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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bingham v Martin & Ors [2001] EWCA Civ 1453 (22 August 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1453.html Cite as: [2001] EWCA Civ 1453

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE HART)

		Royal Courts of Justice Strand London WC2 Wednesday 22 August 2001

1. LORD JUSTICE ROBERT WALKER: This was to have been an application by Mr Andrew Bingham, acting in person, seeking permission to appeal, an extension of time for appealing and a stay on enforcement of an order for costs which had been summarily assessed on an indemnity basis.
2. Mr Bingham applied for an adjournment. His application was refused by Master Venne on 17 August 2001 (last Friday). He has again applied for an adjournment by fax sent this morning. I see no reason to alter Master Venne's decision not to grant an adjournment. In those circumstances, having read the papers and having concluded that his application his quite hopeless, I intend to give my reasons for that view.
3. Mr Bingham wished to appeal from an order of Hart J made on 14 March 2001 in the Chancery Division of the High Court. Hart J dismissed his application for committal for contempt of court of no fewer than eight individuals: two barristers, two solicitors, one solicitor's clerk and three litigants who were clients of the two solicitors' firms involved. The contempt of court alleged was disclosure, or knowing involvement in disclosure, of documents said to be subject to an implied undertaking to the court not to use them for any purpose other than those of litigation in which the documents were obtained.
4. There are two relevant pieces of litigation in which Mr Bingham was the claimant. One was an action in the Central London County Court with the designated number CL721039 ("the London case"). The defendant in the London case was Mrs Veronica Pieters and the subject matter was the beneficial ownership of her former residence, a flat at 182 Sutherland Avenue, London, W9. The other action was an action in the Tunbridge Wells County Court ("the Kent case"). Its designated number was TW002664. The defendants were Mr Norman Carter and his wife, Mrs Sheila Carter. The subject matter was a charge on their residence, a house called Brentwood, Vigo Road, Fairseat, Kent, the charge being in favour of a company apparently controlled by Mr Bingham.
5. The London case was heard by His Honour Judge Cotran over several days in September 2000. Mr Bingham has various complaints about the conduct of those proceedings, but those complaints are not relevant to the present application. On 3 November Judge Cotran dismissed Mr Bingham's claim in the London case and ordered him to make an interim payment of costs of £15,000 to Mrs Pieters.
6. Miss Elspeth Talbot-Rice of counsel appeared for Mrs Pieters instructed by Mr Michael Martin of Brook Martin, a firm of solicitors practising at York Street, London, W1. Mr Martin, Miss Talbot-Rice and Mrs Pieters were the first, second and third defendants respectively to the application to commit. Meanwhile the Kent case was pending against Mr and Mrs Carter.
7. On 23 October 2000 there was an interim hearing in the Tunbridge Wells County Court at which Mr and Mrs Carter were represented by Mr Shantandu Majumdar of counsel, instructed by Mr D J W Fisher, a solicitor who is a sole practitioner at Borough Green, Kent. Mr Fisher's firm was represented on that occasion by a solicitor's clerk, Mr Benjamin Tubb. There were discussions at that hearing about a settlement.
8. Mr Fisher, Mr Tubb, Mr Majumdar and Mr and Mrs Carter are the fourth, fifth, sixth, seventh and eighth defendants respectively to the application to commit for contempt of court. Mr Martin learned, and it is not clear how, about the Kent case and he contacted Mr Fisher. When a settlement of the Kent case seemed in prospect, with a payment to be made by Mr and Mrs Carter to Mr Bingham in settlement of his claim, Mr Martin evidently thought it would be a good idea to obtain a garnishee order as rapidly as possible after the payment to Mr Bingham, especially as the amount of the payment was, whether by coincidence or otherwise I do not know, to be the sum of £15,000.
9. It is questionable whether Mr Martin would still regard this as a good idea. It seems to have led to further expensive litigation which is still continuing. However, the essential issue is not whether it was a wise plan for any of the eight defendants (so far as they knew anything about it - and there is credible evidence that Mr Majumdar at least had nothing to do with the plan). The issue is whether it is reasonably arguable that it involved a contempt of the Tunbridge Wells County Court by disclosure of the documents relating to the Kent case. Hart J held that there could be no contempt of court because none of the documents in question was subject to any implied undertaking. He dismissed the application on that preliminary point and awarded indemnity costs against Mr Bingham.
10. The documents are described in Mr Bingham's application notice as:

