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Case No: PTA 2000/0525/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE SWANSON
KINGSTON UPON HULL COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27th July 2000
B e f o r e :
LORD JUSTICE MORRITT
LORD JUSTICE MAY
and
THE HON. MR JUSTICE FORBES
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MICHAEL CASSIDY
|
Appellant
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- and -
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DAVID PATCHETT HAWCROFT
|
Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Joanne Cash (instructed by Peter Carter-Ruck & Ptnrs for the
Appellant)
Rupert Elliott (instructed by Gosschalks for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MAY:
1. This is an appeal by the claimant, Michael Cassidy, with the permission of
Aldous LJ, against the decision and order of H.H. Judge Swanson made on 23rd
December 1999 in the Kingston upon Hull County Court. The judge then heard and
determined in the defendant's favour a preliminary issue to the effect that Mr
Cassidy was precluded from bringing his proceedings for slander and libel
because they were brought in respect of and in reliance on a document and
information contained in it which Mr Cassidy had obtained by discovery in other
proceedings. The judge ordered Mr Cassidy's action to be stayed and ordered
him to pay Mr Hawcroft's costs.
2. Mr Cassidy had an interest in land and property at Bursea Lodge Farm. In
1991, Receivers were appointed over this property. Eversheds were the
solicitors who acted for the Receivers. In the summer of 1992, Mr Hawcroft's
solicitors were Taylor Broomer & Co. of Hull. In August 1992, the
Receivers offered the properties for sale. In September 1992, they accepted,
subject to contract, an offer by Mr Hawcroft for one lot of the land. By
January 1993, contracts had not been exchanged.
3. On 25th January 1993, Mr Hawcroft's solicitors wrote a letter to Eversheds.
The letter is central to these proceedings and to this appeal. It included the
following:
"Re: Hawcroft from Lloyds Bank plc
Lot 1 Bursea Lodge Farm
Our client recently attended at this office to express his strong reservations
about proceeding to exchange of Contracts. His concerns stem from comments
made by various local people. Rumours are circulating that Mr Cassidy intends
to wreak vengeance upon those persons who, as he sees it, are acquiring his
land at below market price and without his approval. Whilst we are not
prepared to commit to paper any further details the end result is that our
client fears for his own safety and that of his family and property."
4. The receivership proceeded. Mr Cassidy took proceedings in the Leeds
County Court and, on 13th April 1993, he applied without notice for an
injunction to restrain the Receivers from disposing of any land at Bursea Lodge
Farm. Mr Brian Horrocks, a partner in Eversheds, got to hear of this
application. He attended the court and undertook on behalf of the Receivers
not to sell any land until after a hearing of Mr Cassidy's application on
notice - as it happened, in the Bradford County Court - on 21st April 1993.
For the purpose of that hearing, Mr Horrocks swore a long affidavit. In
paragraph 18 of that affidavit, Mr Horrocks said that the Receivers had tried
to dispose of various lots in the face of obstruction by members of the Cassidy
family. He understood that in consequence purchasers had been deterred from
submitting offers or had submitted extremely low offers. He gave a reported
example of aggressive remonstrations from both Mr and Mrs Cassidy in the
presence of prospective purchasers. He then said:
"One prospective purchaser of Lot 2 has verbally informed the Receivers' Agent
that whilst he would be interested in purchasing Lot 2 and the farmhouse (with
vacant possession) he was not prepared to proceed as long as Bernard Cassidy
remained on site. My firm have received a letter (which in the circumstances I
have chosen not to exhibit to this Affidavit): this letter was received by [sc.
from] solicitors acting for an interested party in one of the lots and the
following is a true extract from the said letter:
"[Our client's] concerns stem from comments made by various local people.
Rumours are circulating that Mr Cassidy intends to wreak vengeance upon those
persons who, as he sees it, are acquiring his land at below market price and
without his approval. Whilst we are not prepared to commit to paper any
further details the end result is that our client fears for his own safety and
that of his family and property.""
5. As may be seen, this was a direct reference to and quotation from the
letter of 25th January 1993.
6. The hearing on 21st April 1993 took place in open court and the affidavit
was used. Mr Cassidy's application for an injunction was dismissed. By
December 1993, these injunction proceedings were dormant but still in being.
On 13th December 1993, Mr Cassidy obtained an order in those proceedings
that:
"... the Defendants [the Receivers] do forthwith supply to the Plaintiff copies
of the correspondence referred to in paragraph 18 of the Affidavit of Brian
Julian Horrocks dated 20 April 1993".
