the Crown as unused material to two men who were defendants in a fraud prosecution. The documents were then disclosed to the plaintiff by one of the accused’s solicitors. The documents had not been read out or referred to at the criminal trial, and were prima facie confidential and private. It was argued that there was no implied undertaking in criminal proceedings equivalent to that which applied in civil proceedings. Sir Michael Davies held that it was a breach of the implied undertaking to use the documents and struck out the action.

He referred to Ex parte Coventry Newspaper at page 10:

“To some extent, that case is, for our purposes, clouded by the fact that public interest immunity played a substantial part in the argument and decision, and it does not have any part to play here.”

and to the statement by the Lord Chief Justice (supra) that it was not a case where it was necessary to lay down principles of general application, and :

“But so trenchant is the judgment here, I do not think that comment prevents it from being of very considerable importance in this case.”

Counsel for the Plaintiff argued that in Ex parte Coventry Counsel should not have conceded that the same considerations applied to implied undertakings in criminal as civil proceedings and that the judgment of the Court of Appeal was coloured by that concession (page 12-13). The judge indicated that he was not as persuaded that such a “watering down” was justified:

He then referred to McGrath v Chief Constable of Lancashire (pages 13-15) and the judgment of Brooke J in this case and at page 16 stated :

“What makes what Forbes J said much stronger is the fact that he justifies the implied undertaking because it has the effect in criminal cases of enabling the Court to control the use to which the documents can be put.

That seems to me a fundamental matter of public policy.

Here are documents which may contain, and very often do if a situation like this arises, and do here, matters which are sensitive, and perhaps more important for our purposes, contain matters which are potentially defamatory —.

It does not seem to me to be in the interests of the public that in circumstances like this there should be opened-up the possibility of countless, and I use the word deliberately, defamation cases arising from a situation like the present.”

He struck out the action.

In summary, those decisions seem to recognise the necessity of an implied undertaking in criminal proceedings. In the British Coal case, it was unnecessary for the Court to decide whether an implied undertaking existed. In the exp Coventry Newspapers case, the existence of an implied undertaking was assumed and the only issue before the Court was its variation. The McGrath case did decide that an implied undertaking applied to the “used” material as defined in that case. Forbes J declined to draw a distinction between “used” and “unused” material. In Taylor the documents in question had not been read or referred to in open court. The rationale advanced in those authorities is that an implied undertaking is necessary in criminal proceedings to reassure and thus not deter informers, and the fear of a flood of defamation actions.

(d) what is the position in relation to discovery in criminal proceedings ?

In criminal proceedings, the law relating to the disclosure of documents has been a mixture of common law and statute. Historically the prosecution’s duty to disclose unused material to the defence was first formulated in R v Bryant & Dickson, 31 Cr App R 146, CCA and extended in Dallison v Caffrey [1965] 1 QB 348, CA. The Attorney-General’s Guidelines (Disclosure of Information to the Defence in cases to be tried on Indictment) 74 Cr App R 302 were then issued in December 1981. However those Guidelines have now been largely superseded by subsequent caselaw – see for example R v Ward 96 Cr App R 1, CA; R v Keane [1994] 1 WLR 746. [See Archbold 1997, para 12-46 -54]

In criminal proceedings there is no duty of disclosure on third parties, although the concept of what constitutes the prosecution has gradually been extended. [See Archbold 1997, para 12-45; 12-48; (failure to disclose did not result in prejudice.]

The Criminal Procedure and Investigations Act 1996 (“CPIA”) establish a general regime of disclosure by both prosecution and defence, replacing the common law rules as to disclosure in their entirety and being supplementary to the other statutory rules as to disclosure. [See Archbold 1997, para 12-45]. The 1996 Act, has received the Royal Assent and s17 came into force on 1st April 1997, after Brooke J’s decision.

Although Brooke J’s decision predates the 1996 Act, it is interesting to note the following provisions of s17 which deal with the confidentiality of disclosed information:

(1) Section 17(1) provides that if an accused is given or allowed to inspect a document under certain specified sections of the Act, then, subject to sections 17(2)-(4), he must not use or disclose it or any information recorded in it.

(2) Section 17(2) provides that the document may be used or disclosed by the accused in connection with the proceedings for whose purposes he was given the document or allowed to inspect it.

