Rationales for the Witness Immunity Rule: Cassidy v Hawcroft (United Kingdom)
Cassidy v Hawcroft
COURT OF APPEAL (CIVIL DIVISION)
(Transcript: Smith Bernal)
HEARING-DATES: 27 JULY 2000
27 JULY 2000
J Cash for the Appellant; R Elliott for the Respondent
PANEL: MORRITT, MAY LJJ, FORBES J
JUDGMENTBY-1: MAY LJ
MAY LJ: 1. This is an appeal by the claimant, Michael Cassidy, with the permission of Aldous LJ, against the decision and order of HH Judge Swanson made on 23 December 1999 in the Kingston upon Hull County Court. The judge then heard and determined in the defendant’s favour a preliminary issue to the effect that Mr Cassidy was precluded from bringing his proceedings for slander and libel because they were brought in respect of and in reliance on a document and information contained in it which Mr Cassidy had obtained by discovery in other proceedings. The judge ordered Mr Cassidy’s action to be stayed and ordered him to pay Mr Hawcroft’s costs.
2. Mr Cassidy had an interest in land and property at Bursea Lodge Farm. In 1991, Receivers were appointed over this property. Eversheds were the solicitors who acted for the Receivers. In the summer of 1992, Mr Hawcroft’s solicitors were Taylor Broomer & Co. of Hull. In August 1992, the Receivers offered the properties for sale. In September 1992, they accepted, subject to contract, an offer by Mr Hawcroft for one lot of the land. By January 1993, contracts had not been exchanged.
3. On 25 January 1993, Mr Hawcroft’s solicitors wrote a letter to Eversheds. The letter is central to these proceedings and to this appeal. It included the following:
“Re: Hawcroft from Lloyds Bank plc
Lot 1 Bursea Lodge Farm
Our client recently attended at this office to express his strong reservations about proceeding to exchange of Contracts. His concerns stem from comments made by various local people. Rumours are circulating that Mr Cassidy intends to wreak vengeance upon those persons who, as he sees it, are acquiring his land at below market price and without his approval. Whilst we are not prepared to commit to paper any further details the end result is that our client fears for his own safety and that of his family and property.”
4. The receivership proceeded. Mr Cassidy took proceedings in the Leeds County Court and, on 13 April 1993, he applied without notice for an injunction to restrain the Receivers from disposing of any land at Bursea Lodge Farm. Mr Brian Horrocks, a partner in Eversheds, got to hear of this application. He attended the court and undertook on behalf of the Receivers not to sell any land until after a hearing of Mr Cassidy’s application on notice – as it happened, in the Bradford County Court – on 21 April 1993. For the purpose of that hearing, Mr Horrocks swore a long affidavit. In para 18 of that affidavit, Mr Horrocks said that the Receivers had tried to dispose of various lots in the face of obstruction by members of the Cassidy family. He understood that in consequence purchasers had been deterred from submitting offers or had submitted extremely low offers. He gave a reported example of aggressive remonstrations from both Mr and Mrs Cassidy in the presence of prospective purchasers. He then said:
“One prospective purchaser of Lot 2 has verbally informed the Receivers’ Agent that whilst he would be interested in purchasing Lot 2 and the farmhouse (with vacant possession) he was not prepared to proceed as long as Bernard Cassidy remained on site. My firm have received a letter (which in the circumstances I have chosen not to exhibit to this Affidavit): this letter was received by [sc. from] solicitors acting for an interested party in one of the lots and the following is a true extract from the said letter:
“[Our client’s] concerns stem from comments made by various local people. Rumours are circulating that Mr Cassidy intends to wreak vengeance upon those persons who, as he sees it, are acquiring his land at below market price and without his approval. Whilst we are not prepared to commit to paper any further details the end result is that our client fears for his own safety and that of his family and property.””
5. As may be seen, this was a direct reference to and quotation from the letter of 25 January 1993.
6. The hearing on 21 April 1993 took place in open court and the affidavit was used. Mr Cassidy’s application for an injunction was dismissed. By December 1993, these injunction proceedings were dormant but still in being. On 13 December 1993, Mr Cassidy obtained an order in those proceedings that:
“… the Defendants [the Receivers] do forthwith supply to the Plaintiff copies of the correspondence referred to in paragraph 18 of the Affidavit of Brian Julian Horrocks dated 20 April 1993”.
