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Breach of undertaking as to confidentiality in discovery order had to be marked appropriately

By: Mark Tottenham BL

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Court of Appeal allows appeal from High Court, and sets aside an order for discovery in a claim against investment advisors, where the party seeking discovery had been guilty of a breach of a previous undertaking to the court of confidentiality concerning discovered documents, on the grounds that: (a) such a breach of undertaking had to be marked in a meaningful manner; and (b) the party providing discovery had to be protected from a litigious disadvantage.

Peart J (nem diss): Discovery - further discovery sought after amendment of pleadings - breach by plaintiff firm of undertaking as to confidentiality of documents in other proceedings - investment advisors - funds improperly invested - alleged secret profit - whether defendant acting as principal on sale of bonds - whether this disclosed to plaintiff - investigation into advisor's conduct - approach to breach by another party of its undertaking to the court.

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