Briscoe Mitchell v Hodder & Stoughton Ltd & Anr, Associated Newspapers Limited (non-party)
Reference:  EWHC 2852 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 21 Nov 2008
Summary: Defamation action – Witness summons – Non-party disclosure – CPR 31.17
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Jonathan Barnes (Respondent)
Instructing Solicitors: Russell Jones & Walker for the Defendants/Applicants; Reynolds Porter Chamberlain for Associated Newspapers Limited, the non-party Respondent
The claimant sued her daughter and her daughter’s publishers over the contents of a book written by her daughter about her upbringing in the 1960s and 1970s. When it was published in 2006, the book was serialised by the Mail on Sunday and that newspaper and its sister newspaper the Daily Mail (both newspapers being owned by Associated Newspapers Limited) ran articles reporting reactions to the book expressed in interview with journalists by various of the claimant’s other children. The defendants issued a witness summons against a lawyer employed by the newspaper group to produce all documentary records and recordings of the interviews. They then revised their application to one for non-party disclosure.
Whether the newspaper group as a non-party to the action should be ordered to produce the interview notes and other materials sought.
The witness summons would be set aside and the application for non-party disclosure refused. The defendants had not demonstrated that the materials sought were sufficiently relevant to the issues in the underlying libel action to justify a disclosure order against a non-party. But even if it were assumed that the materials could cross the threshold of assisting one or other of the parties’ cases, the defendants had failed to establish that non-party disclosure was necessary in the circumstances.
Further, and as a matter of the court’s residual discretion, the application would be refused since there is at least some element of confidentiality in what an interviewee says to a journalist which remains in the journalist’s notes but is not ultimately published. The court is required to proceed with added caution on an application for non-party disclosure in relation to communications with a journalist.
This short judgment will provide some assurance to journalists and editors that their relationship with interviewees is recognised by the courts ordinarily as involving a notion of confidentiality, and that will only be overridden with caution in circumstances where the media is made the subject of an application for non-party disclosure in civil litigation.