Back to basics: The Harman undertaking

The course of legal proceedings often results in many documents being provided to the court, exchanged between the parties and otherwise coming into the possession of the parties.

It should be unsurprising that, when documents come into your possession within the context of legal proceedings, there are limitations regarding the use of those documents. Perhaps one of the most important obligations which applies is the Harman undertaking, otherwise known as the implied undertaking.

In accordance with the Harman undertaking, documents and information which you become privy to during legal proceedings can only be used for the purpose of those specific proceedings. This is an implied undertaking, so it is understood that by receiving the documents you are agreeing to this obligation. It not only binds you and other parties to the proceedings, but also any third parties who are properly given access to these documents.

When does the Harman undertaking apply?

The Harman undertaking applies to documents produced under compulsion, being a circumstance where a person or entity is legally required to produce the documents. This includes documents handed over during discovery or in response to a subpoena.

Once received, these documents and information cannot be used for any collateral or ulterior purpose. Things that include a collateral or ulterior purpose include:

• to initiate new legal proceedings;
• to gain a business advantage;
• to provide information to the media; or
• to provide information to any other external third party, unless expressly permitted, such as providing the material to an expert engaged within the proceedings.

Harman undertaking exceptions

There are certain circumstances where documents produced under compulsion will not be subject to the Harman undertaking. Those exceptions include:

• If any documents are received into evidence and relied upon in open court, such that the information becomes publicly available, the Harman undertaking will no longer apply.
• If you are required by law to disclose documents to a third party, the Harman undertaking will not prevent you from doing so. For instance, there may be a statutory provision that requires disclosure, or you may be involved in other legal proceedings subject to an order for discovery or inspection of documents.
• As the Harman undertaking is an obligation to the court, not to other parties to the proceedings, the court (and only the court) can grant permission to release a party from the obligation.

How can I be released from the Harman undertaking?

The court may exercise its discretion to release a party from the Harman undertaking so that they may use the information in other proceedings if they have a compelling reason to do so. This is a broad discretion and all the circumstances of the case must be considered, including:

• the nature of the document;
• how and why it was produced;
• the author’s viewpoint, including any prejudice they may have;
• whether the document was produced for the purpose of the current proceedings;
• whether it was expected that it would become publicly available;
• the nature of the information contained in the document, especially if it contains personal data or commercially sensitive information;
• how the applicant obtained it; and
• the likelihood of it contributing to justice in the other proceedings.

Does the Harman undertaking apply to affidavits?

During proceedings, parties will commonly submit affidavits, statements made under oath, in support of their position. The court has concluded that because such documents are not compelled by the court, they are unlikely to fall within the scope of the undertaking and may be available for use in other proceedings. Even where the court sets a timetable for when affidavits need to be produced, ultimately it remains within the party’s discretion as to whether they submit an affidavit at all, and if they do, what it says. As such, these documents are generally not subject to the Harman undertaking. This is especially the case if the affidavit is read in open court and forms part of the evidence in the proceedings.

A number of cases have considered this issue and even where the court has erred on the side of caution and found the Harman undertaking to be applicable, the court has subsequently released the party from the undertaking. This occurred in circumstances where the affidavit was voluntarily produced, there was an expectation that it would be used in open court, the proposed purpose of use was related to the proceedings and it involved the same parties.

However, in circumstances where the court compels a party to produce an affidavit for a specific purpose, the affidavit and any supporting material will generally be subject to the Harman undertaking. For example, affidavits as to a party’s financial position are often required as a result of freezing orders being made against them. Orders requiring the service of affidavits are usually to ascertain the whereabouts of certain assets and such orders are made with the implicit condition that the affidavit will be used exclusively for this purpose. In these circumstances it is unlikely that the court will release a party from the Harman undertaking to use the affidavit in other proceedings.

Breach of the undertaking

Parties in breach of the Harman undertaking may face serious consequences. You may be found in contempt of court, which could result in a fine, or even imprisonment. It could also mean that the relevant documents are struck out of the proceedings.

If there is any uncertainty about whether a particular action might constitute a breach of the Harman undertaking, or if you think you might have inadvertently breached the undertaking, it is important to seek legal advice. Macpherson Kelley’s Litigation and Dispute resolution team can advise you on issues surrounding the Harman undertaking, so please don’t hesitate to reach out to our lawyers.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.