The implied undertaking – What is it?

The use of information obtained or produced under the compulsory processes of the Court cannot be used for a “collateral or ulterior purpose” unrelated to the proceedings.

Information that is obtained through Court processes such as discovery, interrogatories and subpoenas cannot be used for a “collateral or ulterior purpose” unrelated to the proceedings in which the information was obtained. This is known as the implied or “Harman” undertaking whose name is derived from the decision of the House of Lords in Harman v Secretary of State for the Home Department.1

The Harman undertaking is not a voluntary obligation but rather a substantive obligation imposed by law. It is an “obligation to the Court, not the other party, which is implied“. A breach of the implied undertaking is therefore treated as contempt of Court.

The rationale for the imposition of the implied undertaking is to:

  • ensure that full and frank disclosure of discovered documents is obtained;
  • protect the balance of a party’s right to privacy/confidentiality and the compulsory nature of the Court process; and
  • prevent the abuse of the Court’s processes for ulterior purposes.

In Hearne v Street,2 the High Court of Australia reaffirmed the importance of parties abiding by the implied undertaking not to use documents received by way of discovery or other compulsory Court processes for any purpose other than the conduct of the proceedings in which they were produced.

The implied undertaking applies to all documents and information that one party to litigation is compelled, either by reason of a rule of Court or by reason of a specific order of the Court, to disclose.

The types of material disclosed to which the implied undertaking applies include:

  • documents inspected after discovery;
  • answers to interrogatories;
  • documents produced on subpoena;
  • documents produced for the purposes of taxation of costs;
  • documents produced pursuant to a direction from an arbitrator;
  • documents seized pursuant to an Anton Piller order;
  • witness statements served pursuant to a judicial direction; and
  • affidavits.3

The High Court, in Hearne, confirmed that the primary person bound by the implied undertaking is the litigant who receives documents or information from the other side pursuant to litigious processes. The High Court, however went further to say that the implied undertaking also binds others to whom documents and information is given, such as third parties who are aware that the documentation or information have come from legal proceedings.4

Due to the fact that the implied undertaking is an obligation which is owed to the Court, it cannot be waived by the parties alone.

The implied undertaking can, in certain circumstances, cease so as to allow the discovered information or documentation which would normally be prohibited, to be used other than for the purpose that they were given. The situations include:

  • a release by leave of the Court where there are special circumstances making it just to do so;5 or
  • when discovered material is received into evidence in open court and the information within it thereby becomes public.6

[1] [1983] 1 AC 280.

[2] [2008] HCA 36.

[3] Hearne v Street [2008] HCA 36, [96].

[4] Hearne v Street [2008] HCA 36, [109]-[112].

[5] Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [31].

[6] Hearne v Street [2008] HCA 36, [96].

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