Fox v Boulter (disclosure)
Reference:  EWHC 4012 (QB)
Court: High Court, Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 18 Dec 2013
Summary: Libel - specific disclosure - non-party disclosure - CPR 31.12 - CPR 31.17
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Jacob Dean (Respondent)
Jonathan Barnes (Claimant)
Instructing Solicitors: Simon Smith for the Claimant; DLA Piper for the Defendant; the Treasury Solicitor for the Respondent Cabinet Office and MOD; Manleys for the Respondent Mr Adam Werritty
The Defendant in a libel claim sought orders for specific disclosure against the Claimant, the former Secretary of State for Defence, and non-party disclosure against the Cabinet Office, the Ministry of Defence and an associate of the Claimant, Mr Adam Werritty. The Defendant argued that the Claimant had failed to comply with his obligations on standard disclosure, because he had not listed documents that may be relevant to the current dispute to which he had previously had access when he was Secretary of State. As against the Cabinet Office and the Ministry of Defence, the Defendant contended that they would be able to produce documents relating to the relationship between the Claimant and Mr Werritty, including as had been generated by inquiries conducted by the Claimant’s Permanent Secretary, Ursula Brennan, and the Cabinet Secretary, Sir Gus O’Donnell. As against Mr Werritty, the Defendant submitted he would be able to produce documents concerning his relationship with the Claimant and also as concerns the said inquiries.
Should an order be made against the Claimant that he file and serve a further list of documents; or against any of the non-party respondents that they conduct searches for documents of the sort identified by the Defendant’s application?
The Claimant had on the material before the court conducted a reasonable search and in any event it would not be consistent with the overriding objective to order him to attempt to identify more documents.
The issues on the pleadings are narrow. The order sought against the non-parties would be likely to cause time and resources of the parties, and of the court at trial, to be directed away from the real issues between the parties, and to maximise the burden on the litigants and the court. The approach adopted by the Defendant paid no proper regard to the reforms in the law brought about by the CPR, or the limiting considerations now applied to the disclosure exercise as described by Jacob LJ in Nichia Corporation v Argos Ltd  EWCA Civ 741. The non-party disclosure orders sought were not necessary for disposing fairly of the action, and they would not save costs.
Accordingly the applications were dismissed.
One of the concerns expressed by the Defendant was that without access to the documents he sought the Claimant might achieve vindication at the forthcoming libel trial on a false basis. The court did not in its judgment consider this likely, commenting that while there is always a risk of a court reaching a result that is wrong in the sense that it is not the result that would have been reached if indefinite further resources had been devoted to the case, it is not the law that unlimited resources are to be devoted to a case.