Flood v Times Newspapers Ltd (Third Party Disclosure)
Reference:  EWHC 411 (QB);  EMLR 18
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 5 Mar 2009
Summary: Defamation - Libel - Third-party Disclosure Order - CPR Part 31.17 - Classes of document - Likely to support a party's case - Confidentiality/privacy interests of third parties mentioned in the documents - Necessity for disclosure order - Discretion
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Instructing Solicitors: Edwin Coe for the Claimant; Alastair Brett for the Defendant; MPS Solicitors for the Met; IPCC Legal Department for the IPCC; Carter-Ruck for Mr Berezovsky
The Claimant brought a libel action over an article in The Times. The Defendant sought to defend the article on the basis of (a) justification of a Chase Level 3 meaning; and (b) Reynolds qualified privilege. An Amended Defence had been served making changes to both defences, but no Amended Reply had been served. The Defendant issued applications for third party disclosure against the Independent Police Complaints Commission (IPCC) and the Metropolitan Police (Met). The IPCC consented to an order for third party disclosure in September 2008. Included within the documents were documents which contained confidential and sensitive information about Boris Berezovsky. Mr Berezovsky had not been given notice of the Application against the IPCC. He opposed the making of the order against the Met on the grounds that the requirements of CPR 31.17 had not been met.
(1) Whether Mr Berezovsky had sufficient locus to be heard on the application in relation to categories of document that did not expressly identify him;
(2) Whether the Defendant had shown that categories of document sought from the Met were likely to support its case or harm the case of the Claimant; and
(3) Whether disclosure of the categories of document sought was necessary.
Dismissing the Defendant’s application against the Met:
(1) Mr Berezovsky had a sufficient interest in the Application against the Met to entitle him to make submissions. Important public policy considerations required that 3rd party disclosure orders were only made where the court was satisfied that it was appropriate to do so;
(2) Before the Court could order the disclosure of a wide class of documents the Defendant had to show that all documents in the class would satisfy the CPR 31.17 threshold. For many categories of documents the Defendant had failed to do so. Further, other classes of documents related to issues that were not in dispute in the proceedings or which had not been properly defined because of the absence of an Amended Reply;
(3) Some categories of documents were refused on the basis that the Defendant had failed to show that further disclosure was necessary given the previous order made against the IPCC.
A salutary reminder of the important safeguards that need to be observed before third-party disclosure orders can properly be made. As the Judge observed, the requirements upon a public authority properly to safeguard the interests of third parties in such applications are likely to be more onerous after the Human Rights Act 1998.