UK: Using Documents For A Collateral Purpose: Permitted Or Prohibited?

Last Updated: 8 February 2018
Article by Thomas Leyland, Felicity Ewing and Tanya Alfillé

Over the past year, there has been a spate of cases concerned with the prohibition on the collateral use of documents in litigation. These decisions, a number of which have arisen out of the long-running Tchenguiz litigation, have helpfully clarified both what might constitute collateral use of a disclosed document and the circumstances in which a court will permit such use.

Why is collateral use of disclosed documents generally prohibited?

Under the Civil Procedure Rules (the Rules) a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it was disclosed (CPR 31.22 (1)). The Rules effectively codify the common law position.

This prohibition is subject to exceptions where:

  • the document has been read to or by the court, or referred to, at a hearing held in public (CPR 31.22 (1)(a));
  • the court gives permission (CPR 31.22 (1)(b)); or
  • the party who disclosed the document and the person to whom it belongs agree (CPR 31.22 (1)(c)).

The protections imposed by CPR 31.22 recognise that the obligation to give disclosure is an invasion of a litigant's right to privacy and confidentiality. Such an intrusion is justified only because there is a public interest in ensuring that all relevant evidence is provided to the court in litigation. Therefore the use of those documents should be confined to that litigation. The prohibition also promotes compliance with the disclosure obligation1.

What constitutes collateral use?

This question was considered in one of the many decisions in the Tchenguiz litigation, which arose out of criminal investigations by the Serious Fraud Office (SFO) following the collapse of the Icelandic bank, Kaupthing, in 2008 (Tchenguiz & anr v Grant Thornton & others [2017] EWHC 310 (Comm)). After the SFO's investigation into the activities of the Tchenguiz brothers was discontinued, and no charges brought, they, in turn, brought proceedings against the SFO for malicious prosecution and misfeasance in public office. Those proceedings were settled and the Tchenguiz subsequently brought proceedings against Grant Thornton, Kaupthing's administrators, alleging a conspiracy that had provoked and prolonged the SFO investigation.

Reviewing a disclosed document to assess its relevance for disclosure in separate proceedings

In Tchenguiz v. Grant Thornton one or more of the defendants were in possession of documents disclosed in earlier Kaupthing-related litigation, which were potentially relevant in the proceedings brought against them by the Tchenguiz brothers. The court was therefore asked to consider whether it was a collateral use (1) for the defendants to review those documents to assess their relevance (and subsequent disclosure) in the instant proceedings and (2) for all parties to review such disclosure with a view to assessing whether they wished to rely on or use any document in the current proceedings.

The court held that these steps would constitute collateral use (but went on to grant permission for such collateral use). Knowles J suggested that the Rules allowed a wide meaning for the word "use", which accords with the meaning given it in IG Index v. Cloete2, where "use" extended to reading a document, copying it, showing it to someone and using the information contained in it.

Knowles J accepted that the Rules themselves envisaged some limited use of a document for the purpose of assessing whether it has been read to or by the court, or referred to, at a hearing held in public under CPR 31.22(1)(a); seeking permission under CPR 31.22(1)(b); and seeking agreement from the relevant parties under CPR 31.22(1)(c). However, such implied permission was limited and did not extend to reviewing documents to decide whether to rely on or otherwise make use of them in other proceedings.

In reaching his decision, the judge drew a distinction between the purposes for reviewing the documents:

  • where the purpose was to advise on whether other proceedings would be possible, this would constitute a use for a collateral purpose; and
  • where the purpose was to advise on the instant litigation, but in doing so it came to light that other proceedings would be possible, this would not be use for a collateral purpose.

Raising new causes of action on the basis of disclosed documents

In Grosvenor Chemicals Ltd & others v. UPL Europe Ltd & others [2017] EWHC 1893 (Ch), Grosvenor applied for permission to bring committal proceedings against UPL and its solicitors for interference with the administration of justice by using documents for a collateral purpose, contrary to CPR 31.22.

The documents in question had originally been disclosed in proceedings UPL had brought for trademark infringement and passing off against a number of parties, including Grosvenor. Some time after disclosure, UPL realised the significance of some of the disclosed documents and, on the basis of those documents, its solicitors wrote:

  • to the defendants' solicitors alleging a further cause of action for breach of confidence; and
  • to a third party alleging breach of confidence and threatening to issue proceedings against him.

