- Retrospective permission when there has been unauthorised collateral use of a disclosed document (ECU Group PLC v HSBC Bank)
- What are the practical implications of this case?
- What was the background
- What did the court decide?
- Communications with UK and US authorities
- Communications with US attorneys
- Case details:
Dispute Resolution analysis: This High Court decision provides a succinct overview of the law concerning the ‘use’ of disclosed documents, focusing on CPR 31.22(1) and determining when it is just or appropriate for retrospective permission to be granted for such use. The case emphasises that it is not suitable for retrospective permission to be granted simply because it would have been granted prospectively and in fact, it is not necessary that prospective permission would have been given at all. Mr Justice Andrew Baker determined that retrospective permission was appropriate in instances where the collateral use was unintentional and the purpose for which the disclosed documents were used was a permitted purpose, holding that two out of the three retrospective permissions sought should be granted. As a result of all the circumstances of the case (including failing prospective permissions), ECU was ordered to pay HSBC’s costs on the indemnity basis. Written by Matthew Purcell, partner and head of dispute resolution at Saunders Law.
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