When a trial opens briefly, but ends because the proceedings are discontinued or settled, what is the status of documents disclosed or evidence served in the proceedings prior to that point? How freely can that material be used and distributed, and can anything be done to manage its dissemination?
At a hearing on 17 October 2018, following the conclusion of the brief trial in Robert Tchenguiz & Ors. v Grant Thornton UK LLP & Ors., Mr Justice Knowles made an interesting order aimed at striking a pragmatic balance on this issue.
The legal framework
The starting point is that documents disclosed and witness statements served in civil proceedings may only be used for the purposes of the particular proceedings in which they were disclosed or served (CPR 31.22(1) and 32.12). However, exceptions apply, including to: (i) disclosed documents which have been read to or by the court, or referred to, at a hearing which has been held in public (CPR 31.22(1)(a)); and (ii) witness statements that have been put in evidence at a hearing held in public (CPR 32.12(2)(c)). Absent further order, that material is assumed to have fallen into the public domain and can be used for other purposes by a party or third party.
CPR 31.22(1)(a) in particular has a broad scope and covers documents which are actually read out in open court, as well as documents to which counsel refers the judge in open court which the judge then reads to themselves. The rule also applies to documents which are not referred to in open court but which are pre-read by the judge: this may include, for example, documents referred to in skeleton arguments or provided to the judge as suggested pre-reading.
The Court of Appeal has held that, if no trial ultimately takes place, no matter how much material has been pre-read by the judge, CPR 31.22(1)(a) does not apply (SmithKline Beecham Biologicals SA v Connaught Laboratories Inc  4 All ER 498). But what is the status of documents pre-read by the judge and/or referred to in open court when a trial opens only briefly and is concluded before the hearing of oral evidence and without a judgment ever being handed down?
Robert Tchenguiz & Ors v Grant Thornton UK LLP & Ors
On 08 October 2018, more than 3 years after proceedings were initiated, the trial of Robert Tchenguiz & Ors v Grant Thornton UK LLP & Ors commenced in the Commercial Court. The trial had been listed to take place over 12 weeks, including a 1-week reading period, and the parties had served lengthy skeleton arguments in advance. The trial attracted significant media attention and copies of the parties’ skeleton arguments (redacted to protect third party confidential information) had been shared with the press.
In the event, the trial continued for only three days of oral opening submissions after which the claims were discontinued. Absent further order, therefore, the numerous documents and witness statements disclosed or served in the proceedings that had been referred to by the parties in their written and opening submissions, read by the judge and/or referred to during the short period of the abandoned trial, could have been deemed to have entered the public domain. However, CPR 31.22(2) permits the Court to make an order restricting the use of a document which has been disclosed, even when it has fallen within the scope of CPR 31.22(1)(a), and it is always open to a party to apply to reimpose restrictions on the use of documents or evidence that have otherwise become more widely available during the course of litigation.
At a subsequent hearing of consequential matters, the Defendants applied for an order that, notwithstanding the provisions of CPR 31.22(1) and 32.12, all documents, witness statements and expert reports read to or by the court, or referred to in open court during the brief period of the trial, should be permitted to be used only for the purposes of the proceedings in which they were disclosed or served. They argued, for instance, that the public interest in open justice was reduced when the material in question would not be explored in oral evidence or made the subject of a public judgment. Further, they said that the requested measures were necessary to bring a definitive end to the action in circumstances where the Claimants had a record of recycling similar types of claims.
The balance struck by Knowles J. was that: (i) the information recorded in the transcripts of the hearing and the redacted versions of the parties’ skeleton arguments had entered the public domain; but (ii) only the parts of the documents, witness statements or expert reports actually extracted or quoted within the redacted skeleton arguments or the transcripts had fallen into the public domain. Any other part of those documents, statements or reports was to be used only for the purposes of the proceedings in which they had been disclosed or served.
In each case, the Courts will weigh the various public and private interests at stake, including the public interest in the open administration of justice and the importance of unconnected third parties (including the press, where applicable) being able to understand and scrutinise public proceedings, and the interests of the litigants, witnesses and third parties connected with the litigation in having their privacy and confidential information protected. In this case, Knowles J. emphasised that his order was directed at ensuring clarity about the position going forward, with the interests of relevant third parties (and not just those of the litigants) in mind.
When granting the order, Knowles J. also noted that the Tchenguiz proceedings had involved many unique features, including extensive consideration of matters of confidentiality and the use of third-party material. It should therefore not necessarily be interpreted as the rule that applies whenever a trial is concluded prematurely.
Nevertheless, the decision demonstrates the sort of practical solution that Courts may be willing to consider in appropriate cases. It also carries weight having been made by a judge who is particularly well-versed in the rules governing the collateral use of disclosure and witness evidence (see, for example, A “use”ful clarification of the collateral use restrictions in CPR 31.22 and CPR 32.12 on Knowles J.’s February 2017 judgment, which remains the leading authority on the scope of the collateral use undertaking).
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