Implied undertaking to the court – watch out!
By Michael Dolan.
Confidential documents or other material obtained by a litigant under compulsion by the court process are protected by an implied undertaking to the court of confidentiality and restricted use until such time as they have been admitted into evidence. A breach of the undertaking is treated by the court as very serious and may result in a finding of contempt of court against the person who has committed the breach.
Confidential documents or other material obtained by a party in the course of litigation cannot be used for any other “collateral or ulterior purpose.”
It is a positive legal obligation placed on the person obtaining the material and has long been categorised as an implied undertaking to the court.
The obligation endures until the material is read in open court or admitted into evidence or the court orders its release. The obligation is often referred to as the Harman Undertaking after a 1983 decision by the English House of Lords.
A significant aspect of this obligation to the court is that it binds litigants and third parties as well as legal practitioners. A breach is treated by the court as extremely serious and may result in a finding of contempt of court against the person who has committed it resulting in a fine or even imprisonment.
A majority judgment of the High Court of Australia has described the obligation in these terms:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits… It is common to speak of the relevant obligation as flowing from an ‘implied undertaking.’” (references omitted) (1)
An example of a breach of the implied undertaking would be where a corporate litigant obtained court ordered discovery of certain confidential and highly sensitive financial documents of a third party in a commercial dispute and shared them with other customers of the third party without its consent or leave of the court. Solicitors should be meticulous in advising clients in litigation of their corporate and personal obligations to the court with regard to confidential material obtained through discovery.
The obligation is not confined to commercial disputes. It also applies to all jurisdictions in which compulsory discovery is used such as family law litigation in which the parties are required by law to make full disclosure of their financial circumstances to each other.
One legal commentator has warned solicitors:
“The implied undertaking/Harman Rule is a potential minefield for all parties to litigation if they depart from a careful approach to keeping evidence and documents received from another party in that litigation strictly confidential until such time as the material becomes part of the ‘public record’ at final hearing.
In total’s digital environment this also extends to ensuring the security of IT systems storing such documents is as strong as possible (a manner) to prevent unauthorised access to the material.”
If a party wishes to use documents obtained in one set of proceedings in another, careful consideration should be given to how that can be achieved so as not to run the risk of a contempt of court occurring.” (2)
As well, the Queensland Law Society has published on its website an excellent and instructive article on the topic. (3)
- Hearne v Street (2008) HCA 36
- Kylie Lundy, Confidentiality, Contempt and the Court: Implied Undertakings and the Harman Rule, http://www.eralegal.com.au/2016/04/01/using-documents-obtained-in-litigation-for-another-purpose/
- David Bowles, “Implied Undertakings” – use of documents obtained by discovery or court process, (2014) http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Undertakings/%E2%80%9CImplied_undertakings%E2%80%9D_-_use_of_documents_obtained_by_discovery_or_court_process