More on the Home Office v Harman implied undertaking in relation to litigation documents

In a case in which a company is a party, the company gives an implied undertaking to the Court to use documents obtained through litigation compulsion — discovery, subpoena, call for production, etc. — only for the purposes of the proceeding, at least until they come into the public domain, for example by being adduced …

Home Office v Harman: some law about its application to VCAT

This is a workmanlike little post, designed simply to trap into the world of this blog for when I need them next in court the legal principles discussed in Acting President Bowman’s decision in ZGW v Legal Services Board [2007] VCAT 1406, casenoted in the previous post. The parties’ arguments are also reproduced below in …

The ‘implied undertaking’ which is really a substantive legal obligation

Associate Justice Derham from time to time produces beautifully succinct and thorough summaries of the law, especially laws relating to procedure, in his careful judgments.  Busy practitioners are very grateful.  Here is his most recent such summary, from Fotopoulos v Commonwealth Bank of Australia [2017] VSC 61.  It is a helpful exposition of the substantive …

Release from implied undertaking for information relevant to criminal investigation

In Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd [No 2] [2009] WASC 207, Justice Beech released a party to litigation from the Harman v Home Office implied undertaking not to use documents obtained under the compulsions which are an incident of litigation for a purpose other than the litigation.  His Honour did so …

Restraints on use of information obtained by compulsion

The rule in Home Office v Harman governs the use of documents and information obtained by people generally by various forms of compulsion in litigation: the court rules about interrogatories (a form of statute), Court orders for discovery, witness statements served pursuant to an order to do so.  But when I carefully checked this point …

Beneficiaries, executors, trustees, and privilege

Update, 19 August 2009: See now also Gray v BNY Trust Company of Australia Limited (formerly Guardian Trust Australia Limited) [2009] NSWSC 789. Original post: In the last post, I mentioned that the claimant beneficiary was not allowed to see the solicitor’s file, despite having initiated a costs dispute with the executor’s solicitor. A recent …

The fidelity fund

Update, 26 August 2009: Justices of Appeal Buchanan and Neave agreed with Acting Justice of Appeal Kyrou in dismissing the punters’ appeal from Justice Pagone’s decision. See Vaughan v Legal Services Board [2009] VSCA 187. Original post: The fidelity fund is one of the areas of the legislation about lawyers I have never had much …

The obligation not to use documents obtained under compulsion except for the purpose compelled

Update, 21 August 2007: Latest case on the implied undertaking:  Street v Hearne [2007] NSWCA 113. When a person comes into possession of documents through legal compulsion, they are under an implied obligation not to use them for any purpose but the purpose for which the compulsion operates. Most lawyers know the rule insofar as …

Mr Howell releases Client from implied undertaking as to documents

Alessi’s Case is a long-running application to set aside a costs agreement commenced in the Legal Profession Tribunal in 2003. The Alessis succeeded in having their solicitor’s costs agreement cancelled and two bills set aside in [2005] VLPT 18. The latest decision — [2006] VCAT 149  is just a little one about an application by …