7. Mr Horrocks did not consent to that order but he did not feel able to oppose it in the light of the then CCR Ord 14 r 4, to which I shall refer later in this judgment. In consequence, Eversheds sent to Mr Cassidy a copy of Taylor Broomer & Co’s letter to them of 25 January 1993.
8. Mr Cassidy began the present proceedings by High Court writ dated 29 December 1995. He claimed against Mr Hawcroft damages for slander and libel. At that time, the normal statutory limitation period for bringing proceedings for defamation was 3 years. It has since been reduced to one year. The alleged slander was the spoken publication to his solicitors, Taylor Broomer & Co, of words which it is alleged were reported in the letter of 25 January 1993. The alleged libel was the publication of the letter itself by his solicitors. By his original defence, Mr Hawcroft admitted the occasion of the alleged slander and admitted that he had expressed certain concerns to his solicitor. He also admitted that his solicitors had written the letter of 25 January 1993 to Eversheds and quoted the allegedly defamatory words as being part of the letter. He served a true copy of the carbon of the letter with the defence. The defence also contained various defences to the substance of the claims.
9. At a later stage, Mr Hawcroft’s defence was amended. In its amended form, the substantive defences in summary included that the publication of the alleged slander was on an occasion of absolute privilege, alternatively of qualified privilege; that the publication of the alleged libel was on an occasion of qualified privilege; and that the publications did not refer to Michael Cassidy, but to his father Bernard Cassidy. There were other matters of substantive defence. The amended defence also pleaded that the proceedings for both libel and slander were an abuse of process because they were brought in reliance on a document and information in it – that is, the letter of 25 January 1993 – which Mr Cassidy had obtained by way of discovery in other proceedings. The particulars of that plea relied on the facts which I have related leading up to Mr Cassidy obtaining the letter from Eversheds by virtue of the court order of 13 December 1993. It was this issue which was the subject of the preliminary issue which Judge Swanson decided in favour of Mr Hawcroft.
10. The defendant’s contentions were and are that documents obtained on discovery are subject to an implied undertaking not to use them or the information contained in them for the purpose of proceedings other than those in which they were disclosed. This, it is submitted, applies to Mr Cassidy’s obtaining of the copy of the letter of 25 January 1993 which was an essential ingredient of his ability to bring the defamation proceedings. He could not have done so otherwise because the reference to the letter in para 18 of Mr Horrocks’ affidavit of 20 April 1993 did not identify some of the necessary basic ingredients of a defamation pleading – for example the identity of the publisher and the occasions of publication. The application of 13 December 1993 was itself an abuse because it was made in dormant proceedings with the ulterior motive, not of using the document in the proceedings in which it was to be produced, but for separate defamation proceedings. [Mr Cassidy challenges the contention that he did not have sufficient information apart from the letter to start the defamation proceedings, but, for reasons which will appear, it is not necessary to determine this part of the dispute.]
11. The judge rehearsed the defendant’s contention as being that there is a general rule that a party who discloses a document on discovery is entitled to the protection of the Court against any use of it otherwise than in the action in which it was disclosed. The document and the information in it obtained by the parties in the course of discovery are obtained subject to an implied undertaking not to use them for any purpose other than the proceedings in which they are compulsorily disclosed. If they are used for other proceedings, that is an abuse of process and a contempt of court. There will be no abuse or contempt if the court releases the person subject to the implied undertaking from it, but there was no such release in this case. Mr Horrocks did not voluntarily disclose the letter.
12. Mr Cassidy’s case relied on the former CCR Ord 14 r 8A, which was in identical terms to the former RSC Ord 24 r 14A, and which provided that:
“Any undertaking, whether express or implied not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open Court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.”
13. The reference to the letter of 25 January 1993 in Mr Horrocks’ affidavit of 20 April 1993 had, of course been before Mr Cassidy obtained a copy of it. But the essential contention was that, since the letter had been referred to in open court on 21 April 1993, Ord 14 r 8A operated so that any implied undertaking by Mr Cassidy ceased (or never came into existence).
