Colbeck v Ferguson & Another

Reference: 24/01/2002

Court: Queen's Bench Division

Judge: Sir Ian Kennedy

Date of judgment: 24 Jan 2002


Malicious falsehood - Employment Law - Separate proceedings - Documents read in open court - Disclosure - Basis of claim


In separate employment proceedings, five memoranda written by the second Defendant had been read out in court. The Claimant based an action in malicious falsehood on these documents.

The District Judge held that the fact that the documents were read in open court did not mean that the Claimant could use them as a basis for an action in malicious falsehood.


Whether documents read in open court could found an action in malicious falsehood


The court followed Eady J in Ruddy v Mercury Personal Communications Ltd (Unreported, 31/7/2000) in preferring the authority of Mahon v Rahn [1997] 3 All ER 687 to that of Singh v Christie & Ors [1995] EMLR 579 in holding that the documents could found such an action.


After some period of uncertainty, it is now clear that once the implied undertaking has been released by documents being read or referred to in open court, the documents can be used for any purpose including subsequent litigation brought on their contents.