(3) Section 17(3) makes an exception from the prohibition against use or disclosure to the extent that a document has been displayed to the public in open court or to the extent that information has been communicated to the public in open court. It provides:

“The accused may use or disclose –

(a) the object to the extent that it has been displayed to the public in open court, or

(b) the information to the extent that it has been communicated to the public in open court;”

(4) Section 17(4)-(6) provides a mechanism by which the accused may apply to the court for permission to use or disclose the document or information. The prosecutor or a person claiming to have an interest in the document or information may apply to the Court to be heard on the application.

The commentary on section 17 in Halsbury’s Statutes Service Issue

71 Vol 12 page 441 is as follows:

“This section is intended to protect unused material disclosed to the defence under this Part by requiring it to be treated confidentially. Such material may contain sensitive or potentially embarrassing information about individuals which could be used to harass witnesses or for blackmail. The type of situation that this section is intended to prevent is where, for example, unused material given to the defendant is circulated in prisons or disclosed in the press; the effect of this section is that an accused will, subject to the permission of the Court, be able to use disclosed unused material only to prepare his defence or an appeal — 26 June 1996). Note that only unused material is protected by this section: the Government considered that it would be “inappropriate” to place a special duty of confidentiality on the accused in respect of material that has been disclosed to the defence and will therefore be used in open court.” [Emphasis added].

It is a contempt of court for a person knowingly to use or disclose a document or information recorded in it if the use or disclosure is in contravention of section 17 (see section 18(1)).

As I read the 1996 Act its significance to the facts of this case is that:

(a) s17 appears only to concern the disclosure of unused material – there appears to be no statutory restriction on the use of used material;

(b) s17(3) recognises, as RSC Ord 24 r14A does in civil proceedings, that the relevant undertaking does not apply where the documents or information have been displayed or communicated to the public in open court;

(c) s17(6) provides a mechanism whereby the prosecutor or a person claiming to have an interest in the document or information may apply to be heard by the court where the accused has made an application under s17(4). Given that the undertaking does not apply where the circumstances specified in s17(3) arise, there would appear to be no statutory mechanism whereby a prosecutor or a person claiming an interest can make an application to the Court seeking an order restricting the use of the document in question in the absence of an application having been made by the accused under s17(4). This contrasts with the position under RSC Ord 24 r14A.

I have come to the conclusion that in the absence of a P.I.I. ruling to the contrary there never has been a fetter on the subsequent use of documents which have been ‘used’ in the criminal process and the 1996 Act confirms this.

(e) is it appropriate to apply an implied undertaking in criminal proceedings by analogy with the implied undertaking which exists in civil proceedings ?

The Argument

The Appellants, in essence, submit that the analogy between criminal and civil proceedings is unconvincing; the position of the prosecution in a criminal case is not comparable with that of a plaintiff or a defendant in civil proceedings. In criminal cases, the prosecuting authority is under a strict and well-defined common law duty of disclosure. Such an authority is not a party to the “dispute”, is not (generally) the owner or author of the documents disclosed, but is an independent public body acting in the interests of justice. That common law duty is converted into a statutory duty by section 3 of the 1996 Act. The Appellants reject the notion that the imposition of an implied undertaking is necessary on strong public policy grounds since otherwise prosecuting authorities would be deterred from strictly complying with their legal obligations of frank disclosure to the criminal defence solicitors.

The reasons for implying the undertaking in civil proceedings are, submit the Appellants, not relevant in the criminal context. If those rationales have no application, or rarely apply, to criminal proceedings, then the Court should not, imply the undertaking in criminal proceedings.

It is the Respondents’ case that it is an equitable principle of general application that where a person receives documents from another, by means of compulsory disclosure in particular legal proceedings, he is under a legal obligation not to use them for any purpose other than the conduct of those proceedings in which they were disclosed, without the prior leave of the Court under whose authority the documents were disclosed.

The Respondents submit that the argument that the Riddick reason for the existence of the implied undertaking in civil proceedings applies with even greater force to criminal cases and to the protection of informants from suit, than it does in civil litigation, is in order to protect informers.

CONCLUSION

I can find no basis for an implied undertaking in criminal proceedings on the grounds of privacy and confidentiality.

