An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter conduct. That action was settled on terms that included the withdrawal of the allegations of wrongful arrest and false imprisonment. The plaintiff then brought a second action for damages for defamation ‘flowing from the wrongful manner’ of his dismissal. That action was struck out on the basis that it was in respect of the same matters that had been the subject of the first action. He then brought a third action, again for defamation, acting in person. This was based on an internal report to the defendant’s chief personnel manager, made after his dismissal, which alleged that he had not been up to his job. This had come to the plaintiff’s knowledge as a result of being disclosed in the earlier litigation. The employer objected to that use of the document.
Held: The plaintiff should not have been permitted to make use of the memorandum disclosed in the earlier litigation to found his claim for defamation. It was an abuse of the court process. There was an implied understanding, or undertaking, that documents disclosed in court should not be used for any ulterior or collateral purpose.
Lord Denning MR said: ‘The principle was stated in a work of the highest authority 93 years ago by Bray J., Bray on Discovery, 1st ed. (1885), p.238: ‘A party who has obtained access to his adversary’s documents under an order for production has no right to make their contents public or communicated them to any stranger to the suit: . . nor to use them or copies of them for any collateral object . . If necessary an undertaking to that effect will be made a condition of granting an order: . . ‘
Since that time such an undertaking has always been implied, as Jenkins J. said in Alterskye v. Scott [1948] 1 All E.R. 469, 471. A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose.’
Stephenson LJ said: ‘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.’
Waller LJ said: ‘In my opinion it is highly desirable that there should be no discouragement to full and frank disclosure on discovery. If there be a risk that disclosures may produce new causes of action parties may be deterred from disclosing the document.’
Lord Denning MR, Stephenson LJ
[1977] 3 All ER 677, [1977] 3 WLR 63, [1977] QB 881
England and Wales
Cited by:
Approved – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – McBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.223346