Richard Taylor is a partner at Stringer Saul
Practitioners are familiar with the implied undertaking of parties to litigation that disclosed documents may not be used except for the purpose of that litigation. Familiar too is the rule that the implied undertaking ceases to apply where a document is read or referred to in open court.
It is likely primary evidence and submissions will be produced in written form and read by the judge before a hearing. Often, disclosure documents are referred to in those documents. The decision of the Court of Appeal in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc (The Times, 13 July 1999) affirms the implied undertaking will cease for documentation referred to in this way.
Connaught owned a patent which SmithKline Beecham (SB) sought to revoke. A trial date was set, with two days for pre-reading by the judge. Disclosure documents, witness statements and expert reports were lodged with the court, together with skeleton arguments and a reading guide for the judge.
The day before trial, Connaught offered to surrender its patent. SB refused, and asked the court to revoke the patent. The judge said he had read the material and would order the patent revoked.
After the trial, SB applied for a declaration that disclosure documents referred to in the reading guide had been released from the implied undertaking.
This was refused on the grounds that there had not been a fully fought out trial. The Court of Appeal rejected this. The judge had said in open court he had done all the pre-reading requested and that was the basis on which he revoked the patent. The disclosure documents had been referred to in open court.
The Court of Appeal decision affirms that written evidence and submissions should not limit the principle of the open administration of justice. If confidential documents are disclosed, practitioners should apply for an order that the implied undertaking will continue.
A common practice involving such material is to apply at the start of trial for an order that the obligation will subsist during the trial. At the end of the trial the parties may then thrash out with the judge the documents for which it is appropriate the obligation should continue.