14. The judge’s consideration of this issue concentrated on two strands of authority which it was not easy to reconcile. On the one hand were cases including Tejendrasingh v Christie  EMLR 152 (Drake J.); Tejendrasingh v Metsons  EMLR 597 (the same case in the Court of Appeal); Mahon v Rahn (unreported, Brooke J. 19.6.96); and Taylor v Director of Serious Fraud Office  2 AC 177,  4 All ER 801 (House of Lords) which favoured (or arguably favoured) a narrow ambit to the release from the undertaking effected if Ord 14 r 8A applied. On the other hand were cases including Derby v Weldon (No. 2) Browne-Wilkinson V-C, the Times 20 October 1988; Mahon v Rahn  QB 424,  3 All ER 687 (Court of Appeal); and Smith Kline Beecham v Connaught Laboratories  4 All ER 498,  FSR 1 which favoured the proposition that, once a document has been used and referred to in open court, it is a public document and no special undertaking continues. The judge decided that he was bound by Tejendrasungh v Metsons in the Court of Appeal. He had quoted and applied a passage from the judgment of Butler Sloss LJ in that case at page 602, where she said:
“… Quite clearly, rule 14A [the High Court version of the rule], which was brought into effect to get rid of what have been called the absurdities of the Harman v. The Home Office situation, is not to be used to enable a litigant who obtains documents in one set of proceedings to use them as the foundation for a wholly different, completely separate set of proceedings, as in this case, for defamation.
It is not, as I said, a matter of confidentiality; it is a matter of the undertakings. The scope of rule 14A does not, in my view, give the applicant the right to start quite different sets of proceedings relying upon these attendance notes.”
15. The judge further held that, even if Mr Cassidy was entitled to rely on the contents of the letters insofar as they were incorporated into the affidavit, the application for discovery, for the motives which the judge had found, was not a proper use of the process of the court and amounted to an abuse. The further use of the information, thus for the first time discovered, in an action for defamation amounted to a further abuse. The judge concluded that the action should be stayed for that reason also.
16. Mr Cassidy’s grounds of appeal seek to challenge certain of the judge’s findings of fact. It is only necessary to consider one of these, that is that Mr Horrocks did not disclose the letter voluntarily. On this point, Miss Cash’s submissions took what was for me at least an unexpected turn. It seems that the preliminary issue before the judge, at which Mr Cassidy was unrepresented, proceeded on the basis that his application on 13 December 1993 was an application for discovery; that the order made was one which compelled Mr Horrocks to disclose a document which he was not otherwise obliged to disclose; that the receipt of the letter by Mr Cassidy was therefore subject to the usual implied undertaking; and that the issue was that which depended on Ord 14 r 8A. Miss Cash pointed out to us, however, that the order of 13 December 1993 was not an order for discovery, but an order for the production for inspection of a document referred to in an affidavit. It was an application (as Mr Horrocks had acknowledged in an affidavit) under CCR Ord 14 r 4. This provided:
“(1) Any party to an action or matter shall be entitled at any time to serve on any other party in whose pleadings, affidavits or witness statements reference is made to any document a notice requiring him to produce it for the inspection of the party giving the notice and to permit him to take copies thereof.
(2) The party on whom a notice is served under paragraph (1) shall, within 4 days after service, serve on the party giving the notice a notice stating a time within 7 days after service thereof after which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds.”
17. Thus is was not an application for discovery, but an application for production for inspection to which Mr Cassidy was entitled under the rule and to which Mr Horrocks offered no opposition because he rightly appreciated that there was no proper ground for doing so. The relevant disclosure, that is in the affidavit, was voluntary. Mr Cassidy was entitled to production. There was no implied undertaking and no fetter on the use of the document to which Mr Cassidy was in law entitled.
