British Sky Broadcasting Group plc and another v Virgin Media Communications Ltd (formerly NTL Communications Ltd) and others [2008] EWCA Civ 612, [2008] All ER (D) 57 (Jun)
It is desirable that a litigant should be free to instruct the lawyer of his choice. This is particularly true if the lawyer is already acting for the client and the client wishes the lawyer to continue to act in a related manner. It is usually enough to rely upon the recognition by a solicitor of the duty not to make any ulterior use of information obtained by disclosure.
The court rejected counsel’s submission that the duty not to make ulterior use of disclosed documents is identical to the obligation of confidentiality that exists between a solicitor and his own client. The difference is that in the former case the court can give permission for the use of a disclosed document for a purpose other than the action in which it was disclosed. It is not correct to say that if discovery discloses that the defendant has caused the claimant an injury other than that in respect of which the action has been brought, it will never be appropriate for the court to permit the claimant to seek redress in respect of it.