7. Mr Horrocks did not consent to that order but he did not feel able to
oppose it in the light of the then CCR Order 14 rule 4, to which I shall refer
later in this judgment. In consequence, Eversheds sent to Mr Cassidy a copy of
Taylor Broomer & Co's letter to them of 25th January 1993.
8. Mr Cassidy began the present proceedings by High Court writ dated 29th
December 1995. He claimed against Mr Hawcroft damages for slander and libel.
At that time, the normal statutory limitation period for bringing proceedings
for defamation was 3 years. It has since been reduced to one year. The
alleged slander was the spoken publication to his solicitors, Taylor Broomer
& Co, of words which it is alleged were reported in the letter of 25th
January 1993. The alleged libel was the publication of the letter itself by
his solicitors. By his original defence, Mr Hawcroft admitted the occasion of
the alleged slander and admitted that he had expressed certain concerns to his
solicitor. He also admitted that his solicitors had written the letter of 25th
January 1993 to Eversheds and quoted the allegedly defamatory words as being
part of the letter. He served a true copy of the carbon of the letter with the
defence. The defence also contained various defences to the substance of the
claims.
9. At a later stage, Mr Hawcroft's defence was amended. In its amended form,
the substantive defences in summary included that the publication of the
alleged slander was on an occasion of absolute privilege, alternatively of
qualified privilege; that the publication of the alleged libel was on an
occasion of qualified privilege; and that the publications did not refer to
Michael Cassidy, but to his father Bernard Cassidy. There were other matters
of substantive defence. The amended defence also pleaded that the proceedings
for both libel and slander were an abuse of process because they were brought
in reliance on a document and information in it - that is, the letter of 25th
January 1993 - which Mr Cassidy had obtained by way of discovery in other
proceedings. The particulars of that plea relied on the facts which I have
related leading up to Mr Cassidy obtaining the letter from Eversheds by virtue
of the court order of 13th December 1993. It was this issue which was the
subject of the preliminary issue which Judge Swanson decided in favour of Mr
Hawcroft.
10. The defendant's contentions were and are that documents obtained on
discovery are subject to an implied undertaking not to use them or the
information contained in them for the purpose of proceedings other than those
in which they were disclosed. This, it is submitted, applies to Mr Cassidy's
obtaining of the copy of the letter of 25th January 1993 which was an essential
ingredient of his ability to bring the defamation proceedings. He could not
have done so otherwise because the reference to the letter in paragraph 18 of
Mr Horrocks' affidavit of 20th April 1993 did not identify some of the
necessary basic ingredients of a defamation pleading - for example the identity
of the publisher and the occasions of publication. The application of 13th
December 1993 was itself an abuse because it was made in dormant proceedings
with the ulterior motive, not of using the document in the proceedings in which
it was to be produced, but for separate defamation proceedings. [Mr Cassidy
challenges the contention that he did not have sufficient information apart
from the letter to start the defamation proceedings, but, for reasons which
will appear, it is not necessary to determine this part of the dispute.]
11. The judge rehearsed the defendant's contention as being that there is a
general rule that a party who discloses a document on discovery is entitled to
the protection of the Court against any use of it otherwise than in the action
in which it was disclosed. The document and the information in it obtained by
the parties in the course of discovery are obtained subject to an implied
undertaking not to use them for any purpose other than the proceedings in which
they are compulsorily disclosed. If they are used for other proceedings, that
is an abuse of process and a contempt of court. There will be no abuse or
contempt if the court releases the person subject to the implied undertaking
from it, but there was no such release in this case. Mr Horrocks did not
voluntarily disclose the letter.
12. Mr Cassidy's case relied on the former CCR order 14 rule 8A, which was in
identical terms to the former RSC order 24 rule 14A, and which provided
that:
"Any undertaking, whether express or implied not to use a document for any
purposes other than those of the proceedings in which it is disclosed shall
cease to apply to such document after it has been read to or by the Court, or
referred to, in open Court, unless the Court for special reasons has otherwise
ordered on the application of a party or of the person to whom the document
belongs."
13. The reference to the letter of 25th January 1993 in Mr Horrocks' affidavit
of 20th April 1993 had, of course been before Mr Cassidy obtained a copy of it.
But the essential contention was that, since the letter had been referred to in
open court on 21st April 1993, order 14 rule 8A operated so that any implied
undertaking by Mr Cassidy ceased (or never came into existence).