18. There is in my judgment no answer to this submission. Mr Elliott struggled to make submissions to the contrary. He submitted that, under the rules, inspection of documents and production of them are the same. Mr Horrocks, who is not the defendant in these proceedings, did not take objection, but he might have done so. The provision of the document was a form of discovery and part of a compulsory process which carried with it an implied undertaking. Mr Horrocks made clear that he was not exhibiting the document and only referred to it in part. Mr Cassidy only secured the document in its entirety by reason of a compulsory court order. The implied undertaking arose from the form of the rule and Mr Horrocks’ ability to object, although he did not in fact do so. Mr Elliott had to concede that, if Mr Horrocks’ affidavit had referred to the whole of the relevant part of the letter, that would have been for relevant purposes a complete voluntary disclosure of the letter to which no implied undertaking could attach. In my view, the fact that he only referred to and quoted part of it makes no difference. The disclosure was voluntary – and for good measure in open court – and Mr Cassidy was entitled to production for inspection. There was no implied undertaking and the basis on which the issue proceeded before the judge was to this extent erroneous, largely because Mr Cassidy was not represented. This conclusion accords with a passage in the judgment of Hobhouse J. in Prudential Assurance v Fountain Page  3 All ER 878,  1 WLR 756 at 767H of the latter report. Hobhouse J. was there considering the categories of case discussed by Browne-Wilkinson V-C in Derby v Weldon (No. 2) in these terms:
“With regard to the third category of documents that he had to consider, that is to say documents which a party was required to produce because they had been referred to in a voluntary affidavit, the Vice-Chancellor said that the source of the obligation to produce those documents was the voluntary affidavit and that therefore the subsequent order of the court was merely the recognition of an obligation which the party had already voluntarily accepted. Such documents were subject to no relevant restriction.”
19. Thus in my judgment these proceedings were not an abuse as being brought in reliance on the letter of 25 January 1993 in breach of any implied undertaking.
20. Mr Elliott nevertheless submitted that the judge was right to conclude that the proceedings were an abuse for the more general reason that Mr Cassidy’s acquisition of the document in proceedings which were dormant was founded on an improper motive and that the court should recognise this by staying the proceedings. Even if Mr Cassidy was entitled to production of the document, that did not mean that his use of it was not an abuse. Mr Elliott submitted that there is abuse where the court’s procedure is not used as it is intended, but misused for an ulterior purpose. The defamation claim was dependent on the information in Mr Horrocks affidavit, which Mr Elliott accepted was available for unrestricted use, but also on the sight of and physical possession of the entire letter. Mr Cassidy’s case that he had sufficient information to start the proceedings without the letter is not credible and the judge rejected it. His purpose in acquiring the letter itself was palpable. Mr Horrocks was trying to protect his source. He did not produce it voluntarily. The injunction proceedings were moribund. The court has a discretion to control in the public interest the use of documents produced as a result of its process. The procedures of the court should not be misused and, although Mr Hawcroft had no standing in the injunction proceedings to prevent the use of a document which was not his, the court should seek to avoid unnecessary invasion of privacy and confidentiality and to avoid the spawning of parasitical litigation of a disproportionate nature. Looking at Mr Cassidy’s case in the round, it has little merit and it is wholly consistent with the overriding objective of the Civil Procedure Rules that it should be stayed.
21. It may turn out that it was indeed a great pity that the defendant chose to take a procedural abuse point as a preliminary issue, rather than concentrating on the substantive merits of his defence. But the present abuse submission cannot, in my judgment, properly extend beyond questions relating to the acquisition of the letter of 25 January 1993. As to that, I assume for the purpose of this judgment that Mr Cassidy may well have wanted and needed the letter, as the judge found, to be enabled to start these proceedings. I should emphasise that this is an assumption only, since Mr Cassidy has appealed against that finding, but it is not in my view necessary to determine that part of his appeal. Upon that assumption, he was nevertheless entitled to its production and I do not see how it can be an abuse to obtain production of a document to which he was entitled, which had been voluntarily disclosed by Mr Horrocks to whom it belonged and whose production he did not oppose. The abuse submission is further, in my view, untenable in the light of the admissions made in the defence, to which I have referred, which would have entitled Mr Cassidy to production of the letter in these proceedings, if a copy of the carbon had not already been served with the defence itself. The proposition that proceedings are an abuse because they depend on a letter which the defendant has admitted and himself served with his defence is one which, in the circumstances of this case, in my view, has no force.
22. For these reasons I would allow this appeal.
JUDGMENTBY-2: FORBES J
FORBES J: 23. I agree.
JUDGMENTBY-3: MORRITT LJ
MORRITT LJ: 24. I also agree.
Appeal allowed with costs.
Peter Carter-Ruck & Partners; Gosschalks