It is foreseeable that any letter which is sent to a disciplinary body, if it is acted upon, will not preserve the anonymity of its source or the identify of the informant merely by an assertion of confidentiality. I note that in P v T Limited ‘The Times’ 7 May 1997, Sir Richard Scott VC ordered disclosure of precise details of allegations made against a plaintiff which formed the basis for his dismissal by his former employers and disclosure of the identity of the complainant who made the allegations. He further ordered that the plaintiff was at liberty to use the documents and information so provided in an action against the unidentified informant in order to clear his name.

In the present case no confidentiality arises. This was conceded before the trial judge and before this Court. On close perusal of the contemporaneous correspondence it is evident that the issues of confidentiality raised by the defendants, and their lawyers related to the bank’s obligations to their clients under Swiss law. No confidentiality could have been sought or given in respect of the letter or its enclosures. Accordingly it would have been impossible to restrict further use of it to the criminal proceedings on the basis of confidentiality. As Mr Gray put it : ‘The confidentiality of the letter (if it ever existed) evaporated in the course of the criminal trial.’

Although the CPIA was not in force when the matter was before Brooke J it provides some indication of the intention of the legislature on confidentiality of documents in the criminal law process. It establishes a general regime of disclosure by the Crown and the defence enhancing the Common Law position. The effect of section 17 is to draw a distinction between used and unused material and to protect unused material by requiring it to be treated confidentially. Thus if a document is displayed in open court, or the information within it has been communicated to the public in open court, no such restriction applies, and the document may be used or disclosed by the accused without restriction. Parliament evidently considered it ‘inappropriate’ to attach confidentiality in respect of material that has been disclosed to the defence and will, be, or has been, used in open court.

Consequently I can discern no overriding public policy argument for the restriction of material disclosed during criminal proceedings and used in open court. I can find no justification for this Court to proceed on the basis that prior to the Act any restriction in relation to used material other than P.I.I. I do not accept that S.17 should be construed so as to prevent the use of documents or information in the public domain to found an action for libel. In so concluding I am not deflected by decisions or dicta based on RSC 0.24 r.14A which suggests that libel actions should be treated differently (Tejendra Singh v Christie, supra and Taylor v SFO supra). I prefer the reasoning of Browne-Wilkinson VC that O.24 r 14A has the effect that, save in exceptional circumstances, once a document has been used and referred to in open court it is a public document and no special undertaking continues (Derby v Weldon, supra).

Accordingly, in my view exceptional or special circumstances in the criminal context can exist but should be confined to matters of public interest immunity, and absolute privilege.

I do not regard the position of the Crown in a criminal case as analogous to that of a party in civil proceedings. The former is bound by a strict common law (and now statutory) duty to disclose documents of which the body is rarely the author or owner. Such documents are often obtained by compulsion. The disclosure must be ‘in the interests of justice’ so that the accused knows the nature of the case against him, and so that he has access to documents which might assist his case.

I am unable to accept that public policy requires a duty on an accused not to use disclosed documents for any purpose other than the criminal proceedings on the ground that the Crown would be deterred from complying with their obligations of full disclosure in the interests of justice’. The common law duty ensured that this did not happen; it is now a statutory duty.

The Riddick principle is firmly established in the civil law and there is clearly good reason for ensuring that private parties in litigation are not discouraged from making full and proper discovery. In my judgment, the reasons of public policy, proper administration of civil justice and abuse of civil process have no relevance in the criminal sphere where the rules of disclosure are for different purposes and now have statutory force.

To my mind, the respondent’s most impressive argument is that without an implied undertaking informants would be exposed to the risk of proceedings based on such documents and so would be discouraged from coming forward. As Forbes J aptly put it : “The vast majority of those who supply information to the police expect and are entitled to expect that the information will only be used for the purpose of the investigation and resulting criminal proceedings. For all other purposes the information is, in effect, treated as private”. It is said that there is an over-riding public interest in protecting informants, witnesses and their sources.

I accept that there is a public interest in protecting informants. The police rely heavily upon information and intelligence provided by individuals close to criminals. Unless there is protection for informants many criminals would not be brought to justice. However I doubt that public policy recognises or requires a protection which is comprehensive as the respondents claim. There is no blanket protection for material disclosed in criminal proceedings. In a subsequent libel suit a distinction is drawn between publications in the preliminary stages and those in the course of, or sufficiently proximate to the judicial process. The former are subject to qualified privilege; the latter are covered by absolute privilege.

