Hinduja v Hinduja & Ors

Summary

The issue in this case was crisply summarised by Bacon J in the opening paragraph: “[t]his hearing concerns the latest development in a long-running family feud between members of the Hinduja family. The issue before the court is whether documents disclosed into the Court of Protection proceedings concerning the late Srichand Parmanand Hinduja (SP) should now be permitted to be used in other actual or contemplated proceedings, and if so on what terms.”

Much of the decision is concerned with (necessary) micro-analysis of specific documents / classes of documents and whether they were covered by specific orders and /or legal privilege.  However, of wider relevance is Bacon J’s analysis of two issues that arise relatively often in Court of Protection proceedings: (1) the principles that apply where a party seeks to release / vary the confidentiality restrictions imposed in those proceedings; and (2) what (if any) used can be made by a party of documents disclosed into Court of Protection proceedings for other purposes (so-called ‘collateral use’ of documents).

As to the first issue, Bacon J reviewed the case-law, including the recent decision of the Court of Appeal in Gardner, and held that they

53. […] indicate that where one or other party to proceedings in the Court of Protection seeks to release or vary the confidentiality restrictions imposed in those proceedings, including after the death of the person the subject of the proceedings, the following general principles will apply:

1. i) The court will need to consider on a case-by-case basis the justification for disclosure of the relevant documents, and it will be for the person seeking disclosure to justify their request.

1. ii) The question to be asked is whether the specific interest in disclosure outweighs the ongoing interest in the protection of the confidentiality of personal and sensitive information contained within documents filed or disclosed in the Court of Protection proceedings, given the sensitive context in which those documents were provided, and the legitimate expectations of confidentiality on the part of all those involved in the proceedings.

iii) If disclosure is granted, it should be limited to what is essential to achieve the particular objectives justifying disclosure.

As to the second issue, that of collateral use, Bacon J noted the similarities between COPR 5.10 and the equivalent provision (CPR 31.22) in the Civil Procedure Rules, and (at paragraph57) the “well-established” principles in the latter governing the circumstances in which permission will be given by the court under CPR r. 31.22(1)(b) for collateral use, such as use in other proceedings. In particular:

31. i) The court will only grant permission under CPR r. 31.22(1)(b) if there are special circumstances that constitute a cogent reason for permitting collateral use: Tchenguiz v SFO, §66(i). The grant of permission is exceptional, in the sense that it is not routinely given: Duke of Sussex v MGN[2023] EWHC 1617 (Ch), §6.

53. ii) The burden is on the party making the application to demonstrate cogent and persuasive reasons for allowing the collateral use sought: Lakatamia v Su, §53. That burden is a particularly heavy one where the permission is sought by or for the benefit of a person who is not a party to the action in which the documents were disclosed: ACL Netherlands v Lynch[2019] EWHC 249 (Ch), §30.

iii) The court must also be satisfied that there is no unwarranted prejudice to the disclosing party. That means prejudice beyond the mere fact that the documents are able to be used for collateral purposes. Ultimately the court must balance the legitimate interests of the party seeking permission against the legitimate interests of the disclosing party: Duke of Sussex, §§6–7.

31. iv) What constitutes “use” of a document for the purposes of CPR r. 31.22 is very broad, and is regarded as extending to reviewing the documents for the purposes of considering whether they are relevant to other proceedings. Accordingly, absent some provision in the relevant order, doing anything other than realising, in the course of review for the purposes of the proceedings in which documents are disclosed, that a document or documents would be relevant to actual or contemplated other proceedings, may constitute a collateral use: Tchenguiz v Grant Thornton[2017] EWHC 310 (Comm), [2017] 1 WLR 2908, §§29–31; Lakatamia v Su, §§57, 59(i).

1. v) The appropriate course is therefore a two-stage approach. First, as soon as it is identified that there may be documents relevant to actual or contemplated other proceedings, the relevant party should seek permission to review those documents in order to determine whether it is desirable to use them in those other proceedings. Secondly, once that review has taken place, the relevant party can seek permission to deploy those documents in the other proceedings: Lakatamia v Su, §59(ii)–(iii).

Bacon J held at paragraph 58 that the principles set out should apply for applications for permission under the equivalent provision in COPR 5.10(1)(b).  At paragraph 59, she also endorsed the observations of the leading textbook on disclosure that applications for permission:

“ought to specify clearly the documents in respect of which permission is sought and similar care should be taken in drawing up any order, listing the documents by way of schedule in appropriate cases so there can be no doubt which documents are covered. In general, it is inappropriate to seek a release in respect of disclosed documents wholesale, not least because the court needs to carry out a balancing exercise and it is only in special circumstances that the restriction or undertaking is to be modified.”

Such that:

60. In general, therefore, a blanket application for permission in respect of an entire set of documents is unlikely to be appropriate; rather the application should normally be made by reference to specific documents, in order to demonstrate why the circumstances are such as to justify the use of those documents for the collateral purpose sought. A targeted approach is, moreover, likely to be particularly important in Court of Protection proceedings in light of the particular context in which documents have been disclosed in those proceedings, as discussed above.

One observation about privilege is relevant, namely Bacon J’s endorsement of the common ground of the parties that “the Court of Protection’s ability to waive privilege on SP’s behalf came to an end when SP died, and that any request for further waiver of privilege must now be made to SP’s personal representatives, whoever they are” (paragraph 63).

Comment

The Court of Appeal in Gardner invited the Court of Protection Rules Committee to consider the issues of practice and procedure arising out of the provision (strictly, not the disclosure) of position statements to observers of proceedings.  This case makes clear that the observations in Gardner are of wider relevance in terms of reaffirming the core proposition that Court of Protection proceedings attract a (necessary) degree of confidentiality, and that any lessening of that confidentiality needs to be accompanied by suitable safeguards.