The Harman undertaking: know your obligations and stay out of harm’s way
The Harman undertaking is a longstanding rule in legal practice which applies to all litigating parties in all Australian courts and tribunals. This article explores the importance of the undertaking, and how to avoid the significant consequences that may arise from a breach of the undertaking.
The Harman undertaking is an implied undertaking to the court that documents obtained as a result of the compulsory processes of the court will only be used for the purposes for which they were disclosed and will not be used for a collateral or ulterior purpose. The implied undertaking originally derived it’s name from the English case of Harman v Secretary of State for Home Department  1 AC 280.
It was more recently, however, expressed by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 as a substantive and implied obligation. In this case, the court held that:
‘Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.’
The purpose of the implied undertaking
The main objectives of the implied undertaking are to:
(a) encourage full and frank disclosure between parties for the purposes of proper litigation;
(b) acknowledge that the compulsion to produce material in a proceeding can violate a party’s right to confidentiality;
(c) protect a party’s confidentiality in such circumstances; and
(d) in light of the above factors, strike an appropriate balance between the need to protect a party’s confidentiality and the compulsory nature of court processes.
The key features of the implied undertaking are that:
(a) it binds the parties to a proceeding, and extends to any third party who receives documents the subject of the undertaking including witnesses, experts and non-party funders;
(b) only the court can release a party from their implied undertaking, even if the other party has given clear and informed consent to the use of the document;
(c) it extends to all Australian courts and tribunals;
(d) it attaches to various types of documents and information (discussed further below); and
(e) there may be serious consequences for parties that breach the implied undertaking including it being punishable as a contempt of court, and in some circumstances, a claim based on documents obtained by breach of obligation may be struck out.
The implied undertaking applies to a number of documents.
Those documents can include, for example (and this list is not exhaustive), documents inspected after disclosure, answers to interrogatories, statements obtained from witnesses, documents produced on subpoena, documents seized pursuant to an Anton Piller order, documents produced pursuant to a court order or direction and affidavits.
It is important to note that the obligation extends to copies of those documents and information derived from these documents.
How to determine if the implied undertaking applies
To determine whether the Harman undertaking applies there are two questions to consider:
(1) was the document produced within the compulsory process of the court;
(2) was the document read or referred to in open court; and
Assuming the answer to the first question is yes, the implied undertaking will arise except if it was read or referred to in open Court. There may be uncertainty, in certain circumstances, as to whether a document has been read or referred to in open court.
Examples of breach
Some examples of when a breach of the implied undertaking might occur includes:
(a) using the documents or information from one proceeding to progress a different proceeding, even if the parties and causes of action are the same;
(b) using the documents or information to add a new claim to existing proceedings that is fundamentally different to that already pleaded;
(c) providing documents to the media;
(d) using documents in the conduct of businesses or other activities so as to gain a competitive advantage; and
(e) providing documents to an external third party.
Can you be released from the implied undertaking to the Court?
A party can be released from the implied undertaking, but it requires the Court exercising its discretion and leave being granted to be released.
To obtain release from the implied undertaking, an application must be made in the court or tribunal to which an obligation is owed within the relevant proceedings.
Granting a release is a matter of judicial discretion and the court is required to consider whether special circumstances exist to justify a release including:
(a) the nature of a document and the information contained it;
(b) the circumstances under which a document came into existence;
(c) whether the document existed prior to the litigation;
(d) how the applicant obtained the document;
(e) the likely contribution of the document to achieve justice in any separate proceeding;
(f) whether any separate proceeding is between identical parties; and
(g) the broader public interest.
It is important to note that releasing the obligation created by the implied undertaking is not easy and the court will seek to ensure that the privacy and confidentiality of a party are not invaded more than absolutely necessary to achieve justice.
Important reminder for litigating parties
The Harman undertaking is a simple, yet powerful, undertaking to the court that is often misunderstood by parties that are not familiar with litigation processes.
In the current climate, where digital innovation is at the forefront and court processes are evolving rapidly as a result, the Harman undertaking remains a traditional pillar which requires parties to responsibly handle documents obtained during the course of court proceedings.
If you are currently a party to a court proceeding, or intend to commence court action, we can provide tailored advice on how the Harman undertaking might affect your conduct in the proceeding and mitigate any associated risks.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.