knowledge 21 May 2018 |

Discovery: Understanding the Importance of the Implied Undertaking and How it May be Varied

Documents and information which are discovered in litigation are subject to an implied undertaking that these will not be used other than for the purposes of the litigation concerned. In some cases, a court will require an express undertaking where it considers that greater precision is required regarding the use to which discovered information may be put. The law in Ireland is broadly similar to that of England and Wales. 

The undertaking is given to the court. Litigants must ensure that they fully understand their obligations here as breach of the undertaking will be contempt of court.  In Greencore Group plc v Murphy,¹  Keane J explained the rationale underpinning the undertaking:

“The order requiring the production of...documents is an invasion of the right of the person against whom the order is made to keep his documents to himself and it is for this reason that the Court will ensure that documents are not used for any purposes other than the purpose of the particular legal proceedings in which they are produced by making the order for production subject to that implied undertaking.”

However, the undertaking can be modified and regulated by the court. It may exercise its inherent jurisdiction to grant permission for the use of documents in another context where “special circumstances” exist to justify the release of the undertaking, whether in whole or in part. In addition, this release should not cause injustice to the person who made the discovery. The principles engaged are discretionary and the court will look at:

 “all of the circumstances, including, if necessary, the circumstances of the original disclosure, the nature and the strength of the evidence, the type of wrongdoing which is alleged to be involved and the interests of both the applicant and the party providing discovery as well as any public interest which may be involved.”²

The risk that confidentiality might be lost is also a relevant factor. 

The guiding principles will be the interests of justice and the court will balance in a proportionate way the competing interests of the parties. This is illustrated in the recent case of O'Connor v Commissioner of An Garda Síochána³ where these principles were applied. In that case, the plaintiff was a Garda informant who supplied information on drug trafficking. Following a conviction for drug offences in France, he brought proceedings against the State claiming damages for breach of an alleged agreement with the Gardaí that they would protect him from criminal prosecution in the State, or abroad. He obtained discovery in those Irish proceedings. Separately, the French authorities brought proceedings in England seeking his extradition under a European Arrest Warrant (“EAW”). He sought to be released from his implied undertaking attached to the documents discovered in the Irish proceedings, so that he could rely on these documents to resist the extradition application in England. The documents derived from internal documentation of the Department of Justice, the Department of Foreign Affairs, An Garda Síochána and from private consular communications.

Baker J. granted the application. First she considered whether the documents could be obtained by the English court or made available to it by any other means under the EAW procedure concluding that it was not safe for her to assume that this would be so. She emphasised that as the applicant’s liberty was at stake in the EAW proceedings, she would take a cautious approach to her analysis here. Balancing this against the respondents’ concerns regarding the sensitive nature of the documents, she directed that these should be released to the English court which might then give directions with regard to their dissemination and receive such undertakings and give such directions as it considered proper regarding the use of the documents.  Given the principles of mutual respect between the neighbouring jurisdictions, she declined to make directions or recommendations to the English Court. However, as English law in the area was broadly in line with Irish law she was satisfied that this would ensure sufficient safeguards.