Disclosure of Material Obtained on Discovery
| Published date | 01 May 1984 |
| Date | 01 May 1984 |
| Author | Ian Eagles |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01653.x |
DISCLOSURE
OF
MATERIAL OBTAINED ON
DISCOVERY
UNTIL
recently the undertaking deemed to be given by those obtain-
ing discovery that they would not use its fruits improperly or
collaterally might easily have been dismissed as one of those service-
able but unremarkable pieces of procedural
minutiae
which in their
thousands go to make up the closely packed pages of the
White
Book.
Occasionally it would be disinterred by copyright and patent
lawyers for use in their arcane rituals only to be consigned once
again to obscurity once they had done with it. It is now clear that
this apparently innocuous requirement has always contained within
itself a latent but formidable conflict of principle, a conflict having
its origins in the forced statutory marriage of law and equity in which
two very different systems of civil procedure were rudely thrust
together with no thought given to the conceptual incompatibilities
inherent in such a match.
There is in most legal systems an inevitable tension between the
deke of litigants to keep forensic disruption of their privacy to a
minimum and the insistence of a wider society that the judicial
process be
as
open as possible. True to its Manichean heritage,
modern English adjectival law does not seek to balance those
conflicting interests but simply allows each full play at different
points in the litigation. A clear line is drawn between the day in
court during which litigants and witnesses must endure whatever
publicity the case attracts and the interlocutory manoeuvring which
precedes it when the parties are
left
to prise information from each
other’s grasp under a cloak of secrecy held in place by the implied’
undertaking not to disclose discovered material. In civil law systems,
by contrast, the distinction between preliminary fact gathering and
actual adjudication is not nearly
so
marked and there is a corre-
sponding reluctance to treat either openness or privacy as an absolute
at any stage of the proceedings. The conceptual tidiness of English
law in this regard is largely illusory. In an ideal world, interlocutory
machinery would exist only as an aid to adjudication, not as an end
in itself, and once discovered material was used at the trial, logic
would seem to dictate that the tradition of interlocutory privacy
should give way before the principle of open justice. English judges,
however, have never believed in letting logic loose too far and for
over a century after the passing of the Judicature Act they were able
to keep both conceptual balls in the air at once, a juggling feat which
owed more to good luck and the good sense of litigants than judicial
intellectual dexterity. When in
Home Ofice
v.
Harman’
a choice
finally had to be made, the courts’ deeply ingrained (albeit unsoundly
I
Although “Implied” is the term used in the cases, the obligation not
to
disclose arises
by
o
ration
of
law and is in no sense consensual.
E82]
1
All
E.R.
532.
284
May
19841
DISCLOSURE
OF
MATERIAL
OBTAINED
285
based) historicism ensured that it would be the wrong one and it was
open justice which was fumbled. On this occasion the hapless victim
of
English law’s penchant for arbitrary categorisation was a solicitor,
Miss Harriet Harman, who was found guilty
of
what was termed a
serious contempt
of
court as a result. Her sin lay in allowing a
Guardian
reporter access to some
800’”
documents discovered by
the Home Office in an action brought against it by her client, a
former inmate of Wakefield prison. This, it was held, was a breach
of
the implied undertaking,
a
breach which the court felt was in no
way excused or diminished by the documents having been read out
in
exremo3
by counsel for Miss Harman’s client during his opening
address. How did such literal-mindedness come to command the
assent
of
both the Court
of
Appeal and the House
of
Lords? (Only
two members
of
the latter dissented4 and one of the former.)
Largely, it seems, by myopically fixing their gaze on the law
of
discovery and ignoring the wider perspectives
of
principle. The result
is a rule stripped
of
any convincing rationale, at odds with some
of
the fundamental underpinnings
of.
English law and distinctly fuzzy at
its edges. Now that Miss Harman has taken her case to Strasbourg,
we may expect to see these inadequacies laid bare with true Cartesian
ruthlessness.
1.
UNDERTAKINGS
NOT
TO
DISCLOSE-A REVISED
HISTORY
The majority in
Home
Ofice
v.
Harman
sought to justify their flight
from principle largely by reference to discovery’s idiosyncratic equit-
able origins, presenting the implied undertaking as part of the rich
procedural tapestry bequeathed to, them
by
the Courts
of
Chancery,
a rule which they could not unpick from the ancient fabric without
the whole thing unravelling in their hands. Regrettably, however,
the history they offer us is too flimsy to stand the strain they put
upon it.
The implied undertaking not to disclose material obtained on
discovery is not a rule
of
any very great antiquity. Not until
1948
does it surface in the law reports5 Before that, it is only the courts’
express power to limit what may be done with discovered papers
which is visible in the cases. The pedigree provided for the im lied
such express limitations “may not always be necessary,” rather a
thin provenance for a
rule
destined to wrap the whole discovery
Drocess in secrecy.
undertaking by the Law Lords rests on an oblique hint in Bray
B
that
In fact some 6,000 documents were discovered. Miss Harman selected the most
significant of those and had them bound up in two bundles for use at the trial. It was these
two bundles which she allowed David Leigh, the
Guardian
reporter, to sift through in her
office some days after the trial.
In the
Court
of
Appeal there was some dispute as
to
just how much
of
this material
was in fact read out. It was accepted for the purposes of the appeal
to
the House
of
Lords
that the documents had been read in full.
‘
Lords Scarman and Simon.
Altersyke
v.
Scott
[1948]
1
All
E.R.
469.
On Discovery
(London, 1885), p.238. Hare, whose
Treatise
on
the
Discovery
of
Evidence
was published in 1836, makes no mention
of
any implied undertaking.
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