Andrew Mitchell MP v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] EWHC 879 (QB) |
| Docket Number | Case No: HQ013D01052 |
| Court | Queen's Bench Division |
| Date | 27 March 2014 |
[2014] EWHC 879 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ013D01052
HQ13D05940
and
Gavin Millar QC and Adam Wolanski (instructed by Simons Muirhead & Burton) for News Group Newspapers Ltd
Desmond Browne QC (instructed by Slater & Gordon (UK) LLP) for Mr Rowland
Jeremy Johnson QC (instructed by the Metropolitan Police Directorate of Legal Services) for the Commissioner of Police of the Metropolis
Richard Munden (instructed by Atkins Thomson) for Mr Mitchell MP
Hearing date: 24 March 2104
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable Mr Justice Tugendhat Mr Justice Tugendhat There are two applications before the court, one in each of these two libel actions. The actions arise out of the very widely publicised allegation of PC Rowland about what Andrew Mitchell MP said to him on the evening of 19 September 2012 when Mr Mitchell was leaving Downing Street with his bicycle. Mr Mitchell sues NGN, the publishers of The Sun, in respect of a report of Mr Rowland's allegations published on 21 September 2012. Mr Rowland sues Mr Mitchell in respect of Mr Mitchell's allegation that Mr Rowland had lied in making his allegations against Mr Mitchell.
Mr Mitchell's claim against News Group Newspapers Ltd has already been the subject of a judgment of the Court of Appeal on an issue as to costs: Andrew Mitchell MP v News Group newspapers Ltd [2013] EWCA Civ 1537 (27 November 2013). The central allegation in dispute in the action was summarised by the Court of Appeal as follows:
" The Sun Newspaper reported that the claimant, then the Chief Whip of the Conservative Party, had raged against police officers at the entrance to Downing Street in a foul mouthed rant shouting "you're f…ing plebs". The incident, which received wide coverage, has since become known as "plebgate"."
There have been extensive investigations into the allegations of Mr Mitchell and Mr Rowland. On 26 November 2013 the Crown Prosecution Service issued a statement headed: "CPS decisions in Operation Alice – incident at Downing Street on 19 September 2012". The Director of Public Prosecutions explained that the CPS had decided not to prosecute Mr Rowland because there was insufficient evidence to show that he had lied in his account, and insufficient evidence that Mr Mitchell was the victim of a conspiracy of misinformation. There was also an investigation under the Police Reform Act 2002. Under that Act a complaint may be referred to the Independent Police Complaints Commission.
The applications are each for disclosure against the Commissioner, who is not a party to either action, pursuant to CPR r.31.17. That rule provides, so far as material:
"(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.
(4) An order under this rule must –
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require the respondent, when making disclosure, to specify any of those documents –
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection."
The Commissioner did not, in principle, resist the applications for many of the categories of documents sought. He left it to the Court to determine whether I was satisfied that an order could and should be made. There were a number of categories of documents which the Commissioner objected to disclosing, and the applicants have not pursued an order for any of these.
At the end of the hearing I was satisfied, in relation to some of the documents or the classes of documents sought, that the conditions for making an order were satisfied. I stated that I would make an order in respect of those categories, and gave brief ex tempore reasons. They included, for example, the CCTV footage of the encounter, documents brought into existence at the time, and direct evidence from PC Rowland and Mr Mitchell relating to the incident. I also stated that I had not made a decision as to what, if any, order to make in respect of three further classes of documents, and that I would give my decision on those later, which I now do.
In the NGN action a Defence and Reply have been served. The defences include truth and Reynolds public interest privilege. The progress of the action was delayed pending the determination of the appeal to the Court of Appeal. The Application of NGN now before me was issued on 26 February 2014. The parties are awaiting a Case Management Conference before the Master for further directions in the action.
In the action commenced by Mr Rowland no Defence or later statement of case has yet been served. Mr Rowland's application notice was issued on 20 February 2014. Since the court may make an order under r.31.17 only where 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, an order will rarely be made before a defence has been served. In a libel action, where a Reply may be called for, such an order will rarely be made before a Reply has been served. Only then will the court be able to see what the cases of each of the parties are. See for example Abbas v Yousuf [2014] EWHC 662 (QB) (18 March 2014) and Flood v Times Newspapers Ltd [2009] EWHC 411 (QB); [2009] EMLR 18. In Flood Eady J said at para [36]:
"It is elementary, of course, as in relation to the disclosure of documents more generally, that in determining whether a document or class of documents has a potentially relevant bearing on one or more of the live issues in the case, one should focus narrowly on the pleadings as they stand, in order to see how the issues have been defined up to that point. Thus, as I have already pointed out, one cannot be guided by speculation as to how a different case might be pleaded, after a new source of documents is investigated, or as to matters which are merely canvassed in evidence – without being incorporated into a pleading."
But Mr Browne submits that this does not apply here because what are very likely to be the cases of the parties to Mr Rowland's action appear from the pleadings in the NGN action. In the present case I was satisfied that the material issues in the NGN action were very likely to arise in Mr Rowland's action.
I was also satisfied that if I made an order for disclosure to NGN, that it would be right to order disclosure to Mr Rowland, and if to him, then to Mr Mitchell also. Mr Mitchell has not issued an Application Notice, and he made no submissions to me in opposition to the applications of NGN and Mr Rowland. But his interests were represented by Mr Munden, who asked that any disclosure that I ordered should also be made to Mr Mitchell. There was no objection to this, and the interests of justice clearly so require.
The Commissioner very helpfully prepared descriptions of the categories of documents or classes of documents which he understood were specified by the two applicants. These are set out in Mr Johnson's skeleton argument. Since he had the documents, he was able to specify them more precisely...
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