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16 February 2021
In Wong v The Commissioner of Police & Anor,(1) the High Court released a party from an implied undertaking not to use documents for a collateral purpose. In this case, the documents in question had been provided by the second respondent (the respondent) to the police in support of its criminal complaint against the applicant. Copies of the documents were passed by the police to the applicant during their investigation. While the implied undertaking generally arises in the context of documents that a party is compelled to disclose to another as a result of discovery in a civil action, it can have a wider application to (for example) documents obtained by a party during a criminal investigation. The applicant wished to use the documents in support of her defence to civil proceedings commenced by the respondent. On an exceptional basis and good cause having been shown, the court allowed the applicant's application to be released from the implied undertaking. The case serves as a useful reminder of some general principles in an area of practice that can cause problems for the unwary.
Between 2015 and 2016, the respondent appears to have commenced civil proceedings against the applicant claiming that the applicant had breached certain duties as (among other things) a director and employee of the respondent. The respondent also made a complaint to the police and provided them with documents alleged to support the complaint. During the police investigation, the police passed copies of the documents to the applicant.
The applicant appears to have been concerned that not all of the relevant documents provided to her by the police had been disclosed by the respondent in the civil proceedings. This, in turn, appears to have presented the applicant with something of a dilemma. The applicant could have done nothing, or she could have sought to verify the position – however, from her point of view, doing something involved her being allowed to refer in the civil proceedings to the documents obtained during the criminal investigation, which was arguably a collateral purpose and would breach any implied undertaking.
After some considerable back and forth between the parties' lawyers, the applicant applied to the court to be released from the implied undertaking.
Several issues arose and, as the court hearing got closer, the disagreement between the parties appears to have narrowed with their lawyers trying to agree the position but, ultimately, to no avail.
First, did the implied undertaking apply such as to curtail the applicant's use of the documents in the civil proceedings?
Second, in the event that the implied undertaking applied, had the applicant shown persuasive reasons amounting to special circumstances that justified being released from it? Such permission would not normally be granted, save on an exceptional basis, albeit the courts eschewed too rigid an application of legal principles and considered each case on its facts.
Third, subject to issues of relevance concerning some of the documents, was it necessary to release the applicant from the implied undertaking and would this cause any prejudice to the respondent or a third party? The police did not appear to object to the applicant's collateral use of the documents and, although named as a co-respondent to the application, they adopted a neutral position.
In an interesting judgment, the court allowed the application and released the applicant from the implied undertaking.
First, the court accepted that the applicant was bound by the implied undertaking in the circumstances. While the implied undertaking generally arises in the context of discovery of documents in civil proceedings, it also extends to documents obtained pursuant to criminal investigations and actions, independent of any restriction placed on the use of the documents by the police.(2)
What constituted a collateral purpose depended on the facts, but the applicant ran the risk of breaching the implied undertaking (and being in contempt of court) if she used the disputed documents in any way other than for her defence in the criminal investigation, without first obtaining the permission of the court. Such was the potentially wide-ranging nature of the implied undertaking, the risk faced by the applicant applied where (for example) she listed the documents in a list of documents in the civil proceedings or referred to them in an application against the respondent for further discovery, without first obtaining the permission of the court.(3)
The court noted:
In my view, the obvious course open to her is to apply for a release from that implied undertaking so that she can disclose the Documents/Additional Documents in her lists of documents in the 2 civil actions and then eventually make use of them in the trial of the 2 civil actions.(4)
Therefore, as regards the second issue, the court considered that the applicant had been justified in invoking the jurisdiction of the court.
On the facts, the court appears to have had little difficulty in deciding that the documents were relevant to the applicant's defence in the civil proceedings. There also appears to have been little or no risk of prejudice to the respondent or the police investigation.(5)
The court concluded that the applicant should be released from the implied undertaking and that she was entitled to use the documents in her defence at the trial in the civil proceedings. To the extent that any of the documents were covered by the respondent's claim to legal professional privilege, the applicant should be permitted to refer to them in an application for further discovery – at that point, the respondent could assert its claim to privilege and the court could determine that issue at a later date.
While it is commonly stated that the court may release a party from the implied undertaking in 'exceptional circumstances', this needs to be understood in context. As the case demonstrates, the court will allow a party's release where cogent reasons are shown and there is no overriding prejudice to another party or a third party. In this regard, 'exceptional circumstances' are usually not so exceptional.
The underlying rationale for the implied undertaking is that where parties are required to disclose documents, as part of a court process (as opposed to volunteering access to documents), they do so for a specific purpose and the implied undertaking serves as encouragement to give full disclosure – for example, it is a form of protection, until such time as the documents become public by being read out or referred to in open court.
In this case, the applicant's legal representatives appear to have erred on the side of caution by seeking a release from the implied undertaking and, it would appear, they were right to do so. The original documents had been provided by the respondent to the police, who in turn had provided copies to the applicant as part of their investigation. Given the applicant's queries regarding the extent of the discovery given by the respondent in the civil proceedings, it is difficult to see how the applicant could have advanced her position in those proceedings without referring to the documents and seeking the court's permission to be released from the implied undertaking. The court appears to have had little difficulty in deciding that the implied undertaking applied to the copies of the documents provided to the applicant by the police once a criminal investigation had commenced.(6)
The case serves as a salutary reminder about the pervasive nature of the implied undertaking and that documents disclosed in court proceedings should not be used for a collateral purpose, unless prior permission of the court or the person(s) disclosing the documents has been obtained or a party is sure that the implied undertaking does not apply. If in doubt, the better course of action is to seek permission from the court.
For further information on this topic please contact Adalia Chan, Jacky Darsono or David Smyth at RPC by telephone (+852 2216 7000) or email (email@example.com, firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
(5) The applicant did not have things all her own way. For example, while the applicant was the successful party, she was (subject to any further order) awarded only half of her costs given that (among other things) the exact purpose and extent of her application had not been entirely clear at the outset and the respondent (through its lawyers) had made some effort to give voluntary disclosure of most of the documents in dispute (supra note 1, at para 69). The commissioner of police was also entitled to look to the applicant for its costs, having adopted a neutral stance and assisted the court (with the ultimate liability for those costs, as between the applicant and the respondent, depending on the outcome in the civil proceedings).
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