The use of evidence obtained for civil proceedings in any parallel or subsequent cross-border criminal proceedings requires careful consideration. Admissibility of such evidence is an issue that arises regularly.
In the UK, both sides involved in civil litigation are under an obligation to disclose documents to each other. This is done so on the understanding that the documentation concerned – or copies of it or any information contained within it – is not to be used for any additional, related purpose.
Rule 31.22
Rule 31.22 of the Civil Procedure Rules, states that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings for which it is disclosed, except where:
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public.
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
Under Rule 31.22, the court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to at a hearing which has been held in public. An application for such an order can be made by a party or by any person to whom the document belongs.
When it comes to establishing one of the three exceptions listed above, the burden of proof lies with the applicant (Tchenguiz v Director of the Serious Fraud Office (2014) EWHC 1315 Comm). The applicant must show why the documentation in question should be released. The judge in Tchenguiz v Director of the Serious Fraud Office gave indicators of the circumstances when a court would be likely to grant disclosure of documents. One of these situations was where there was the possibility that the documents in question could reveal criminal conduct. In the Tchenguiz case, there was the possibility that document disclosure could show “possible perjury, perjury-type offences or bribery offences’’. The court concluded that the exception did apply in this case as it would be a serious matter “if the documents revealed any criminality’’ and “any party who may be a victim of such a possible criminal offence should, in principle, be entitled to obtain legal advice in relation thereto.’’
The principal issue is whether the documents have been disclosed within the definition of rule 31.2 - a party discloses a document by stating that the document exists or has existed.
In pre-action disclosure – where documentation can be disclosed to prevent what could be unnecessary litigation – documents should only be disclosed when a collateral undertaking has been received, requiring leave from the court to use the material. Any breach of the collateral undertaking would be contempt of court.
Release of documents for criminal proceedings
In Marlwood Commercial Inc v. Kozeny (2004) EWCA Civ798, the claimants brought an action for fraudulent misrepresentation. Documents disclosed by the defendants indicated there had been criminal conduct. The Director of the SFO served notices under section 2 of the Criminal Justice Act 1987, requiring both parties to produce relevant documents to the agency.
The claimants sought permission under CPR 31.22 for the documents to be handed over, which the defendants opposed. The court granted permission to the claimants. Rix LJ, delivering the judgment of the court, noted that the court was resolving a conflict between public interest in the proper disclosure of documents in civil litigation and the separate public interest in the investigation of serious fraud allegations. He concluded that “the public interest in the investigation or prosecution of a specific offence of serious or complex fraud should take precedence over the merely general concern of the courts to control the collateral use of compulsorily disclosed documents.’’
It should be noted that the Criminal Justice Act 1987 does not prevent the SFO from disclosing documents received from third parties as a result of section 2 notices. In the Tchenguiz case, the court made it clear that the duty of confidence that the SFO has regarding information obtained in accordance with its statutory powers can be overridden in some circumstances. One such circumstance is when disclosure is required for a criminal prosecution in the UK (or elsewhere) under section 3(5) of the Criminal Justice Act 1987.
Section 17 of the Criminal Procedure and Investigations Act 1996 (CPIA) contains an implied undertaking that documents disclosed during a criminal investigation and trial will not be used for any purpose other than for that trial of the defendant. It is a contempt of court to knowingly use or disclose an object of information recorded in a document in contravention of section 17. Yet the principle of open justice, however, requires the legal process to be conducted in public, with access given to material and evidence referred to in open court because it is in the public domain.
Any party that intends to seek documentation used in proceedings for subsequent proceedings must, therefore, put together a strong, logical argument when making their application.