Those who have absolute privilege are immune from suit “although the words were written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed” (per Lopes LJ in Royal Aquarium v Parkinson (1892) 1 QB at 451 and Gatley paras 383-384). “This rule of law — is founded on public policy which requires that a — witness in giving evidence, oral or written in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel”. (per Pigot CB in Kennedy v Hilliard (1891) IR CLR at p.209 and Gatley para 384).

I recognise however that informants are more likely to participate in the preliminary stages, and are less likely to give evidence and thus are unlikely to benefit from absolute privilege. Those who volunteer information enjoy only qualified immunity from proceedings in libel. But if the informants are honest their protection is complete. If “malicious, without justification or excuse or from personal ill will” their protection is forfeit (Gatley paras 484-etc)

The informant is not bereft of all protection. In exceptional cases of particular sensitivity where there is a legitimate reason for protecting the anonymity of the source that object can still be achieved by making a claim for Public Interest Immunity (if necessary, by an ex parte application in camera). In the present case the Crown made an application but the trial judge rejected it.

Accordingly I am of the view that there is no compelling reason for the implied undertaking on the ground that its absence will deter informants from coming forward. The honest have nothing to fear. The anonymity of those in peril can be protected. It is in the interests of justice that the dishonest should be deterred from disseminating calumny and perverting the course of justice. Thus, in practice, there is only a small risk to informants and it is hardly a flood gates situation.

Moreover as a matter of public policy a person who is the victim of malicious false statements to regulatory bodies who wish ‘to put the record straight’ should not be met by blanket protection of the kind advocated by the respondents. Qualified privilege is sufficient protection leaving the victim plaintiff to prove malice.

I venture to suggest that this analysis and approach does have the merit of conforming with Article 6 of ECHR :

“In the determination of his civil rights and obligations — every one is entitled to a fair and public hearing with a reasonable time by an independent and impartial tribunal established by law”.

Accordingly I have come to the conclusion that it is not appropriate to imply an undertaking in criminal proceedings by analogy with the implied undertaking which exists in civil proceedings. It must follow that I must respectfully dissent from the conclusion of Brooke J on the first issue when he found that implied undertaking did exist.

Issue 2 Does it apply to all documents disclosed by the Crown without regard to the question whether the Crown obtained them voluntarily or by compulsion?

If my analysis and conclusions are correct then the issue does not arise. If I am wrong then Brooke J would be correct when he said :

“… it applies to all documents disclosed by the Crown without regard to the question whether the Crown obtained them voluntarily or by compulsion. In my judgment the courts would be doing a disservice to those engaged in the investigation of crime if they had to warn would be informants that less protection would be afforded to written information they supplied voluntarily, and in consequence, in fairness to their informants, they always had to have recourse to compulsory powers.”

I would have to concede that an implied undertaking should apply to all documents regardless of whether they were obtained voluntarily or by compulsion. A prosecuting authority who discloses documents pursuant to its common law (and now statutory obligations) is not in the same position as a party to civil proceedings who voluntarily discloses documents at an interlocutory stage as was done in Derby v Weldon. If one recognises the underlying rationale of reassuring and not deterring informants, there is no logical reason for distinguishing between the means by which the documents were obtained. If such a distinction were recognised it might well be detrimental to the administration of justice, as it would discourage informers from volunteering information.

Issue 3 Does it apply to documents disclosed by the Crown both as “used” and “unused” documents?

If I am correct the issue does not arise. If I am wrong then I would still dissent from the conclusion of Brooke J, that the undertaking applied to both ‘used’ and ‘unused’ documents. This was based on his concurrence with the reasoning of Forbes J in McGrath.

As I read the CIPA there is an implied distinction between used and unused material. If there is an undertaking it can only apply to unused material until the Court releases the embargo. The undertaking could and should not attach to used material – particularly when the information and the identify of the informant were in the public domain, except where P.I.I. considerations arise.

Issue 4 Does it continue to apply after the relevant document has been read or referred to in open court in the criminal proceedings ?

