Where a party to litigation is compelled to hand over documents in the case, those documents can only be used by the recipient for the purpose of the litigation in which the documents were obtained.
This undertaking not to use documents obtained under compulsion for another purpose is implied for all litigants and is called a ‘Harman Undertaking’, named after the 1983 English case Harman v Secretary of State for the Home Department, where it was first articulated.
The Harman Undertaking tries to find a ‘midpoint’ between two important legal principles:
- that parties to litigation should have all the evidence against them so that there is no ‘trial by ambush’; and
- that a person (the disclosing party) is entitled to confidentiality and privacy.
‘Discovery’ is the process that prevents trial by ambush. Under the discovery process, each party must make available to the other party every document that is relevant to the matters in question based on the pleadings in the case. A party cannot object to providing documents because those documents are personal or contain sensitive commercial information – that is, discovery violates the right to privacy and confidentiality.[1]
Enter the Harman Undertaking. As the court compels litigants to provide sensitive and confidential documents (with any failure to do so being a contempt of court), the court also requires that each of those documents only be used for the purposes of the litigation that caused them to be produced. For example, if a person identifies from a document obtained in discovery from the other party, or under subpoena from a third party, that there is a new claim against a person for an unrelated matter, that document (no matter how incriminating) cannot be used to prosecute the new claim. Using a document provided under compulsion for any other purpose is a contempt of court.
Very occasionally the court will use its power to dispense with or modify the Harman obligation if there are ‘special circumstances’. In the recent matter of D’Sylva v Bloombold Investments Pty Ltd [2023] WASC 141, with the consent of both parties, the Western Australian Supreme Court released the parties from the Harman Undertaking to allow documents obtained in discovery and produced by a third party, to be used by the litigants ‘for the limited purposes’ of obtaining tax advice and filing tax returns.
The Court found that releasing the documents for taxation purposes was in the interests of justice as it allowed the parties to obtain the proper accounting advice and lodge proper tax returns with the ATO.
If you receive any documents under a compulsive Court process you must ensure that you do not use, distribute or publish the documents or information contained in the documents in any way, otherwise you will be in breach of your implied Harman Undertaking.
If you have any doubts about documents in your possession obtained during a court process and your rights and obligations in relation to them, don’t hesitate to contact Steedman Stagg Lawyers for assistance and advice.
[1] Note though that in appropriate cases a disclosing party concerned about documents it is producing which are, for example, confidential or which contain commercial‑in‑confidence information, may apply for orders which impose a confidentiality regime in relation to who can access those documents within the litigation, and how they are to be protected and or kept confidential during trial and in the court’s reasons for decision.