15 On the question of retrospective leave, his Honour referred to a number of relevant decisions including that of Rimer J in Miller v Scorey [1996] 1 WLR 1122. His Honour then stated at [95] that he considered the fact that there had been a breach of the implied obligation to be "a matter of significant concern" and one "not to be excused lightly". These are remarks which we fully endorse.
16 However, in deciding to make the orders sought by Fortytwo and Bluefreeway his Honour took into account three additional matters. First, his Honour found that if Fortytwo and Bluefreeway had made an application for leave prior to using the documents for the purpose of commencing the 2018 proceeding then it was likely that such leave would have been granted. Secondly, his Honour found that Barnes and Hawksley could not point to any prejudice which would be suffered by them as a consequence of Fortytwo and Bluefreeway using the documents produced in the 651 proceeding. Thirdly, his Honour found that it must have been apparent, or should have been apparent, to Barnes' and Hawksley's legal advisers in January 2009, when the application and statement of claim filed in the 2018 proceeding were served, that the documents in question had been used in the way that Barnes and Hawksley later complained.
17 So far as the first of his Honour's findings is concerned, in our opinion it was plainly open. It was submitted by Barnes and Hawksley that for a judge to grant leave to use the documents in question for the purpose of enabling proceedings to be commenced against them would necessarily involve an impermissible exercise of power. Particular reliance was placed by Barnes and Hawksley upon the fact that they were not parties to the 651 proceeding. Reliance was also placed upon the nature of the causes of action relied upon in the 2018 proceeding in that the copyright claim was said to be analogous to a defamation claim of the kind brought by the plaintiff in Riddick. However, we are not persuaded that it would not have been open to a judge to give leave in such circumstances. The discretion to grant leave is a broad one.
18 On the question of prejudice, we understand his Honour to have found that Barnes and Hawksley could not point to any prejudice beyond that experienced by any litigant against whom a proceeding has been commenced based upon documents he or she was required to produce in another proceeding. Of course, there may be cases where the prejudice suffered is greater than that. Miller v Scorey [1996] 1 WLR 1122 was a case in which application was made to strike out a proceeding (the 1995 action)commenced using documents obtained on discovery in an earlier proceeding. Rimer J said at 1133:
If, in principle, I considered it just to allow the plaintiffs to use the discovered documents for the purposes of a separate action raising the same claims as the 1995 action, then, absent any special considerations pointing in a different direction, there would in my view be much to be said for declining to strike out that action and for giving leave to the plaintiffs to make use of the documents for its further prosecution. Such an order would, no doubt, amount to a de facto validation of what had happened to date, although the court could perhaps reflect its disapproval of that by the making of appropriate costs orders. The alternative course would be to strike the action out, with the usual orders as to costs, but to give leave to the plaintiffs to start a new like action. The latter course is one which would no doubt visit a greater penalty on them and it may be that, in appropriate cases, it would be the right type of order to make. In the circumstances of the present case, however, I would, in principle, subject to the special consideration to which I shall come, favour the former alternative, which would be likely to achieve both an overall saving of costs and the prospect of an earlier trial of a proper claim.