Birss J considered whether any of the steps UPL and its solicitors had taken amounted to a collateral use and concluded as follows:

  • the review of the disclosed documents was not for a collateral purpose as there was no reason to suggest that it was undertaken for anything other than orthodox reasons in the course of the existing litigation and, as such, fell within Knowles J's second limb in Tchenguiz v. Grant Thornton.
  • the letter notifying Grosvenor of a further claim did not amount to use of the documents for a purpose other than the purpose of the proceedings in which they were disclosed. That is because a party is entitled to use documents disclosed in proceedings to raise new causes of action which relate to the same proceedings without breaching CPR 31.223. Had the letter raised matters that were "entirely separate and distinct" from the existing proceedings so that the issues could not have properly been brought in the same proceedings, that would have constituted a "truly collateral case", for which UPL would need to seek permission.
  • the position is the same where the new cause of action involves a third party who could properly be joined as a co-defendant.
  • the letter to the third party threatening fresh proceedings on the basis of the documents did constitute use of documents for a purpose other than the proceedings in which they had been disclosed, and was therefore a breach of CPR 31.22.

The judge held, however, that it was not in the public interest to allow contempt proceedings in relation to breach of that rule.

When will the court permit collateral use?

Under the exceptions to the general rule, a party may be permitted to use disclosed documents for a purpose other than the purpose of the proceedings in which they were disclosed if they obtain the court's permission (CPR 31.22(1)(b)). The court will only grant permission if there are "special circumstances" that constitute a cogent reason for permitting collateral use, and this would not cause injustice to the person giving disclosure4. The circumstances in which a court might give permission have also been considered in the recent case law.

No permission where the integrity of criminal investigations might be compromised

An earlier decision in the Tchenguiz litigation considered whether that test had been met in the context of documents disclosed to the Tchenguiz parties in their proceedings against the SFO: Rawlinson & Hunter Trustees SA v. SFO [2015] EWHC 266. The trustees of the Tchenguiz Discretionary Trust applied for permission to use documents (and extracts of witness statements) in proceedings in Guernsey (the Guernsey proceedings) that had been disclosed in the unrelated English proceedings against the SFO (the English proceedings).

The trustees also sought a declaration that the exception in CPR 31.22(1)(a) (where a document has been read to or by the court, or referred to, at a hearing held in public) applied to some of the documents already in the public domain. The SFO counter-applied for an order under CPR 31.22(2), which provides that the court may restrict or prohibit the use of a document that has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been heard in public. If granted, this would have had the effect of re-imposing protection over those documents.

The court refused the trustees' applications and allowed the SFO's application:

  • The trustees had failed to show special circumstances amounting to a cogent reason for permitting the collateral use of the documents. In its reasoning, the court cited a number of factors, including the fact that the documents formed part of the SFO's criminal investigations, the other parties involved in the English proceedings did not consent to their use, and permitting such use would risk substantial unfairness to the SFO in the Guernsey proceedings (to which it was not a party). The public interest in preserving the integrity of criminal investigations also protected those, such as Grant Thornton, who had provided information to the SFO, so that their confidential records concerning the investigation could not be used outside the English proceedings.
  • As to the documents that had been read or referred to in public hearings, the court restored the protection afforded by CPR 31.22(1) on the basis that the SFO had shown that there were "very good reasons" to override the principles of open justice and transparency. All the documents related to a criminal investigation and so engaged the strong public interest against their collateral use. It was also relevant to assess the significance of the documents in the context of the proceedings in which they were referred to and the circumstances in which they had been produced5. In this instance, they had not been referred to at trial and the references had been only marginal in the context of the proceedings as a whole.

The decision demonstrates that preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from any wider dissemination of that information will be strong factors in favour of preventing the collateral use of documents.

But, possibly, if the parties can offer safeguarding arrangements

Similar issues were considered in a more recent, unreported decision in the Tchenguiz proceedings, where both parties sought permission to use in those proceedings documents (and extracts from witness statements) that had been disclosed by the SFO in separate proceedings brought by the Tchenguiz brothers against the SFO: Tchenguiz v. Grant Thornton [24 May 2017] (unreported).

Given the Rawlinson decision6, it might have been expected that this application would fail on public interest grounds in preserving the integrity of criminal investigations. However, Knowles J granted permission on the basis that the parties had been able sensibly to narrow the scope of the application and to agree to safeguarding arrangements and redactions of the documents. Relevant factors included the fact that, had the SFO proceedings gone to trial, the documents would have been in the public domain, and the trial judge would in any event retain discretion in relation to the use of the documents.

What constitutes "special circumstances"?

