Uncovering lesser-known aspects of the Harmen undertaking
Beyond the fundamental understanding of the Harman undertaking, there are lesser-known facets that legal practitioners should be aware of:
- Consent orders: The Harman undertaking extends to affidavits and witness statements served pursuant to court orders, including routine timetable directions, even if consented to by both parties. The crucial factor is that production occurs under the compulsion of a court order.
- Third-party involvement: The Harman undertaking applies not only to parties directly involved in litigation but also to third parties, including witnesses, experts, and litigation funders who possess documents originating from legal proceedings.
- Arbitration and tribunal proceedings: This obligation also extends to arbitration proceedings, where parties produce information and documents on the arbitrator’s directive. It is similarly applicable to tribunal proceedings.
- Diverse breach scenarios: Breach of the Harman undertaking can occur in a broad range of circumstances, including inadvertent violations. Any use of disclosed documents that “promotes some private interest not within the parameters of the action which brought about their disclosure” constitutes a breach. This encompasses using documents beyond establishing an obligation, employing them in subsequent or separate proceedings, or simply sharing them with external third parties.
- Consequences and exceptions: Typically, a party in breach of the Harman undertaking is not permitted to continue with their case until the contempt is purged. However, exceptions exist, particularly concerning matters of defence, subsequent cases involving the same parties, and other specific scenarios.
Best practices for legal practitioners
Seeking further guidance
In situations where legal practitioners require assistance in advising on when the Harman undertaking ceases or need guidance on applying to the court for a release or purging contempt, seeking the counsel of experienced legal professionals well-versed in this area is advisable. The rules governing the termination of the obligation can be intricate, necessitating a nuanced approach.
Comprehending and adhering to the Harman undertaking is of paramount importance for legal practitioners. It not only upholds the ethical standards of the legal profession but also ensures the integrity of the legal process. By remaining well-informed and diligently following these guidelines, legal practitioners can adeptly navigate the complexities of the Harman undertaking, thereby avoiding potential pitfalls in their cases and effectively representing their clients.
This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.
Last updated: 28 September 2023 Article by: Halil Gokler