"(a) The Minute of Order of the proposed terms of the Settlement dated 4th December 2000 in the Carter proceedings [the Kent case].

(b) Without Prejudice correspondence between the Claimant's Solicitors WAG Davidson & Co and D Fisher & Co, the Fourth and Fifth Defendants' firm of Solicitors.

(c) Details of the Claimant's Solicitors' Client Account, including Bank and Client Account number."

11. The judge identified the without prejudice correspondence as two manuscript letters dated 25 and 29 November 2000, written by Mr Bingham, one expressly and the other impliedly written without prejudice. The client account details were set out in a further without prejudice letter dated 4 December 2000 from WAG Davidson and Co of Acton, London, W3, a firm which came on the record for Mr Bingham in the Kent case at the last moment having previously, it seems, advised Mr Bingham off the record. The letter of 4 December also enclosed draft minutes of order settling the Kent case for £15,000 with no order as to costs.
12. A litigant, or a litigant's lawyer, who obtains the other side's documents on disclosure under Part 31 of the Civil Procedure Rules, formerly the process of discovery under Order 24 of the Rules of the Supreme Court, is subject to an obligation not to use those documents for any purpose other than the proceedings in which they are produced. That is now provided for in CPR Part 31.22. Previously it depended on an implied undertaking to the court. The rationale was stated by Lord Diplock in the well-known case of Home Office v Harman [1983] 1 AC 280 at p300:

"The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court."

13. The principle is limited to documents produced under compulsion, including the practical compulsion of having to produce privileged documents for the purposes of assessment, formerly taxation, of costs if a successful party wishes to obtain a certificate of assessed costs (see Bourns Inc v Raychem Corp [1999] 3 AER 154, pp 169-170). It does not apply to documents which one side voluntarily sends to the other in the course of litigation. As Hobhouse J said in Prudential Assurance v Fountain Page [1991] 1 WLR 757, p765:

"....it is clear that there is no blanket restriction on the use of documents and information acquired in the course of litigation. Prima facie there is no restriction. The compulsion exception is confined to documents and information which a party is compelled, without any choice, to disclose."

14. That was the ground on which Hart J dismissed Mr Bingham's application. He said towards the end of his judgment:

"It is quite plain that the documents relied on in this case came into existence and into the possession of the representatives of the Carters and thence, to the extent that they did, into the possession of those representing Miss Pieters, in quite different circumstances. It seems to me the highest it can be put, and I think that this was the way in which Mr Bingham was striving to put it in the course of his argument, was that the documents, or some of them, were documents to which an obligation of confidence attached. I infer that that is really what Mr Bingham was seeking to argue from the way in which he framed the final sentence of paragraph 14 of his application and from the fact that he sought to take me to passages in the Bournes Inc v Raychem decision which deal with the question of privilege and waiver of privilege as opposed to the question of the implied undertaking as [to] user."

15. Nothing in Mr Bingham's appellant's notice has led me to have any doubt as to the soundness of the judge's decision. I share the judge's evident feeling that the disclosure, at least of details of the solicitor's clients' account, may possibly or arguably have amounted to a breach of confidence and to a breach of professional obligations. However, that is very far from saying that it amounted to a contempt of court punishable by committal to prison.
16. It appears to me that an appeal would be hopeless. I would, therefore, dismiss the application for permission to appeal and the other applications fall away.
Order: Applications refused.