If I am correct the issue does not arise. If I am wrong, then I would be inclined to the view that the undertaking does continue to apply for so long as it remains unused and the Court has made no order. Conversely I am satisfied that the undertaking would not continue to apply after it has been used, subject to P.I.I. considerations. It follows that I must dissent from the conclusion of Brooke J :

“In my judgment, therefore, even after documents have been read in open court, the court to whom the undertaking was given is still entitled to exercise control in this regard, and an application would have to be made to the Court for the variation of the undertaking to permit their use in other proceedings.”

I prefer :

1. the reasoning and approach in civil proceedings (RSC O.24 r.14A and Derby v Weldon but excluding Tejendra Singh v Christie

2. the rationale of S.17 CIPA

3. an approach rooted in common sense that there should be no impediment on the use of information which is in the public domain – subject to the very rare invocation of P.I.I.

4. the basic concept encapsulated in Article 6 ECHR.

Issue 5 If the undertaking continues to apply, and a libel action is commenced in breach of the undertaking, does the Court have any discretion not to strike it out as an abuse of process.

If I am correct and no undertaking exists it would not be an abuse of process to commence a libel action. If I am wrong then I am inclined to the view that if the publication is based on used material there would be no abuse of process and no discretion to strike it out on this ground. If it is based on unused material it would be a contempt of Court and an abuse of process to commence an action. The court within its inherent jurisdiction and under O.18 r.19 would have power to strike it out on this ground.

However I would not regard this power as absolute and the Court (Crown Court or Civil) has a discretion to vary the undertaking, on an application made in due time, to permit an aggrieved plaintiff to remedy an injustice he has suffered at the hands of the unscrupulous.

If this Court were to exercise its discretion I would accede to the appellants’ argument that:

“they became aware, without any impropriety on their part, of a document which on their case is seriously libellous of them and highly damaging. For the purposes of a strike-out application the facts pleaded in the Statement of Claim must be assumed to be true. There is therefore a clear reason to suppose that a major wrong has been done to the appellants and they should be able to obtain redress for the wrong done to them.”

In my judgment at this stage of the civil process the balance of competing public interests comes down in favour of the plaintiffs.

I wish to add a postscript based on authority which was not cited before this Court. Earlier I drew a distinction between statements made during the actual proceedings (attracting absolute privilege) and statements made in the preliminary stages of investigation (attracting qualified privilege). On the basis of the decisions in Hasselblad Ltd v Orbison [1985] 1QB 475, at 504 B-E, (CA), Evans v London Medical College [1981] 1WLR 184, at 191 F-H (Drake J) and X v Bedfordshire County Council [1995] 2AC 633, at 755 E-F, Phipson Evidence 14th Edition 9-14, it would appear at least arguable that the Respondents in this case could raise the defence of absolute immunity. However, this has not been pleaded, nor was the point argued below or before this Court. Thus it would not be appropriate for this Court to maintain Brooke J’s decision to strike out on this ground.

I would therefore allow the appeal and re-instate the action.

LORD JUSTICE SCHIEMANN: I agree.

LORD JUSTICE STAUGHTON:

The rule in civil proceedings

Documents disclosed by one party to another in civil proceedings, as part of the process of discovery, may not be used for other purposes without leave of the court. One should notice three limitations on the rule. First, it does not apply to documents disclosed voluntarily by one party in interlocutory proceedings; see Derby & Co ltd v. Weldon Lexis, 20th October 1988, where Sir Nicholas Browne-Wilkinson VC said (at p.7)

The voluntary disclosure of documents in the course of interlocutory proceedings by a party does not come within the rationale which is the basis of the implied undertaking relating to documents disclosed on discovery.

Secondly, so far as the cases show the rule applies only to the parties to the proceedings in which the documents are disclosed, and to those (such as Miss Harman, the solicitor) who have access to the documents on their behalf: see the hypothetical example given by Lord Diplock in Harman v. Secretary of State for the Home Department (1983) AC 280 at p.305, and Lord Roskill at p.322 –

a party to whom discovery has been made is in relation to his opponent’s documents at a great advantage in comparison with the rest of the world.

A stranger who happens to be in court is not deemed to have given an implied undertaking. He is free to make such use as he pleases of the information which is publicly imported to the rest of the world, subject of course to the general law for example in relation to defamation.