14. The judge's consideration of this issue concentrated on two strands of
authority which it was not easy to reconcile. On the one hand were cases
including Tejendrasingh v. Christie [1995] EMLR 152 (Drake J.);
Tejendrasingh v. Metsons [1997] EMLR 597 (the same case in the Court of
Appeal); Mahon v. Rahn (unreported, Brooke J. 19.6.96); and Taylor v.
Director of Serious Fraud Office [1999] 2 AC 177 (House of Lords) which
favoured (or arguably favoured) a narrow ambit to the release from the
undertaking effected if order 14 rule 8A applied. On the other hand were cases
including Derby v. Weldon (No. 2) Browne-Wilkinson V-C, the Times 20th
October 1988; Mahon v. Rahn [1998] QB 424 (Court of Appeal); and
Smith Kline Beecham v. Connaught Laboratories [1994] 4 All ER 498, which
favoured the proposition that, once a document has been used and referred to in
open court, it is a public document and no special undertaking continues. The
judge decided that he was bound by Tejendrasungh v. Metsons in the Court
of Appeal. He had quoted and applied a passage from the judgment of Butler
Sloss LJ in that case at page 602, where she said:
"... Quite clearly, rule 14A [the High Court version of the rule], which was
brought into effect to get rid of what have been called the absurdities of the
Harman v. The Home Office situation, is not to be used to enable a
litigant who obtains documents in one set of proceedings to use them as the
foundation for a wholly different, completely separate set of proceedings, as
in this case, for defamation.
It is not, as I said, a matter of confidentiality; it is a matter of the
undertakings. The scope of rule 14A does not, in my view, give the applicant
the right to start quite different sets of proceedings relying upon these
attendance notes."
15. The judge further held that, even if Mr Cassidy was entitled to rely on
the contents of the letters insofar as they were incorporated into the
affidavit, the application for discovery, for the motives which the judge had
found, was not a proper use of the process of the court and amounted to an
abuse. The further use of the information, thus for the first time discovered,
in an action for defamation amounted to a further abuse. The judge concluded
that the action should be stayed for that reason also.
16. Mr Cassidy's grounds of appeal seek to challenge certain of the judge's
findings of fact. It is only necessary to consider one of these, that is that
Mr Horrocks did not disclose the letter voluntarily. On this point, Miss
Cash's submissions took what was for me at least an unexpected turn. It seems
that the preliminary issue before the judge, at which Mr Cassidy was
unrepresented, proceeded on the basis that his application on 13th December
1993 was an application for discovery; that the order made was one which
compelled Mr Horrocks to disclose a document which he was not otherwise obliged
to disclose; that the receipt of the letter by Mr Cassidy was therefore subject
to the usual implied undertaking; and that the issue was that which depended on
order 14 rule 8A. Miss Cash pointed out to us, however, that the order of 13th
December 1993 was not an order for discovery, but an order for the production
for inspection of a document referred to in an affidavit. It was an
application (as Mr Horrocks had acknowledged in an affidavit) under CCR order
14 rule 4. This provided:
"(1) Any party to an action or matter shall be entitled at any time to serve
on any other party in whose pleadings, affidavits or witness statements
reference is made to any document a notice requiring him to produce it for the
inspection of the party giving the notice and to permit him to take copies
thereof.
(2) The party on whom a notice is served under paragraph (1) shall, within 4
days after service, serve on the party giving the notice a notice stating a
time within 7 days after service thereof after which the documents, or such of
them as he does not object to produce, may be inspected at a place specified in
the notice and stating which (if any) of the documents he objects to produce
and on what grounds."
17. Thus is was not an application for discovery, but an application for
production for inspection to which Mr Cassidy was entitled under the rule and
to which Mr Horrocks offered no opposition because he rightly appreciated that
there was no proper ground for doing so. The relevant disclosure, that is in
the affidavit, was voluntary. Mr Cassidy was entitled to production. There
was no implied undertaking and no fetter on the use of the document to which Mr
Cassidy was in law entitled.
