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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Clarke v Guardian News and Media Ltd [2025] EWHC 222 (KB) (05 February 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/222.html Cite as: [2025] WLR(D) 79, [2025] EWHC 222 (KB), [2025] 1 WLR 2304, [2025] WLR 2304 |
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KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NOEL ANTHONY CLARKE |
Claimant |
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- and - |
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GUARDIAN NEWS AND MEDIA LIMITED |
Defendant |
____________________
Gavin Millar KC, Alexandra Marzec and Ben Gallop (instructed by Wiggin LLP) for the Defendant
Hearing dates: 29 January 2025
____________________
Crown Copyright ©
Mrs Justice Steyn DBE :
Introduction
"there are strong grounds to believe that the Claimant is a serial abuser of women, that he has, over 15 years, used his power to prey on and harass and sometimes bully female colleagues, that he has engaged in unwanted sexual contact, kissing, touching or groping, sexually inappropriate behaviour and comments, and professional misconduct, taking and sharing explicit pictures and videos without consent, including secretly filming a young actor's naked audition."
History of the proceedings
The Strike Out Application
The law
"The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order."
"As soon as litigation is contemplated, the parties' legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business."
"ii) For a communication to be subject to litigation privilege it must have been made with the dominant purpose of being used in aid of or obtaining legal advice from a lawyer about actual or anticipated litigation: Thanki, The Law of Privilege (2nd ed) ('Thanki') paras 6.68ff and the cases there cited.
iii) Where litigation has not been commenced at the time of the communication it has to be 'reasonably in prospect'; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility: United States of America v Philip Morris & British American Tobacco [2004] EWCA Civ 330 at pars 67-68; Westminster International v Dornoch Ltd [2009] EWCA Civ 1323 at paras [19]-[20] (Etherton LJ)."
"There is, however a distinction to be drawn between those which were destroyed or disposed of before these proceedings were commenced and those which were destroyed or disposed of thereafter. With regard to the former category it is established in the very recent decision of the Court of Appeal for the State of Victoria in British American Tobacco Australia Services Ltd v Cowell and McCabe [2002] VSCA 197, paras [173] and [175] that the criterion for the Court's intervention of the type sought on this application is whether that destruction or disposal amounts to an attempt to pervert the course of justice. There being no English authority on this point I propose to apply that principle, not only because the decision of the Court of Appeal for the State of Victoria is persuasive authority but because I respectfully consider it to be right."
"12-05 … Where destruction is in issue, it is important to consider when the destruction occurred, because it is not every destruction of documents which can be regarded as wrongdoing. … Everyone deletes, and thus potentially destroys, electronic documents all the time. A failure to retain the contents of overlarge mailboxes may occur without any nefarious intent. …
B. Litigation not in Reasonable Contemplation
12-06 Until litigation is in reasonable contemplation, there is no reason to do anything other than in the normal course of business. …
C. Litigation in Reasonable Contemplation
12.07 … CPR r.3.4(2)(c) provides for a power to strike out where there is a failure to comply with a practice direction. So it might in theory be possible to apply to strike out based on breach of CPR PD 31B para.7 … But unless the mental element of perversion of the course of justice is proved, how would the court exercise a power to strike out which can only be exercised where it considers the destruction would lead to a trial that was unfair? At the relevant time the proceedings have not even been started, let alone the issues crystallised.
In Australia the Victoria Court of Appeal considered this issue in Cowell. The court concluded that prior to the commencement of proceedings there was no general duty to preserve documents such as could be relied upon in support of an application to strike out the claim or defence. The only circumstances in which the court was entitled to grant any sanction was where the conduct amounted to an attempt to pervert the course of justice or (in the unlikely circumstances that such a remedy was available) contempt. The question of adverse inferences was not raised and the court did not deal with it.
The Victorian Court of Appeal contemplated that where document destruction prior to the commencement of proceedings constitutes a perversion of the course of justice, proved to the civil standard of proof, the court has power to strike out the subsequent claim or defence. It did not discuss the nature of the prejudice which would need to be shown to the other party before perversion of the course of justice would give rise to a strike out, but at least in England the court would only have power to prevent access to the court in this way if satisfied that a fair trial was in consequence not possible. …"
It is suggested that the position prior to the commencement of proceedings is therefore as follows:
(a) The court will not strike out a claim unless the document destruction amounts to perversion of the course of justice and the court determines that this has prevented a fair trial from being possible.