Thirdly a civil litigant is, as it seems to me, forbidden only to use the documents disclosed on discovery by his opponent and the information in them; he remains free to sue in another action on the basis of information which he has obtained from another source. Authority for the first part of the proposition is said to be found in Sybron Corporation v. Barclays Bank plc (1985) Ch 299. The second part is supported, so far as I am aware, only by common sense. It cannot be the law that a litigant, having from the start information and evidence which would enable him to bring an action against another, becomes disqualified from using it if that information and that evidence are later disclosed to him on discovery in another action to which he is a party.

The implied undertaking in civil proceedings is thus a somewhat unusual creature. It is imposed not by statute or a rule of court but by the common law; it is carefully tailored as a remedy for the intrusion on a litigant’s privacy; and although described as an implied undertaking it is a rule which neither party can unilaterally disclaim. The origin and true nature of the rule are, if I may say so, well described by Hobhouse J. in Prudential Assurance Co Ltd v. Fountain Page Ltd (1991) 1 WLR 756 at p.764:

This undertaking is implied whether the court expressly requires it or not. The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and, can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz. contempt of court) and can be relieved or modified by an order of the court. It is thus a formulation of the obligation which has merit and convenience and enables it to be treated flexibly having regard to circumstances of any particular case. Treating the duty as one which is owed to the court and breach of which is contempt of court also involves the principle that such contempt of court can be restrained by injunction and that any person who knowingly aids a contempt or does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions: see Distillers Co (Biochemicals) Ltd v. Times Newspapers Ltd [1975] QB 613.

An implied obligation which the parties cannot contract out of is not a creature wholly unknown to the law; see for example the implied terms in section 8 of the Hire Purchase Act 1938. It is, as Hobhouse J. said, in reality an obligation imposed by law.

RSC Order 24 rule 14A

Although this rule does not, in my opinion, apply to criminal proceedings in the Crown Court, we ought to consider it when deciding whether the common law rule for civil proceedings should also apply in crime.

The rule provides:

Any undertaking whether express or implied not to use a document for any purposes other than those of proceedings in which it is disclosed, shall cease to apply to such document after it has been read to or by the court, or referred to, in open court unless the court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.

This rule came into force in 1987.

There can be little doubt that the rule resulted from the settlement that was reached of Miss Harman’s application to the European Commission of Human Rights against the United Kingdom, quoted by Hirst J in Bibby Bulk Carriers Ltd v. Cansulex Ltd (1989) QB 155 at p.159:

The Government are prepared to undertake to seek to change the law so that it will no longer be a contempt of court to make public material contained in documents compulsorily disclosed in civil proceedings, once those documents have been read out in open court. The substance of the change would be that where a document or part of a document so disclosed to a party in civil proceedings has been read out in open court, the implied undertaking given by the person to whom such disclosure had been made not to use the document for any purpose other than the proper conduct of his own case should not prevent his using that document for the purpose of his making the contents of the document, of the part of it, as the case may be, known to any person. This change would not apply in the case of a document, or part of a document, which was the subject of an order of the court preventing its disclosure otherwise than to the parties to the action.

There remains a question whether O.24 r.14A reproduces exactly what the United Kingdom undertook to do, or whether it goes a good deal further than that.

That question was decided by Drake J. and on appeal by Butler-Sloss LJ and Sir Michael Kerr in this court in Tejendrasingh v. Christie 25th October 1993, unreported. It was held that the effect of the rule was limited to allowing the party subject to the undertaking to make known the contents of the documents; it did not have the effect of freeing him to use it for any other purpose, including bringing a libel action upon it. I have to say with great respect to two distinguished colleagues, that the decision in Tejendrasingh’s case is not binding upon us (see the Supreme Court Practice para 59/1/61) and ought not to be followed. It was made in a series of applications for an extension of time and leave to appeal, all of which were refused. The applicant was a litigant in person, of whose litigation it was said

These cases do not deserve to be heard

and who was warned that he was in danger of being held to be a vexatious litigant. The court was not, so far as I can tell, referred to the decision of Sir Nicholas Browne-Wilkinson V-C in Derby & Co Ltd v. Weldon at pp. 8-9, where it was held (if indeed it was disputed) that O24 r.14A enabled documents to be disclosed in other proceedings if the condition laid down by the rule was fulfilled. In Style & Hollander on Documentary Evidence (5th edn) p.272 it is said that, when rule 14A applies,

the holder of the document is then completely freed from all restrictions and can use the document for any purpose whatsoever.

