The Harman Obligation: Practitioners’ Duties and Risk Management

The Harman obligation—often referred to as the "Harman undertaking"—is a fundamental rule of practice in Australian litigation. It imposes a substantive legal obligation on parties, their legal representatives, and others who receive documents or information through compulsory court processes, restricting the use of such material to the proceedings in which it was obtained. Breach of this obligation can have serious professional and legal consequences, including contempt of court and disciplinary action.

This blog provides an overview of the Harman obligation, its scope, and practical guidance for legal practitioners in New South Wales.

The Legal Foundation

The Harman obligation derives its name from the English House of Lords decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and was followed by the High Court of Australia in Hearne v Street (2008) 235 CLR 125. The principle is now entrenched in Australian law and reinforced by court rules, including Rule 21.7 of the Uniform Civil Procedure Rules 2005 (NSW).

The High Court in Hearne v Street stated at [96]:

"Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given, unless it is received into evidence."

Scope of the Obligation

What Is Covered?

The Harman obligation applies to a wide range of material, including:

• Documents produced on discovery
• Answers to interrogatories
• Documents produced under subpoena
• Documents produced for taxation of costs
• Documents produced pursuant to an arbitrator’s direction
• Documents seized under Anton Piller orders
• Witness statements and affidavits served pursuant to judicial direction.

The obligation extends not only to the documents themselves but also to copies, information derived from them, and even information retained in the mind of a person who has read them.

Who Is Bound?

The obligation binds:

• Parties to the litigation
• Their legal representatives (including solicitors and barristers)
• Experts, witnesses, litigation funders, and any third party who knows the material was obtained through compulsory court process.

Duration and Exceptions

The obligation persists unless:

• The document or information is read or referred to in open court or admitted into evidence (at which point it enters the public domain)
• The court grants leave to use the material for another purpose.

Breach and Consequences

A breach of the Harman obligation is a breach of an obligation to the court, not to the producing party. Consequences may include:

• Contempt of court proceedings
• Adverse costs orders
• Disciplinary action for unsatisfactory professional conduct or professional misconduct for legal practitioners
• Potential claims for damages or regulatory complaints.

Ignorance of the obligation is not a defence. The courts treat breaches seriously, particularly where there is evidence of wilful disregard or an attempt to gain a forensic advantage.

Seeking Release from the Obligation

Only the court can release a party from the Harman obligation. Consent from the producing party is not sufficient. To obtain a release, an application must be made to the court, demonstrating "special circumstances". Relevant factors include:

• The nature and sensitivity of the document or information
• The circumstances of its creation and production
• The purpose for which release is sought (e.g., public interest, regulatory complaint)
• The likely contribution to achieving justice in the subsequent proceeding.

Recent cases (e.g., Johnston v Allen [2024] NSWSC 187) confirm that the bar for "special circumstances" is not unduly high, but the process must be followed, and the application should be made in advance of any use.

Practical Guidance for Practitioners

1. Identify Covered Material

• Always ascertain the provenance of documents received in litigation.
• Assume the Harman obligation applies to any material obtained through compulsory court process unless clearly read in open court.

2. Warn Clients and Third Parties

• Clearly advise clients and any other witnesses (including experts engaged for the purpose of providing reports or opinion) of the Harman obligation when providing them with documents or information.
• Document this advice in writing (e.g., covering email or file note).

3. Implement Internal Controls

• Maintain procedures to track the source and permitted use of documents.
• Restrict access to covered material within your firm to those involved in the relevant proceedings.
• Advise all staff that have access to covered material of the Harman obligation.

4. Seek Leave Before Use

• If you wish to use covered material for another purpose (e.g., a regulatory complaint, related litigation), seek the court’s leave in advance.
• Do not rely on the consent of the producing party.

5. Remedying a Breach

• If a breach occurs, act promptly: notify the court, provide a full explanation, and even consider offering a formal apology to any parties affected as well as to the Court.
• Consider applying for retrospective release, but do not assume it will be granted.

6. Stay Informed

• Keep abreast of developments in the law and relevant practice notes (e.g., Practice Note SC Gen 23 on the use of generative AI, which expressly prohibits entering Harman-protected material into AI tools without leave).

Conclusion

The Harman obligation is a cornerstone of litigation practice, designed to protect the integrity of the court process and the privacy of parties compelled to disclose information. Practitioners must be vigilant in identifying, managing, and advising on the use of such material. Failure to do so exposes both the practitioner and their client to significant risk.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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