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Cite as: [2011] EWHC 1566 (QB)

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Neutral Citation Number: [2011] EWHC 1566 (QB)
Case No: HQ11X00308

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
21/06/2011

B e f o r e :

THE HONOURABLE MR JUSTICE TUGENDHAT
____________________

Between:
(1) THE COMMISSIONER OF POLICE OF THE METROPOLIS (2) THE SERIOUS ORGANISED CRIME AGENCY
Claimants
- and -

(1) TIMES NEWSPAPERS LIMITED (2) MICHAEL GILLARD
Defendants

____________________

William McCormick QC and Iain Daniels (instructed by MPS/SOCA) for the Claimants
Gavin Millar QC and Anthony Hudson (instructed by Simons Muirhead & Burton) for the Defendants
Hearing dates: 15 June 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Tugendhat:

  1. The claimants claim an injunction to restrain a breach of confidence by the defendants ("the publishers"), and other relief. The claim relates to leaked information, derived from the claimants, which was referred to by the publishers in a publication. The subject of the information has sued TNL for libel. TNL wishes to rely on the information it has already obtained from the claimants for the purpose of pleading a defence in the libel action. It also seeks disclosure of further documents for the same purpose.
  2. THE HISTORY OF THE PROCEEDINGS

  3. The proceedings started with an application by the claimants for an interim injunction. I granted an injunction to prohibit the disclosure of information which they allege to be confidential. The claimants then served their Claim Form and Particulars of Claim. The publishers served their Defence. After that the publishers applied for a variation of the injunction which I refused to grant. The claimants then served their Reply. The parties exchanged disclosure statements. After that the publishers made a request for further information of the Reply. They were not satisfied by the answers.
  4. The publishers now apply for orders that the claimants answer certain requests for further information (the RFI point) and that they give certain further disclosure (the disclosure point).
  5. THE RIGHTS AND OBLIGATIONS OF THE PARTIES

  6. There is no dispute that the claimants have obligations under the Human Rights Act 1998, and under other statutes, to keep confidential certain types of information. Being arms of the state, they have no rights of their own (such as an individual may have), but only those rights that are necessary for them to carry out their obligations.
  7. The types of information in question, and the reasons why such information cannot normally be disclosed, are most commonly discussed in the context of public interest immunity. That immunity has the effect that law enforcement agencies are not obliged to disclose certain kinds of information in the course of criminal or other proceedings. But if there has already been a disclosure, or there is a threatened disclosure, of such information, as is the case here, then the same principles give to law enforcement agencies a right to ask the court to make orders prohibiting the disclosure, or further disclosure, of such information.
  8. It is similarly not in dispute that publishers enjoy the right to freedom of expression under Art 10. In addition to the right to freedom of expression, there is no dispute that TNL has a right to a fair trial of the libel proceedings. And public authorities (which include the claimants and the court) have a positive obligation to give effect to those rights.
  9. The central issue in the present dispute is the extent to which the obligations of the claimants (which in turn give rise to their rights to protect certain information from disclosure) are to prevail over, or are to be subordinated to, the rights of the publishers both to freedom of expression, and to a fair trial of the libel action.
  10. The claimants allege that the confidential information and documents were disclosed unlawfully by one or more officers or civilian employees, and that the publishers, having received those documents or that information, knew that they were confidential.
  11. The publishers have declined to disclose the source from which they obtained the documents and information in question. The publishers do not admit the allegation that the publishers received information disclosed to them in breach of confidence.
  12. The publishers plead in their Defence that such information as they received was properly and lawfully received either in the course of legitimate news gathering activities or investigative journalism on matters of public interest or for the purposes of defending the libel proceedings. They will use such material to the extent permitted by the court. They will resist any order for disclosure of their sources.
  13. The meaning complained of by the claimant in the libel action is that he is guilty of very serious criminal offences committed by himself and others whom he organises. TNL has served a Defence pleading justification and Reynolds privilege ( [1999] UKHL 45 ) or public interest. TNL issued an application against the claimants and other law enforcement agencies, as non-parties to the libel action, for disclosure under CPR 31.17. The application was opposed by the claimants, but the court has not been asked to hear and determine it.
  14. The libel claimant applied to strike out the defence of justification for want of particularity. In the course of a hearing of that application, TNL accepted that the Defence as then formulated should be amended. At that stage the Defence did not rely upon the information alleged by the claimants to be confidential. TNL later produced a draft which did use or disclose such information, and sent it to the claimants for their consideration before sending it to the libel claimant. Shortly before this TNL has sent to the claimants copies of documents which it intended to rely upon in support of its application for non-party disclosure. It was that which precipitated the application by the claimants for an injunction. The result is that the draft amended Defence has not be shown to the libel claimant, and those proceedings have not progressed further.
  15. It is the publishers' case in this action that TNL are entitled by Art 10 to use the documents and information the subject of this action in its defence of the libel action.
  16. THE RFI POINT