…" (Emphasis added.)
"The Court of Appeal said that in all the circumstances it was not fair either to the respondents or to other litigants for the trial to continue. A decision to stop the trial was not for the purpose of punishment but in response to the party's own continuing attempts to compromise a fair trial which would make a decision in his favour unsafe. Although the Court of Appeal emphasised the basis for the decision was whether the trial could be fair, dicta went somewhat further. Chadwick LJ said that:
'a litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.'
… In Dadourian Group [[2009] 1 Lloyd's Rep 601 at [233]] Arden LJ said about the passage from Chadwick LJ:
'We consider that this paragraph is not to be read as meaning that a litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial is to be taken to have forfeited his right to a fair trial in every case. Chadwick LJ is careful to emphasise that the litigant's conduct had put the fairness of the trial in jeopardy and that the court's power to strike out the proceedings was not a penalty for disobedience with the rules.'
If Chadwick LJ's dictum was read in any other way, it would be difficult to reconcile with ECHR art.6 rights of access to the court and the remedy of strike out would not be proportionate. So the court must always consider whether a fair trial is still possible. If so, it must not strike out the action or defence. The purpose of the remedy is not to punish, however deplorable the conduct of the defaulting party may be. The court must bear in mind that what it is being asked to do is to take away the access of the defaulting party to the court, which is a draconian remedy. The court must act in a manner which is proportionate. …" (Emphasis added.)
"It is well established that 'cogent evidence is required to justify a finding of fraud or other discreditable conduct': per Moore-Bick LJ in Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261 at para 73. This principle reflects the court's conventional perception that it is generally not likely that people will engage in such conduct: 'where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger', per Rix LJ in Markel v Higgins, [2009] EWCA Civ 790 at para 50. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow's Will Trusts, [1964] 1 WLR 415, 455 (cited by Lord Nicholls in In re H, [1996] AC 563 at p.586H), 'The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it'. …
The principle requires flexibility in its application because it depends upon the improbability of the specific allegation that is made and the particular circumstances of the case. … Thus in the Jafari-Fini case at para 49, Carnwath LJ recognised an obvious qualification to the application of the principle, and said, 'Unless it is dealing with known fraudsters, the court should start from a strong presumption that the innocent explanation is more likely to be correct.'"
Application to the facts
(1) "Can you have a listen and just be really sure there's nothing in there that his QCs will use against us. Err on the side of caution on disclosing as much as possible that undermines our case."
(14:46; "Last Day")
"The first sentence of the message is an instruction to verify that the relevant audio-file does not contain anything which is unfavourable to the Defendant. The second sentence follows directly from the first. In its natural and ordinary meaning, the second sentence directs the message's recipient to be careful when disclosing as much as possible, lest it undermines the Defendant's case in legal proceedings."
"1 page out of 24 pages of the 'Last Day' thread was not disclosed. This firm has identified through the tagging of the document on the disclosure platform that the document was coded such that it was intended to be disclosed. Presumably through manual error, a sub-tag related to privilege had been simultaneously checked which led to the document being automatically but erroneously excluded from the disclosure pool when the document production was prepared. The Defendant's e-disclosure provider had carried out extensive quality control checks to identify and correct any inadvertently conflicting tagging and it appears that this page was an anomaly."
"This needs to be considered in light of the incriminating nature of the message. In what manner this relevant and incriminating evidence could somehow be 'inadvertently omitted' by the Defendant's extensive internal team and large legal team is plainly questionable."
In their oral submissions, counsel for the claimant submitted that the omission could not be "innocent".
(2) "Can we all clear all of our Signal messages please? Delete this entire thread. I'll create a new one, which will likely be disclosable in court, [sic]"
To which Ms Stewart and Ms Osborne both replied "yep".
(14:54; "Last Day")
(3) "Final thread. We can delete all previous ones."
(14:55; first message on "Final" thread.)
(4) "Can we delete all these threads and use Final thread from now on"
(15:11; last message on "Last Day" thread.)
