CL-2025-000062 - [2025] EWHC 1506 (Comm)

CPR r.31.22(1) provides:

“A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a)

the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b)

the court gives permission; or

(c)

the party who disclosed the document and the person to whom the document belongs agree.”

CPR 32.12 provides for the same restriction on the use of a witness statement for purposes other than for the proceedings in which it was served, subject to similar exceptions (consent of the witness, permission by the court, and a hearing in public).

A central policy rationale for the rule in CPR 31.22 is that “compulsory” disclosure is an invasion of a person’s private right and this should be matched by corresponding limitation on use of the documents disclosed: IG Index v Loete[2014] EWCA Civ 1128 [42]; Tchenguiz v SFO[2014] EWCA Civ 1409 [56].

The rules on collateral use bind the party to whom the documents are disclosed. They also extend (by way of the common law implied undertaking) to solicitors (Harman v Secretary of State for the Home Department [1983] 1 AC 280 (HL) at 284), and to any third party who is aware that the documents have been disclosed in the course of proceedings (Vneshprombank v Bedzhamov[2020] EWHC 2114 (Ch) at [46]]).

The rules protect not only the documents and statements themselves but also information derived from and contained within them. This includes information embodied in a copy and stored in the mind of someone who has seen the documents: Lakatamia Shipping Co Ltd v Su[2020] EWHC 3201 (Comm), [2021] 1 WLR 1097 (Ch) at [49].

In assessing whether CPRs 31.22 and 32.12 prohibit a particular “use”, the question is whether “what is being done is [being done] for the purposes of the proceedings, or some other purpose”: Caldero Trading Ltd v Beppler & Jacobson Ltd[2012] EWHC 1069 (Ch) [65].

It is not a collateral or ulterior use to use disclosed documents for the purposes of adding new causes of action or parties to the same cause of action in which the documents have been disclosed. Joinder of additional parties as a result of disclosure is “a common procedural occurrence”: Matthews and Malek, Disclosure (6th edn, 2023) paragraph 19-28.

In Grosvenor Chemicals Ltd v UPL Europe Ltd[2017] EWHC 1893 (Ch), the Court held that it was permissible to use disclosed documents to assert a related cause of action in the same proceedings against a third party. Birss J held the fact that any new causes of action:

“may also involve a person not currently a party but who could properly be joined as a co-defendant does not make the circumstances fall outside [CPR 31.22]. ‘The proceedings’ referred to in the rule does not have a narrow meaning confined to a narrow view of the causes of action pleaded in the existing statements of case…”

Where use outside the parameters of CPR 31.22 is sought permission can be sought – in advance or retrospectively. The grant of permission depends upon the specific circumstances, which must be carefully examined. In general, even ahead of time, there must be “special circumstances which constitute a cogent reason for permitting collateral use”: Tchenguiz (CA) [66].

The grant of retrospective permission is rare: Lakatamia Shipping Co Ltd v Su[2020] EWHC 3201 (Comm) [2021] 1 WLR 1097. Relevant considerations include whether: (1) prejudice has been caused to any other litigant; (2) the breach was inadvertent; (3) if a proper application had been made timeously it would have been granted; (4) the proportionality of debarring the applicant from use of the documents; (5) the documents reveal criminal offences or fraud (if so, disclosure to a victim of the offence should be permissible); and (6) the degree of use: Lakatamia ; Tchenguiz v SFO[2014] EWHC 1315 (Comm) [19]; Shlaimoun v Mining Technologies International Inc[2011] EWHC 3278 (QB) at [46].