It is then suggested that the decision of Drake J. in Tejendrasingh was incorrect. To the same effect is Matthew & Malik on Discovery paras 12.22,12.23.

Criminal proceedings

Against that background, I turn to consider what the rule is in criminal proceedings in the Crown Court. At the start I would emphasize that we are dealing in this case with a document which was disclosed to Mr Mahon and Mr Kent because it formed part of the material which the prosecution wished to put before the court. It was exhibited to the witness statement of an official of the Serious Fraud Office. That it may or may not have done much to forward the prosecution case is immaterial. What is more, the document was read or referred to in open court, in evidence in chief and cross-examination. It certainly entered the public domain.

Anyone who wishes to prosecute someone in the Crown Court is obliged to disclose his witness statements and exhibits as part of the prosecution process. Despite enquiries, counsel were unable to tell us the source of that obligation; perhaps it is too well known to be readily available. In a sense, I suppose, the prosecutor is subject to compulsion, since his duty is to prosecute: and if he does not disclose his witness statements and exhibits he cannot discharge that duty. But clearly it is a considerable stretching of language to say that the prosecutor’s privacy is thereby invaded, which is commonly the justification for the rule in civil proceedings.

The leading case on the topic under this head is Ex parte Coventry Newspapers Ltd (1993) QB 278. There the Criminal Division of this court had ordered disclosure to an appellant and his advisers of documents assembled by the Police Complaints Authority; and the publishers of the Coventry Evening Telegraph applied to the Court for the appellant to be released from his implied undertaking not to disclose the documents to any one else. The publishers wished, with the appellant’s consent, to use the documents in defending a libel action which police officers had brought against them.

It was thus common ground that there was an implied undertaking by an appellant to whom documents were disclosed by an order of the Court of Appeal Criminal Division. Lord Taylor CJ said as much at p.285:

In form it is an application at the suit of C.N.L. as a third party for the court to release the appellant from his implied undertaking pursuant to which discovery of the P.C.A. documents was given under the court’s order of 9 July 1991 – released that is to the extent of permitting him to disclose the documents to C.N.L., they for their part undertaking to the court to hold them for the strictly limited purpose of defending the libel proceedings brought against them by Woodly and Clifford. But for such proposed order the appellant would clearly be unable to hand over the documents; he would be subject to an implied undertaking, analogous to that arising on discovery in civil proceedings, not to use the disclosed documents otherwise than for the purposes for which discovery was given, here the pursuance of the criminal appeal which is now, of course, successfully concluded. P.C.A. assert the undertaking and C.N.L. acknowledge it. What is in issue here is whether it should now be varied.

Lord Taylor referred (at p.291) to an argument based on an analogy with Order 24 rule 14A and said that “once … confidentiality is dissipated by the use of the documents in open court, prima facie the undertaking lapses.” He continued:

Mr Richard’s argument would, we accept, be formidable indeed had the implied undertaking with which we are concerned been one given in the usual way in civil proceedings. Certainly nothing that we decide in the present case is intended in the least degree to diminish the high importance rightly recognised to attach to the concept of the implied undertaking as a necessary way of underpinning the integrity of the discovery process. But characterisations of discovery such as that of Lord Keith of Kinkel in Home Office v. Harman [1983] 1 AC 280, 308B, as “a very serious invasion of the privacy and confidentiality of a litigant’s affairs,” although of the clearest application to discovery given in private civil litigation, appear to us altogether less obviously apt in relation to an order such as that made by this court in the appellant’s appeal. Orders for discovery rarely are made in criminal appeals and, when made, generally go, if not to the prosecution, then, as here, to a statutory body. Such bodies surely need little in the way of encouragement before making full and frank disclosure.

That supports the view which I have already expressed, that invasion of privacy is not exactly how one would characterize the obligation of a prosecutor to disclose his witness statements and exhibits. Whether it is apt to describe the prosecutor’s obligation to disclose unused material is or may be another question. It is not what we have to decide today.