(5) "Also please delete all Signal threads, including this one and individual one on one discusisns w'eve had, or you've had with each other [sic]"
(17:43; "Final")
(6) Sirin Kale: "Should we ask survivors to delete their histories with us? Or are they not usable in court?"
Paul Lewis: "No"
Paul Lewis: "Don't ask them to delete anything"
Sirin Kale: "ok"
Paul Lewis: "But deletet his connvo just noow [sic]"
Sirin Kale: "Ok"
(17:44-17.45; "Final")
"Mr Lewis's usual approach in respect of Signal messages was to set them to auto-delete, as he explains in his statement. Messages sent in threads after auto-delete had been enabled were automatically erased either 1 day or 1 week after they were sent (depending on which auto-delete setting was chosen). 4 threads relevant to the investigation had auto-delete enabled shortly after they were created; these were called 'Noel Clarke', 'Conference', 'Clarke aftermath', and 'Nc' (the 'Auto-deleted Threads'). With respect to the Auto-deleted Threads, the only messages which were preserved beyond 1 day or 1 week (as applicable) were those few which had been sent at the start of the thread, before the auto-delete function was enabled."
i) The 'Noel Clarke' thread was created on 7 April 2021 and, the same day, after a few messages had been exchanged, Mr Lewis set the disappearing message time to 1 day. The thread remained in use until about 28 April 2021 (Lewis 2, para 35(a)).
ii) The 'Conference' thread was created by Mr Lewis on 7 May 2021 and, the same day, after a few messages had been exchanged, he set the disappearing message time to 1 week.
iii) The 'Clarke aftermath' thread was created by Ms Osborne on 1 June 2021 and, the same day, after a few messages had been exchanged, Mr Lewis set the disappearing message time to 1 week.
iv) The 'Nc' thread was created by Ms Stewart on 28 May 2022 to share an interview with the claimant published in the Mail on Sunday. Mr Lewis set messages to auto-delete after 1 day (Lewis 2, para 35(f)).
"the practice at GNM, and I believe at other media organisations, is for the legal department to issue a notice often called a 'litigation hold' to the editorial staff when it is clear that a legal claim is contemplated. This alerts the staff to the need to retain all documents that are or might be disclosable under the CPR. Until such litigation hold is issued, the practice to encourage staff to review, and where they feel appropriate delete, any non-essential investigation documents remains.
In the case of the investigation that led to the publication of a series of articles about the Claimant, I did not send a litigation hold at the pre-publication stage because I did not consider litigation was reasonably in contemplation at the time. I believe that I was correct not to do so."
(Phillips 1, paras 15-16).
"GNM's Editorial Legal function issued preservation notices in respect of this case after we received a letter before action from Mr Clarke's then-solicitors on 12 August 2022."
"just standard generic wording that lawyers like to include in their pre-publication letters. I did not regard its use in this instance as being any more indicative of the likelihood of litigation, let alone that litigation was reasonably contemplated, than in any other instance where it was used. Not least because, at this point in time, nothing had actually been published, and unless and until something was published, there was never anything for proceedings to bite on. Any legal action is going to be entirely contingent on whether, and if so what, is published. Taken at its highest the use of such language in legal correspondence might be taken to indicate the future possibility of legal action."
"I have always understood that the point at which I should take steps to preserve relevant materials in anticipation of legal proceedings is when I receive a preservation notice, or 'litigation hold', from my legal department. The date on which I intended these messages to be deleted was 16 months before the Claimant sent a letter before claim to the Guardian, which is the point at which my legal department sent me a litigation hold notice."
(Lewis 2, para 45 and 50. Counsel for the claimant queried the reference to a 16-month period, but it is obvious that it is a reference to the letter before claim of 12 August 2022.)
"If anything, the language about the Claimant's rights being reserved was less threatening, and less specific than that which I had read in pre-publication letters from law firms in the preceding months and years.
In none of these cases did the legal threats contained in law firm letters I had read up until that point result in their clients issuing proceedings against us after we published articles. And none of these threatening letters prompted my legal department to issue me with a document preservation notice, which I have always understood to be the point at which I should take steps to preserve relevant materials in anticipation of legal proceedings."
Conclusion