Written by Matthew Freeman
In law, there is an implied undertaking in relation to the disclosure of documents, known as the ‘Harman Undertaking’. The Harman Undertaking is an important obligation tied to the disclosure of documents or other evidence obtained during litigation. When a party discloses documents or evidence to another party, it is typically done so under the assumption that the information will only be used for the purpose of the current legal proceedings and not for any other purpose.
Background
The Harman Undertaking derives from the case, Harman v Secretary of State for Home Department [1983] 1 AC 280.
In Harman v Secretary of State for Home Department [1983] 1 AC 280, the Court held that a party who receives documents from the other side, which were produced under the compulsory process of the Court during a legal proceeding, is subject to an implied undertaking not to use the documents for a “collateral or ulterior purpose”.1
The findings made in Harman v Secretary of State for Home Department [1983] 1 AC 280 were adopted by the Australian High Court in Hearne v Street (2008) 235 CLR 125. As stated in Hearne v Street (2008) 235 CLR 125:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence”.2
The Harman Undertaking does not prevent the receiving party from using the disclosed documents, provided the use of said documents is reasonably connected to the legal proceedings. A collateral or ulterior purpose is therefore one that is not reasonably connected with the conduct of the litigation in which the documents were provided.
Parties
The Harman Undertaking is a fundamental rule that applies to all parties of the litigation, and it extends to all Australian Courts and Tribunals. The Harman Undertaking not only binds the Plaintiff/s and Defendant/s in the proceedings, but it also extends to any third party who obtains, or is given access to, documents subject to the undertaking, including for example, witnesses and experts.
Purpose
The purpose of the Harman Undertaking is to:
- Promote complete and honest disclosure between the parties to ensure the litigation is properly conducted.
- Recognise that requiring a party to disclose material in a proceeding may infringe their right to confidentiality and to ultimately protect a party’s confidentiality in such circumstances.
- Achieve a balance between safeguarding a party’s confidentiality and the compulsory requirements of Court procedures.
Documents
The Harman Undertaking applies to all documents, regardless of whether the documents are privileged or not. The documents may include, for example, documents produced on discovery during the litigation, witness statements, expert reports, documents produced under subpoena, affidavits, or documents disclosed pursuant to a Court order.
The types of documents to which the Harman Undertaking applies was referenced in Hearne v Street (2008) 235 CLR 125:
“The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits”.3
Simply, if you obtain a document or information from another party throughout legal proceedings, and those documents were provided under the Court’s compulsion, you cannot use the documents for any purpose outside the legal proceedings in which the documents were produced (unless you have the leave of the Court).
Cessation
The implied undertaking usually ceases when a document is adduced in evidence or referred to in open Court, as the document then becomes public. But this is subject to any contrary order of the Court restricting its publication.
The implied undertaking may otherwise cease if the Court exercises its discretion to release a party from the Harman Undertaking. For this to occur, an Application must be made by the party seeking the release, and the Court must assess whether special circumstances exist to warrant a release. As stated in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, the existence of “special circumstances” will depend on the following factors:
“For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice that the author may sustain, whether the document pre-existed the litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contain personal data or commercially sensitive information), the circumstances in which the documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document in achieving justice in the second proceeding”.4
The requirement to obtain an order from the Court to be released from the implied undertaking is a direct result of the undertaking being owed to the Court, rather than to the other party in the proceedings.
Reminder for Insurers
It is important for insurers to remember that documents obtained during legal proceedings (say for example, another insurer’s claim notes) cannot be used for a collateral or ulterior purpose on a separate or unrelated matter.
A party to a proceeding (including an insurer that is instructing the litigation by way of its rights of subrogation) may breach the Harman Undertaking if for example:
- the party uses the documents and information to advance another insurance claim;
- or if a party uses the documents and information in the conduct of its business to secure a competitive advantage over another insurer;
- or if a party provides the documents and information to the media.
Should you wish to discuss any of the above, please contact either Matthew Freeman on 07 3330 9163 or Ligeti Partners on 03 9947 4500.
