Implied undertaking

In court proceedings, documents can be an essential way to prove your case.  In the digital age, there are more and more documents relating to almost every imaginable type of commercial dispute; some will be essential, some merely helpful while others may be harmful.  What happens when you want or need a document that you don’t have?

In England, there is a much wider regime requiring parties to disclose documents.  That is not the case in Scotland.  Here there is no requirement to hand over to another party any document you hold unless the court orders you to do so.  Courts will often order a party to produce documentation but there are strict limits on what must be produced.  Generally only documents which are specifically asked for by the other party and which are relevant to the facts in dispute have to be disclosed.

Once documents have been produced, there are strict limits on what the party receiving them can do with them. Indeed, a person who receives documentation through a court action cannot use it for any other purpose without permission from the court or consent of the party who produced the documentation. This is the implied undertaking and its main purpose is to encourage openness and fairness in legal proceedings. It also protects documents which contain personal information or anything that is commercially confidential.

There are severe consequences to a breach of the implied undertaking, including contempt of court. Accordingly, solicitors and the parties to court proceedings should be particularly careful about how documents obtained through a court action is used.

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The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any contained in this blog, please seek solicitor’s advice from Gilson Gray.