In R v. McGrath, 3rd April 1996, unreported, the defendant on a criminal charge was served both with witness statements and exhibits which the prosecution intended to use as part of their case, and also with unused material. He applied for a declaration that he was entitled to make use of the first class of material in a civil action, and for leave to use the second class of material also. Forbes J. held that the used material was subject to an implied undertaking, in the same way as it was conceded that the unused material was. He supported this conclusion by reference to the judgment in the Coventry Newspapers case. For my part, I cannot agree that the Coventry decision necessarily applies to a case where there has been no specific order for disclosure of documents; and if it does apply to the disclosure of unused material without an order, I do not accept that it applies to documents disclosed as part of the prosecution case.

The case of Taylor v. Serious Fraud Office 26th July 1996, unreported, was concerned with unused material, which had not been read out or referred to in the criminal trial. Sir Michael Davies ordered a libel action based upon it to be struck out.

In Cunningham v. Essex County Council, which is only briefly reported in The Times of 31st March 1997, Judge Rivlin QC followed the decision of Brooke J. in the present case.

Despite this impressive concurrence of opinion among judges at first instance, I do not consider that the defendant in a criminal trial is under any implied undertaking as to the use of material disclosed to him as part of the prosecution case, whether or not it is read out or referred to in open court. It was not in my judgment an invasion of privacy which caused that material to be disclosed. That seems to me to be what Lord Taylor CJ was saying in the Coventry case, and I agree with it.

There is one further source which lends strong support for that conclusion. It is the Criminal Procedure and Investigations Act 1996. Section 17 provides:

17. (1) If the accused is given or allowed to inspect a document or other object under

(a) section 3,4,7,9,14 or 15, or(b) an order under section 8,

then, subject to subsections (2) to (4), he must not use or disclose it or any information recorded in it.

(2) The accused may use or disclose the object or information

(a) in connection with the proceedings for whose purposes he was given the object or allowed to inspect it,

(b) with a view to the taking of further criminal proceedings (for instance, by way of appeal) with regard to the matter giving rise to the proceedings mentioned in paragraph (a), or

(c) in connection with the proceedings first mentioned in paragraph (b)

(3) The accused may use or disclose –

(a) the object to the extent that it has been displayed to the public in open court, or

(b) the information to the extent that it has been communicated to the public in open court;

but the preceding provisions of this subsection do not apply if the object is displayed or the information is communicated in proceedings to deal with a contempt of court under section 18.

(4) if

(a) the accused applies to the court for an order granting permission to use or disclose the object or information, and

(b) the court makes such an order,

the accused may use or disclose the object or information for the purpose and to the extent specified by the court.

The important point to my mind is that none of the sections referred to in section 17(1)(a) deal with the disclosure of witness statements and exhibits which are part of the prosecution case. They are all concerned with disclosure of unused material. Why the omission? Does it mean that subsection (3), which licenses use of material that has been read in open court, applies to the compulsorily disclosed unused material but not to that which was part of the prosecution’s case? Such a result would be bizarre. The true answer must be that there is no need to make provision for the release of material in the prosecution case, as it is not subject to any implied undertaking against disclosure in the first place.

Section 17 came into force on 1st April 1997. But it has been available as a guide to what Parliament thought the existing law to be since it was enacted on 4th July 1996 – cf. R v. Home Secretary, ex parte Fire Brigades Union (1995) 2 AC 513.

If I understood him correctly, Mr Malony argued that the present appeal could be decided on the narrow ground of abuse of process. It was submitted that, even if there was no implied undertaking, no breach, no contempt of court, still it was an abuse of process to use the document in question in the present action. I say only that I can detect no support whatever for such doctrine.

I would allow this appeal. Dr Rahn and his colleagues must rely on the protection afforded to them, where appropriate, by absolute or qualified privilege in defamation proceedings. Otton LJ in his penultimate paragraph has referred to cases which elucidate the privilege that is available to witnesses. We heard no argument on that topic, but clearly it may well be relevant if this action proceeds further. I agree that we should not rule upon it at the present stage. It is not pleaded, the full facts may not be known, and we would have to recall the parties for further argument. It must be considered, if at all, on some other occasion.

ORDER: Appeal allowed with costs. Leave to appeal refused. 

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