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Barry Lane
14 April, 2010  
Fresh thoughts on "ulterior purpose"

Documents discovered in litigation finding their way into the public gaze … Whatever happened to Harman v Home Department? ... Victorian WorkCover Authority off the document hook … Subpoenas to rain like confetti … Meanwhile, NSW legislates to tighten restrictions on use of court docs … Barry Lane reports from Melbourne


imageFebruary 11, 1983 was a dark day for plaintiffs’ lawyers and their clients, specially if they had a “bad boy” from the big end of town in their sights.

It wasn’t so bright for members of the fourth estate either.

On that fateful February day, the House of Lords sent the common law world into a spin when it gave judgment in Harman v Secretary of State for the Home Department.

By majority (3-2), the House decided that the “implied undertaking” not to use documents provided by one’s opponent in civil litigation obtained pursuant to the coercive powers of a court for any “collateral or ulterior” purpose was not terminated when the material was disclosed in open court.

Disclosure to anyone at any time, without the consent of the party who provided the goods or an order of the court, constitutes a contempt.

The relevant facts appeared in the headnote to the case:

“A solicitor, who was (a) legal officer of the National Council for Civil Liberties, was acting as solicitor for the plaintiff in an action against the Home Office arising out of his treatment in prison in an experimental ‘control unit’.

During the course of the action the Home Office disclosed a large number of documents. The Home Office, in a letter dated October 17, 1979 stated that the Home Office did not wish the documents to be used for the general purposes of the NCCL outside the solicitor’s function as a solicitor for the plaintiff in the action.

The solicitor replied to that letter on the same day, saying that she was well aware of the rule that documents obtained on discovery should not be used for any purposes other than for the case in hand.

The Home Office was later ordered to disclose six confidential documents that they had objected to producing on the ground of public interest immunity. The solicitor selected from the documents disclosed those required for use at the trial of the plaintiff’s action, and in due course they were read out by counsel at the hearing.

A few days after the hearing, (and before judgment was given) the solicitor allowed a journalist whom she knew to be a feature writer (for The Guardian), and who had been present during part of the hearing, to have access to the documents that had been read out, including the confidential documents, for the purpose of writing a newspaper article.

The article was highly critical of Home Office ministers and civil servants.”

imageLords Scarman (pic) and Simon of Glaisdale dissented on the commonsense “cat-out-of-the-bag” basis. They said:

“A balance has to be struck between two interests of the law – on the one hand, the protection of a litigant’s private right to keep his documents to himself notwithstanding his duty to disclose them to the other side in the litigation, and, on the other hand, the protection of the right, which the law recognises, subject to certain exceptions, as the right of everyone, to speak freely, and to impart information and ideas, upon matters of public knowledge.

In our view, a just balance is struck if the obligation endures only so long as the documents themselves are private and confidential.

Once the litigant’s private right to keep his documents to himself has been overtaken by their becoming public knowledge, we can see no reason why the undertaking given when they were confidential should continue to apply to them.”

Although the duration of the “implied undertaking” or “implied obligation”, if you prefer the modern terminology, was not before the High Court when it decided in 2008 Hearne v Street, it’s reasonably clear that the court, with the exception of the Kirbster who urged a “fundamental re-expression [of the] governing common law”, had no difficulty with the general propositions expressed in Harman.

It would be interesting to see what the House of Lords and the High Court would do if confronted with the latest legal craze in the US.

This mania involves posting on public internet websites truckloads of confidential and sensitive material obtained from Big Tobacco and Big Pharma bad boys following discovery in litigation.

See for example sites maintained by the University of California in relation to tobacco litigation and drug company litigation.

imageFrom policy and efficiency viewpoints, it seems to me that Lords Scarman and Simon of Glaisdale (pic), along with our American cousins, are on the right track.

Once documents containing confidential or private information find their way into the public domain via litigation the information should be available for anyone to use, particularly other litigants.

In the tsunami of litigation that is about to flood American courts with individual and class action suits against Toyota, it seems to me that documents obtained by the Transportation Department, which the Transportation Secretary Ray LaHood says prove that Toyota has failed to live up to its legal obligations, should be made available for any plaintiff to use.

Against that background, it was surprising to see that the Accident Compensation Act Vic. 1985 had been recently amended to abolish the “Harman rule” in proceedings under the Act.

The explanatory memorandum accompanying the amending Act (the Accident Compensation Amending Act 2010) coyly records:

“The application of the (‘Harman rule’) in workers compensation matters would be problematic. It would mean that medical reports relating to a worker obtained in one proceeding (e.g. a serious injury application) could not be used in a later, yet related proceeding (e.g. a common law damages claim) resulting in gaps in the evidence of the worker’s medical history.

It may also result in additional costs and delays in seeking medical reports so as to ascertain the worker’s full medical history.”

For some reason, not immediately apparent, the parliament has seen fit to trash an edifice devised to protect the big end of town for the last 30 odd years.

There’s little doubt that abolition of the rule, which purports to be completely retrospective, was thought by Treasury bean counters to advantage the VWA, at the expense of worker-claimants, by permitting the authority to use any document “produced or served or information acquired” at any point in the chain of proceedings under the Act.

Section 48A of the Accident Compensation Act appears to be wide enough to cover recovery proceedings under s.138, for instance.

For the uninitiated, that’s where the VWA is empowered to go after other parties (for which read their insurers) to claw back payments it has made to injured workers.

Employers, insurers, claims investigators and lawyers will have treasure troves of documents that are now potentially available to be used by and against the VWA.

Subpoenas will rain like confetti.

Only time will tell whether the VWA is better off without the protection of the Harman rule.

imageThe hunter might just have become the hunted!

Now we discover serious differences emerging between the states on this issue: partial repeal in Victoria, arguably partial enactment in NSW, reversing a more liberal approach advocated by Chief Justice Spigelman (pic), which was along similar lines to that advocated by Chief Justice Martin in WA.

Joy, oh bliss. More confusion.