18. There is in my judgment no answer to this submission. Mr Elliott
struggled to make submissions to the contrary. He submitted that, under the
rules, inspection of documents and production of them are the same. Mr
Horrocks, who is not the defendant in these proceedings, did not take
objection, but he might have done so. The provision of the document was a form
of discovery and part of a compulsory process which carried with it an implied
undertaking. Mr Horrocks made clear that he was not exhibiting the document
and only referred to it in part. Mr Cassidy only secured the document in its
entirety by reason of a compulsory court order. The implied undertaking arose
from the form of the rule and Mr Horrocks' ability to object, although he did
not in fact do so. Mr Elliott had to concede that, if Mr Horrocks' affidavit
had referred to the whole of the relevant part of the letter, that would have
been for relevant purposes a complete voluntary disclosure of the letter to
which no implied undertaking could attach. In my view, the fact that he only
referred to and quoted part of it makes no difference. The disclosure was
voluntary - and for good measure in open court - and Mr Cassidy was entitled to
production for inspection. There was no implied undertaking and the basis on
which the issue proceeded before the judge was to this extent erroneous,
largely because Mr Cassidy was not represented. This conclusion accords with a
passage in the judgment of Hobhouse J. in Prudential Assurance v. Fountain
Page [1991] 1 WLR 757 at 767H. Hobhouse J. was there considering the
categories of case discussed by Browne-Wilkinson V-C in Derby v. Weldon (No.
2) in these terms:
"With regard to the third category of documents that he had to consider, that
is to say documents which a party was required to produce because they had been
referred to in a voluntary affidavit, the Vice-Chancellor said that the source
of the obligation to produce those documents was the voluntary affidavit and
that therefore the subsequent order of the court was merely the recognition of
an obligation which the party had already voluntarily accepted. Such documents
were subject to no relevant restriction."
19. Thus in my judgment these proceedings were not an abuse as being brought
in reliance on the letter of 25th January 1993 in breach of any implied
undertaking.
20. Mr Elliott nevertheless submitted that the judge was right to conclude
that the proceedings were an abuse for the more general reason that Mr
Cassidy's acquisition of the document in proceedings which were dormant was
founded on an improper motive and that the court should recognise this by
staying the proceedings. Even if Mr Cassidy was entitled to production of the
document, that did not mean that his use of it was not an abuse. Mr Elliott
submitted that there is abuse where the court's procedure is not used as it is
intended, but misused for an ulterior purpose. The defamation claim was
dependent on the information in Mr Horrocks affidavit, which Mr Elliott
accepted was available for unrestricted use, but also on the sight of and
physical possession of the entire letter. Mr Cassidy's case that he had
sufficient information to start the proceedings without the letter is not
credible and the judge rejected it. His purpose in acquiring the letter itself
was palpable. Mr Horrocks was trying to protect his source. He did not
produce it voluntarily. The injunction proceedings were moribund. The court
has a discretion to control in the public interest the use of documents
produced as a result of its process. The procedures of the court should not be
misused and, although Mr Hawcroft had no standing in the injunction proceedings
to prevent the use of a document which was not his, the court should seek to
avoid unnecessary invasion of privacy and confidentiality and to avoid the
spawning of parasitical litigation of a disproportionate nature. Looking at Mr
Cassidy's case in the round, it has little merit and it is wholly consistent
with the overriding objective of the Civil Procedure Rules that it should be
stayed.
21. It may turn out that it was indeed a great pity that the defendant chose
to take a procedural abuse point as a preliminary issue, rather than
concentrating on the substantive merits of his defence. But the present abuse
submission cannot, in my judgment, properly extend beyond questions relating to
the acquisition of the letter of 25th January 1993. As to that, I assume for
the purpose of this judgment that Mr Cassidy may well have wanted and needed
the letter, as the judge found, to be enabled to start these proceedings. I
should emphasise that this is an assumption only, since Mr Cassidy has appealed
against that finding, but it is not in my view necessary to determine that part
of his appeal. Upon that assumption, he was nevertheless entitled to its
production and I do not see how it can be an abuse to obtain production of a
document to which he was entitled, which had been voluntarily disclosed by Mr
Horrocks to whom it belonged and whose production he did not oppose. The abuse
submission is further, in my view, untenable in the light of the admissions
made in the defence, to which I have referred, which would have entitled Mr
Cassidy to production of the letter in these proceedings, if a copy of the
carbon had not already been served with the defence itself. The proposition
that proceedings are an abuse because they depend on a letter which the
defendant has admitted and himself served with his defence is one which, in the
circumstances of this case, in my view, has no force.
22. For these reasons I would allow this appeal.
23. Mr Justice Forbes: I agree.
24. Lord Justice Morritt: I also agree.
Order: Appeal allowed with costs.
(Order does not form part of approved judgment.)
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