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The Harman undertaking: navigating legal obligations to avoid pitfalls

Harman undertaking

The Harman undertaking: navigating legal obligations to avoid pitfalls

The legal landscape is a complex terrain, often fraught with hidden traps and obligations that can catch even the most diligent legal practitioners unaware. One such obligation, known as the Harman undertaking, is a crucial but frequently misunderstood aspect of legal proceedings in many jurisdictions. In this article, we will delve into the complexities of the Harman undertaking, its historical origins, its scope, and the far-reaching implications it holds for legal practitioners.


Understanding the Harman undertaking

At its core, the Harman undertaking revolves around the use of disclosed documents or information in the context of litigation. It is founded on the principle that parties involved in legal proceedings must adhere to specific rules and ethical standards. When one party is compelled, either through a court rule, court order, or other legal means, to disclose documents or information, the party receiving this material is restricted from using it for any purpose other than its intended purpose, unless it is formally introduced as evidence in the case.

The Harman undertaking, which has been solidified as a substantive obligation, not merely an implied understanding, was thoroughly examined in the case of Hearne v Street (2008) 235 CLR 125. In this landmark judgment, Justices Hayne, Heydon, and Crennan of the High Court of Australia emphasised the significance and scope of the Harman undertaking.


Key insights into the Harman undertaking

Before delving deeper into the intricacies of the Harman undertaking, here are some key takeaways:

  1. Origins and terminology: The Harman undertaking is commonly referred to as such, originating from the case Harman v Secretary of State for the Home Department [1983] 1 AC 280. This obligation is now viewed as a substantive legal requirement, rather than a mere implied undertaking.
  2. Comprehensive coverage: The Harman undertaking applies to a wide array of documents, including copies of those documents and information derived from them. These encompass documents inspected post-discovery, answers to interrogatories, documents produced in response to subpoenas, documents generated for the purposes of cost taxation, documents produced under an arbitrator’s directive, documents seized under an Anton Piller order, witness statements following judicial directives and affidavits. Fotopoulos v Commonwealth Bank [2017] VSC 461 [32]-[33]
  3. Court-centric obligation: Importantly, the Harman undertaking is an obligation to the court, not to the party producing the documents. Only the court possesses the authority to release a party from their Harman undertaking, even if the opposing party has provided clear and informed consent for the document’s use. Hamersley Iron Pty Ltd v Lovell (1988) 19 WAR 316, 321
  4. Contempt of court: Breaching the Harman undertaking carries serious consequences, including being held in contempt of court. Penalties for such breaches can vary significantly based on the specific circumstances.
  5. No ignorance defense: Ignorance of the Harman undertaking is not a valid defence. However, it may be considered when determining the appropriate penalty.


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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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

To effectively navigate the complexities of the Harman undertaking and safeguard their clients’ interests, legal practitioners can adopt the following best practices:

  1. Prior to commencing a case: Thoroughly scrutinise the origins of your clients’ documents, checking for any sourced from previous proceedings. Evaluate the Harman status of these documents.
  2. During litigation: Incorporate a standard ‘Harman warning’ in all communications with your client when providing them with documents, statements, affidavits, reports, or subpoenaed material. Maintain meticulous records of document usage during court proceedings.
  3. Before case conclusion: Engage in consultations with your client regarding their intended use of documents from the case and apprise them of the potential necessity to file a Harman application.
  4. Reviewing past cases: Revisit prior cases with your clients to assess how they utilised documents and information. Offer to review their case files to identify any Harman-related issues.


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.

Need assistance with your commercial matter? Contact us on 03 8590 8390 for a 20 minute free consultation with one of our experienced Melbourne lawyers.

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

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