CPR r31.22 provides that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it was disclosed, except where (inter alia) the court gives permission. Permission was sought in this case to use disclosed documents in separate proceedings in Belgium (where disclosure is only available in a very limited form). The two proceedings are part of global litigation between members of the same two groups of companies.
Chief Master Marsh noted that, under English law, "cogent reasons" are needed before a collateral use is allowed, and there has to be a balance between the competing interests of justice. Where the documents are proposed to be used in foreign proceedings, the English court must assume that European courts (absent cogent evidence to the contrary) will ensure that their proceedings are used fairly and therefore that there is no risk of injustice. Here, it was noted that "Use in legal proceedings in Belgium with its built-in safeguards is quite different to wider use, such as use by the press".
In this case, the application was for permission to use over 100 documents. Chief Master Marsh held that he would need to review each of the documents for their relevance to the Belgian claim and rejected an argument that a sampling approach could be adopted: "The sampling approach is more obviously suitable where the documents are an homogenous class", which was not the case here.
He went on to note that "where the court is asked for permission to use documents in foreign proceedings, it is not necessary for the court to do more than consider whether the documents are likely to be of relevance to the foreign proceedings. It is not for the court to determine whether the documents will, in fact, be thought to be sufficiently important to warrant introduction in the foreign claim by the foreign lawyers who review them, or that the foreign court will find them to be sufficiently compelling to give them weight in that court's determination". The claimants were able to demonstrate on the facts that the majority of the documents are likely to be relevant to the Belgian proceedings.
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