Disclosed Documents: Can they be used outside the litigation itself?

Disclosure and inspection of documents and information is an important part of the litigation process, but once you have the information – can you use it for a purpose outside of the proceedings themselves? The award-winning commercial litigation lawyers at ParrisWhittaker in Jamaica and across the Caribbean, are highly experienced in advising on matters relating to disputes and disclosure.

Recent cases clarify the general principle that a party is barred from using information or documents recovered within those proceedings for other purposes – or risk sanctions.

What is ‘disclosure’?

Disclosure is a key obligation throughout the course of litigation and requires the parties to disclose documents or information in (or have been) within their control (subject to privilege). This includes electronically-held information. Disclosure doesn’t always operate in the other party’s favour – the disclosure obligation extends to disclosing information and documents that undermine their own case, unless it is covered by privilege.

Collateral or subsequent use of information

Once in possession of copies of the other side’s information/documents – there are important legal restrictions as to the purposes for which they may use that information beyond the proceedings. A litigant may, for instance, want to use the information disclosed in other proceedings – in the domestic or foreign courts.

But there is a general rule against such collateral use of information/ documents disclosed in the course of litigation (rule 28.17 of the Supreme Court Civil Procedure Rules 2022). This states clearly that disclosed documents must only be used for the purpose of the proceedings for which it was disclosed.

‘Use’ has a relatively wide meaning and can include reading or copying a document, showing it to a judge, using the information in it – and even referencing the documents. This means care must be taken with how the documents and the information contained in them are handled. Unauthorised use of the information is treated seriously by the courts and may well amount to contempt.

But as with any rule there are exceptions to the general prohibition, for example:

• Other party’s permission – Both the party disclosing the document and the person to whom the document belongs can give permission. If such permission isn’t forthcoming, the document/information cannot be used for a collateral purpose.

• In the public domain – It can be used if the document has been read to or by the Court, or referred to, in open court and thus in the public domain and no longer confidential.

• Permission of the court – You can ask the court for an order giving permission. The court will need to be satisfied that the individual documents in question are likely to be relevant to the purpose for which they’re required (eg foreign proceedings); and that there are compelling ‘special circumstances’ for judicial permission to be granted in the public interest. There must also be no injustice to the disclosing party in granting permission Libyan Investment Authority v Societe Generale SA [2020] EWHC 3659).

Note that retrospective permission will rarely be granted, for instance, if a party inadvertently uses the information for a purpose outside of litigation in breach of the rules. For the court to do so, it would require “something unusual” about the particular facts of a case (The ECU Group v HSBC Bank [2018] EWHC 3045). Even if retrospective permission is granted, the party in breach could still be sanctioned by the court.

Key takeaway

The rule against collateral use of documents obtained as a result of disclosure is unequivocal. Unless there is express permission or the information is in the public domain, its use outside of the litigation is prohibited.

Breach of the rules can prejudice the other party and is likely to be treated very seriously by the courts. Care must be taken when handling and dealing with disclosed documents and information in the course of litigation.

How can we help?

For robust advice on your disclosure obligations, get in touch with experienced commercial litigation lawyers at ParrisWhittaker on +1.242.352.6112 or info@parriswhittaker.com