  17. In support of their Art 10 argument the publishers plead in their Defence that the publication complained of in the libel action was of public interest because the subject (the libel claimant) was the head of an organised crime group who had not been brought to justice, and was seeking to benefit financially from business dealings described in the publication.
  18. In the Reply the claimants did not admit or deny that allegation. What they did plead was that the publication did not allege any failure on the part of the law enforcement agencies. That is correct. And likewise, the Defence of the publishers in this action does not raise any allegation of any failure of law enforcement agencies.
  19. The fact that the claimants had not pleaded to the allegation set out in para 14 above gave rise to a request for further information from the publishers. This was also discussed in correspondence.
  20. By the end of Mr McCormick's submissions the position of the claimants had been clarified as follows. Both agencies admitted that the libel claimant is the head of an organised crime group. The first claimant admits that he was seeking to benefit financially from the business deals referred to in the Defence.
  21. Mr Millar was content with those responses.
  22. THE DISCLOSURE POINT

  23. In the Reply, the claimants pleaded that the publishers have available to them ample material (other than the subject of this claim) with which to defend the libel action, including material mentioned or alluded to in certain witness statements of the publishers, and material that is available to them on properly formulated applications for third party disclosure. The claimants added that the proper formulation of such applications does not require the use of any confidential materials.
  24. The publishers applied for an order that the claimants give disclosure of four categories of documents. The first three categories related to whether the libel claimant was the head of an organised crime group, the claimants' state of knowledge as to that fact, and whether the libel claimant had attempted to benefit financially from the business deal pleaded in the Defence. It is accepted that no disclosure on these matters is now required, following the resolution of the RFI point.
  25. The fourth category of documents, which is still pursued, is those documents which the claimants would disclose to TNL if TNL made what the claimants refer to as a properly formulated application for third party disclosure. The publishers submit that the claimants must give disclosure of those documents (other than the ones which the publishers already have) which the claimants, by their Reply, assert (or accept) would provide TNL with reasonable prospects of defending the libel. Mr Millar submits that what the claimants have pleaded in the Reply amounts to a statement of fact that they have such documents that they would be bound to disclose on what they refer to as a properly formulated application for third party disclosure.
  26. The claimants submit that they do not have to give disclosure as now sought by the publishers.
  27. There are four witness statements for the claimants. The first two related documents which have already been disclosed to the publishers (in breach of confidence, on the claimants' case).
  28. The other two statements are addressed to all four of the categories of documents that were sought in the application notice. It is not possible to separate out the parts of the witness statements that relate only to the fourth category which is now in issue. General points are made. It is said that TNL ought first to draft a defence without using the information alleged to be confidential, and then pursue its rights to disclosure of documents from the libel claimant and by means of applications for disclosure against third parties (including against the claimants). It is said that the task of complying with a disclosure obligation is very substantial, given the size of the organisations concerned. It is said that it is not in the public interest that there should come to the attention of the libel claimant information which he would not otherwise be entitled to know before the institution of criminal proceedings against him (assuming that such proceedings are to be instituted). Each document would have to be considered for the purposes of redaction, so as not to disclose information which would reveal covert methods or tactics, which would pose a risk to the life or safety of any person, which might identify a sensitive source, or which might assist a criminal organisation in furtherance of its suspected criminal activities. A disclosure exercise would require significant resources and these resources would be diverted from the business of the agencies which is law enforcement, and that this diversion would be contrary to the public interest. In any event, if the exercise were to be undertaken, it could not be completed in time for the trial presently fixed later in the term.
  29. In the course of argument I sought clarification from Mr McCormick of what was meant by that part of the Reply referred to above. Following an adjournment for him to take instructions he applied for leave to delete what was pleaded and to substitute:
  30. "[the publishers] may not rely on any prejudice that may be alleged on [TNL's] Defence of the libel action without first seeking to defend that action using such materials (other than confidential material) as are already available to it, or as may become available to it, including on disclosure from [the libel claimant] or on a third party disclosure application".
  31. Mr McCormick stated that this formulation was not to be taken as a statement that there are no documents that would be disclosed on a third party disclosure application. What may be disclosable on a third party disclosure application cannot be ascertained until the libel action is further advanced.
  32. Mr Millar did not object to this proposed amendment. But he said that it did not resolve the substantive issue. That is whether the claimants should disclose now in these proceedings any material which they say would be disclosable by them on a third party disclosure application. It is more efficient and consistent with the overriding objective that the claimants should disclose the documents now sought in this action at this stage than that the publishers should have to proceed with the libel action and only return to the claimants after it has failed to obtain all the documents which it needs and to which it claims to be entitled. Moreover, if TNL is not entitled to continue with the libel action using the allegedly confidential documents and information already in its possession, TNL will most probably have to instruct new lawyers, who would advise it on the basis only of information which does not come from those documents.
  33. CPR 31.17 (Orders for disclosure against a person not a party) includes the following:
  34. "(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
    (2) The application must be supported by evidence.
    (3) The court may make an order under this rule only where
    (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
    (b) disclosure is necessary in order to dispose fairly of the claim or to save costs".