In a recent decision (outside the Tchenguiz litigation) the court gave careful consideration to what might constitute the "special circumstances" required for the court to permit collateral use of documents: Libyan Investment Authority v. Société Générale SA & others [2017] EWHC 2631 (Comm).

The Libyan Investment Authority (LIA) sought permission to review documents disclosed in proceedings against Société Générale (and two individual defendants), which had been settled. The purpose of the review was to investigate whether to seek permission to use those documents for separate proceedings it might wish to pursue against other financial institutions (and the two individual defendants) in relation to separate transactions it had identified. Such a review would fall within the prohibition on collateral use, unless permitted by the court7.

Teare J refused permission on the basis that the receiver bringing the application on behalf of the LIA lacked power to make the application. However, he went on to consider whether the application would have been granted if the receiver had such power. This involved considering the test set out in Crest Homes v. Marks, permitting a party to litigation to be released from the prohibition on collateral use where there are special circumstances that justify that release and no injustice would be caused to the other party.

Special circumstances will typically arise where there are conflicting public interests, for example between the public interest in enforcing the collateral use restriction so as to encourage disclosure of documents in civil and criminal proceedings, and the public interest in facilitating the investigation or prosecution of criminal offences.

The court was clear that the LIA could not rely on the proposition established in Marlwood v. Kozeny8, that the public interest in the investigation and prosecution of fraud as a criminal offence will usually take precedence over the public interest in enforcing the collateral use restriction, since the LIA is not a public body charged with investigation and prosecution of fraud as a criminal offence. However, it accepted that in principle there was a strong public interest in facilitating the just resolution of civil litigation9. The LIA's purpose in seeking to use the documents engaged that public interest. Whether that amounted to special circumstances required careful examination of all the circumstances of the case. The court considered a number of factors in the exercise of its discretion and concluded that the requisite "special circumstances" had been shown. There was also no reason to consider that the review of the documents would cause the individuals harm in circumstances where it was to be conducted by those who already had access to the documents.

On that basis, Teare J determined (obiter) that he would have granted the application if the receiver had the power to make it. Although his findings were made obiter, the judge indicated that he would hear argument as to whether the issue of the receiver's power could be overcome. If that should be the ultimate outcome, it is possible that his obiter findings could become decisive of the case10.

The approach to take

The recent case law has provided welcome clarification on some of the issues faced by those assessing whether they are able to make use of disclosed documents and in what circumstances such use will be prohibited or permitted. However, this remains a difficult area where competing public interests have to be finely balanced. It is worth bearing in mind the following practical points:

  • if there is any doubt as to whether the intended use could breach the prohibition on the collateral use of disclosed documents, the safest route is to apply for permission under CPR 31.22(1)(b);
  • not doing so could risk you being in contempt of court, although the breach would have to be deliberate or reckless;
  • the chances of obtaining the court's permission to use documents for a collateral purpose will be enhanced if applicants take a pragmatic approach and put forward safeguarding measures.


1. As set out in Tchenguiz v. Director of the Serious Fraud Office & others [2014] EWCA 1409 at [56].

2. [2014] EWCA Civ 1128 at [40].

3. Miller v. Scorey [1996] 1 WLR 1122.

4. Crest Homes v. Marks [1987] AC 829, cited in Tchenguiz v. Director of the Serious Fraud Office & others [2014] EWCA Civ 1409 at [57] and [66(i)].

5. Lily Icos Ltd v. Pfizer Lts (No 2) [2002] EWCA Civ 2.

6. [2015] EWHC 266.

7. Tchenguiz v. Grant Thornton [2017] EWHC 210 (Comm) at [29].

8. [2004] EWCA Civ 798.

9. See Tchenguiz v. Director of the Serious Fraud Office & others [2014] EWCA Civ 1409 at [66(iii)].

10. A subsequent application to amend the receivership order, thereby conferring power on the receivers to apply for permission to make collateral use of the documents, has been allowed: Shaw & others v. Breish & others [2017] EWHC 2972 (Comm). The outcome of the adjourned application for permission to make collateral use of the documents is awaited.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
20 Nov 2018, Seminar, London, UK

London, Paris and Toronto are all aiming to deliver major new rail lines. This seminar will examine the schemes and consider the challenges.

23 Nov 2018, Seminar, Berlin, Germany

Please join us at our Berlin office for a breakfast seminar on the Israeli start-up scene and about investing in Israeli companies with a particular focus on smart mobility, PropTech and digital health.

27 Nov 2018, Webinar, Frankfurt, Germany

The German real estate and regulatory market presents challenges but also opportunities that you do not find elsewhere.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions