Managing parallel proceedings — tactical decisions involving disclosure

Managing parallel civil, criminal and/or regulatory proceedings related to the same facts (for example, a civil claim for compensation following an accident, alongside a Health and Safety Executive prosecution) can present a range of complex issues, one of which is when and how documents received in the course of one set of proceedings can be used in the parallel proceedings. Lily Grundy, Solicitor in Weightmans’ Regulatory Team, explains:

Parties involved in parallel proceedings have access to a range of documents from a variety of sources. The use of evidence and disclosed material is generally restricted to that which is necessary to secure justice in the relevant proceedings. Generally, a party is not permitted to use such material for a purpose that is not connected with the relevant proceedings, including for related proceedings, in the absence of certain exceptions being met. This can inevitably cause issues in the context of parallel proceedings where evidence and disclosure served in one action may be relevant to another.

How parallel proceedings are managed often involves tactical decisions. It is important for those involved to anticipate the broader strategic impact that decisions made in the context of each individual action may have.

A party seeking to rely on material served in one action for the purposes of another are required to seek permission from the relevant court or tribunal before proceeding to do so. In such circumstances, it is important for the applicant to consider what practical measures can be implemented to protect against the risk of inadvertent breach of the relevant rules governing disclosure.

For instance, cases involving parallel or consecutive civil and criminal proceedings require careful management. It is often the case that conflict or tension arises between the strategies adopted in each of the proceedings, the applicable procedure rules, and the timeframes within which they are required to operate. Note that parallel proceedings may also increase cost, thereby placing pressure on available resources and adding complexity to the overall disclosure process.

There may well be material that falls to be disclosed in criminal proceedings where the same cannot be said for civil proceedings. Consider also that where regulatory (or other civil proceedings) are conducted at the same time as a related criminal trial, there is a risk that evidence which may not be admitted at that trial (due to more restrictive rules of evidence) may enter the public domain in the course of the regulatory proceedings.

Civil proceedings

Rule 31.22 of the Civil Procedure Rules (“CPR”) states that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings for which it is disclosed, except where:

1. The document has been read to or by the court, or referred to, at a hearing which has been held in public;
2. The court gives permission; or
3. The party who disclosed the document and the person to whom the document belongs agree.

Under CPR 31.22, the court may make an order restricting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to at a hearing held in public. An application for such an order can be made by a party or by any person to whom the document belongs.

With regard to establishing one of the three exceptions above, the burden of proof rests on the applicant who must show why the material in question should be released. These provisions serve to encourage parties to comply with their disclosure obligations as well as recognising that disclosure is an invasion of a litigant’s right to privacy and confidentiality, and therefore ought to be limited to what is necessary to achieve justice.

If a party is unable to rely on any of the three exceptions against collateral use, it may seek the court’s permission to use documents disclosed or evidence served for the purposes of related proceedings. This would be by way of an application pursuant to CPR 31.22(1)(b) / CPR 32.12(2)(b), which can only be granted if there are special circumstances which establish a compelling reason for permitting collateral use. Whether such convincing grounds exist depends heavily on the facts of each case including the intended use of the document and any public interest considerations.

Criminal proceedings

The rules governing the use of disclosed material and evidence in criminal proceedings are derived from a number of sources including the Criminal Procedure Rules and the Criminal Procedure and Investigations Act 1996 (“CPIA 1996”).

Similar principles apply to the collateral use of documents disclosed to a defendant in criminal proceedings as to disclosed material and witness statements in civil proceedings. Typically, such material can be used in related proceedings only where it has been referred to in open court, or with the court’s permission. However, the primary concern from a criminal perspective is to ensure that the privacy and confidentiality of third parties who assist in providing information or witness evidence is not invaded any more than is necessary for the purposes of justice.

Section 17 of the CPIA 1996 provides an implied undertaking that documents disclosed during a criminal investigation and subsequent trial will not be used for any purpose other than that trial. It is in contempt of court to knowingly use or disclose an object of information recorded in a document in contravention of Section 17. However, the principle of open justice requires the legal process to be conducted in public, with access granted to material and evidence referred to in open court, as this is in the public domain.

Where documents / information derived from unused materials disclosed by the prosecution to criminal proceedings have not been referred to in open court, an application may be lodged by the defendant at any time (including after the proceedings have concluded) for permission to use the material for a collateral purpose, including for the purpose of parallel proceedings – see s.17(4) CPIA 1996 and Criminal Procedure Rule 15.7. A party seeking to obtain documentation for use in separate proceedings should consider drafting solid, logical arguments to substantiate their application.

There is however no equivalent statutory basis upon which a defendant can apply for permission to use material relied on as part of the prosecution case (i.e. “served evidence”). In any event, it is generally accepted that served material is subject to an implied undertaking against collateral use unless and until it is referred to in open court. It would therefore be advisable for a party seeking to rely on it for a collateral purpose to make an application to the court for permission to do so.

Regulatory proceedings

If provided for in the relevant governing rules, limitations on the use of disclosed documents or witness evidence can be imposed on parties to regulatory proceedings. Such limitations may be expressed as a requirement to keep certain information confidential, or in terms of a prohibition against collateral use.

It follows that a party seeking to use for other purposes documents or information acquired during the course of regulatory proceedings will need to consider the governing rules of the relevant regulatory body. The relevant rules may also set out the process to be followed by a party when seeking to lift or vary any restriction.

Where no specific route is stipulated, a party can consider seeking direction from the relevant court or tribunal as to how to proceed by way of an application. Where there are no specific restrictions as to the use of documents or information acquired during the course of regulatory proceedings, a party may elect to use the material for the intended collateral purpose without the need for further steps. Note, however, that given the limitations that apply to the use of material in civil and criminal proceedings, a decision to proceed in this way may be challenged by the regulator or the party who disclosed or served the material originally. This may be on the basis that it is in the public interest to restrict the wider use of the disclosed material and evidence.

Making tactical decisions

Decision making with regard to disclosure can present particular challenges where parallel or indeed consecutive proceedings are concerned. Obligations in terms of disclosure of case material can be very complex to manage hence anticipating any relevant obligations from the outset of a case can be crucial in preventing inadvertent breaches of rules and duties.

Separate legal teams with differing specialisms are often instructed to conduct different actions arising out of the same set of facts. Consider also that material pertaining to one set of proceedings may be of detriment to another related set of proceedings and present challenges to legal teams in terms of navigating the action over which they have conduct. Tensions or inconsistencies between parties to parallel proceedings can be exploited by an opponent and may lead to damaging concessions / findings. For this reason, there is a real need for close liaison between parties to parallel proceedings to ensure that any tactical decisions taken in one set of proceedings do not have an adverse impact on the other.