    DISCUSSION

  35. In my judgment, as matters stand today, it is not possible for the court to be satisfied that disclosure of any documents which are the subject of this action is necessary in order to dispose fairly of the libel claim, as would be required by CPR 31.17(3)(b).
  36. It follows that if I were to order the claimants to give the disclosure sought by the publishers, I would be doing so in circumstances where I would not grant the same relief in an application under CPR 31.17. The claimants ought not to be required to disclose documents for use in the libel action simply because the claimants have brought the present proceedings. As Mr McCormick submits, it is not yet known what defence the publishers can plead in the libel action without using the disputed documents, and it is not yet known how the libel claimant would respond to any defence that may be served. The libel claimant will have disclosure obligations, and anything disclosed by him will not need to be disclosed by the claimants in this action. If he fails to make the disclosure that he is required to make, he may not be able to pursue the claim for libel.
  37. The only good reason for ordering disclosure in the present proceedings is if that disclosure ought to be given by the claimant in compliance with the requirements of standard disclosure in these proceedings.
  38. As it seems to me, the central point raised in the publishers' Defence to these proceedings is in para 10:
  39. "The common law and ECHR Arts 6 and 10 protect the [publishers'] right to rely upon relevant admissible evidence in the libel proceedings in pursuit of its said defences"
  40. The right to a fair trial is an unqualified right, but what is or is not a fair trial depends on the circumstances. Art 10 is a qualified right. Restrictions to freedom of expression may be permitted, if necessary and proportionate:
  41. "in the interests of public safety, for the prevention of disorder or crime, ... for preventing the disclosure of information received in confidence, ..."
  42. The claimants are seeking to protect the rights of individuals (under Arts 2 and 8), such as informants and potential witnesses, as well as their own rights to confidence, and they are seeking to ensure public safety, and to prevent crime.
  43. The decision whether the Art 10 rights of the publishers prevail in these circumstances must be the product of the balancing exercise by the court described by Lord Steyn in Re S [2004] UKHL 47. It is an exercise that has to be carried out having regard to the specific facts of the case. It cannot be carried out on the information about the libel action at present available to the court. If a number of documents were to be disclosed by the claimants now, it is impossible to see how the court could decide by looking at them whether the publishers' Art 10 rights required that those documents be deployed by the publishers in the libel action.
  44. I do not accept that what the claimants have pleaded in the original Reply, or in the amendment, is properly to be understood as a statement of fact (although the fact that it was so pleaded understandably gave rise to that impression in the minds of the publishers' advisers). It is an argument of law.
  45. I see the force of Mr Millar's submission that it is inconvenient for the publishers to have to proceed with the libel action without using the disputed documents, and make the application under CPR31.17 only at a later stage. But in my judgment they must do that if the court is to be in a position to balance the rights of the publishers with the Convention rights of individuals, and the other matters provided in Art 10(2). Further, the inconvenience to the publishers does not seem to me to outweigh the inconvenience to the claimants and the public if the resources of the claimants are diverted to the disclosure exercise that would be required if I were to make an order as sought.
  46. For these reasons I will not order the disclosure sought by the publishers at this stage.


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