Introduction
At Page Seager Lawyers, our practitioners specialise in insurance litigation and dispute resolution. We considered it timely to prepare this article for our clients regarding the Harman Undertaking, the consequences of breaching it and the pitfalls to avoid.
This article serves as a timely reminder for clients who are litigants to a dispute, or who are receiving any documents or information due to a dispute.
What is the Harman Undertaking?
The Harman Undertaking is a legal obligation which parties automatically owe to a court or tribunal when parties are receiving documents as part of a compulsory procedure in that court or tribunal.
In Tasmania, it is important to note that the Harman Undertaking is an obligation owed not only to courts (e.g. the Supreme Court), but also to the Tasmanian Civil and Administrative Tribunal (TASCAT).
Practical example
Parties A, B and C are part of a TASCAT proceeding.
For that TASCAT proceeding, Party A is obligated to provide a document to Party B. This document is, in turn, discovered to Party C (third party) as part of the TASCAT proceeding.
Parties B and C cannot use that document for any unrelated proceeding or purpose, unless TASCAT grants leave and releases Party B or Party C from the Harman Undertaking.
Why does it exist?
The purpose of the Harman Undertaking is to prevent litigants from using documents received from a compulsion of a court or tribunal rule or order for any collateral or ulterior purpose.
The Harman Undertaking recognises that the compulsory production of documents invades the privacy of the producing party, and the Harman Undertaking therefore constrains the receiving party from using the documents for any other reason.
Examples of collateral or ulterior purpose
- Using documents received in one proceeding for a separate and unrelated proceeding, despite it being between the same parties.
- Using documents to gain a competitive business advantage.
- Disclosing the documents to the media.
What documents are affected by the Harman Undertaking?
- Documents obtained through discovery (subpoena / summons / court order / directions by arbitrator).
- Witness statements, expert reports and affidavits produced in response to a court or tribunal order.
- Documents produced for taxation of costs.
- Copies of the above documents and information derived from them.
What if the Harman Undertaking is breached?
There may be serious consequences and penalties for breaching the Harman Undertaking, and they may vary due to the differing circumstances of each dispute.
Breaching the implied undertaking may include:
- The breach being punishable as a contempt of court.
- A claim based on documents obtained by a breach of the implied undertaking may be struck out.
Ignorance of the Harman undertaking is not a valid defence.
How do you extinguish the Harman Undertaking?
The Harman Undertaking has no effect if the document is received into evidence and referred to in open court. In this instance, the document will then be in the public domain.
Only the court or tribunal may release a party from the Harman Undertaking because the undertaking is to the court or tribunal, not to the producing party. Therefore, it is not sufficient to obtain clear and informed consent from the producing party.
Learning points
The Harman Undertaking extends not only to legal practitioners acting for their clients, but also to the parties to the dispute. As a result, it is wise to be cognisant of how documents or information have come into your possession before you propose to use the documents or information for any other reason.
When considering the use of documents or information, it is beneficial to err on the side of caution and seek legal advice so as to uphold the implied obligation given the risk of penalty.
More information
If you have any questions or would like further information regarding this article, please contact:
David Giacomantonio
Consultant
T: (03) 6235 5155
E: dgiacomantonio@pageseager.com.au
Fawwaz Aziz
Lawyer
T: (03) 6235 5175
E: faziz@pageseager.com.au
Published: 18 April 2024
