Collateral use of disclosed documents under CPR 31.22(2)

26 April 2024

In the recent decision of Various Claimants v Mercedes-Benz Group Ag and others [2024] EWHC 695 (KB), the High Court provides some noteworthy comments for any party seeking to prevent the collateral use of disclosed documents under Rule 31.22(2) of the Civil Procedural Rules (CPR).

What is the background to the Mercedes-Benz Group case?

On the facts of the Mercedes-Benz Group case, the High Court was asked to consider an application by the Mercedes Defendants for an interim order under CPR 31.22(2) — sought until final determination of all claims in the Mercedes-Benz NOx Emissions Group Litigation — prohibiting the collateral use of certain documents disclosed by the Defendants, even where those documents had been read to or by the court, or already referred to, at a hearing held in public.

In the context of CPR 31.22(2), collateral use means for use beyond the legal proceedings. As such, the effect of the order sought by the Defendants was that the different categories of documents under consideration could be used for the purposes of the litigation, but not otherwise, where the consequences of that included non-disclosure of such documents to the public. The documents were said by the Defendants to contain sensitive commercial information which was not generally available, publication of which was argued on their behalf not to be necessary for open justice.

What is the relevant law involved in the Mercedes-Benz Group case?

The basic rule under CPR 31.22 is that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed unless it comes within one of the exceptions under subsection (1). These exceptions include where the parties agree or the court gives specific permission, as well as where "the document has been read to or by the court, or referred to, at a hearing which has been held in public", ie; the fundamental open justice principle.

However, Rule 31.22(2) goes on to provide that "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."

What was the outcome in the Mercedes-Benz Group case?

In dismissing the Defendant’s application for an order under CPR 31.22(2), the High Court was not persuaded that there were good reasons to override the principle of open justice. It was accepted that there may be some force in restricting publication of truly sensitive details of extant systems which are not already in the public domain. The court also noted that any genuine concern about collateral use of material whose commercial sensitivity could be justified might be afforded protection, not least if the role of that material at trial was dubious. However, any such application must be properly particularised and evidenced before the court to stand any chance of success.

The Mercedes Defendants had instead adopted a broad-brush approach with blanket assertions in seeking to prevent publication of entire categories of documents.

Legal disclaimer

The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.

Before acting on any of the information contained herein, expert advice should always be sought.

The Dispute Adviser

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