Fiddes v Channel Four Television Corporation and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lady Justice Smith,Lord Justice Wilson |
| Judgment Date | 29 June 2010 |
| Neutral Citation | [2010] EWCA Civ 730,[2010] EWCA Civ 516 |
| Docket Number | Case No: A2/2010/1354,Case No: A2/2009/0286 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2010 |
[2010] EWCA Civ 516
(Mr Justice Tugendhat)
Before: Lord Justice Pill
Lady Justice Smith DBE and
Lord Justice Wilson
Case No: A2/2009/0286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr David Sherborne (instructed by M Law) appeared on behalf of the Appellant.
Mr Matthew Nicklin (instructed by Messrs Aslan Charles Kousetta LLP) appeared on behalf of the Respondent.
Lord Justice Pill:
This is an appeal by Mr Matthew Fiddes, the appellant, at present the applicant, against an order of Tugendhat J on 28 January 2010 refusing his application for specific disclosure in a libel action.
The application for permission to appeal has been referred on a consideration of the papers to this court. Permission to appeal is granted.
The order sought before the learned judge was in these terms:
“The second defendant do restore and then carry out a search of its back up tapes for the period between 1st March 2008 and 4 th July 2008 for e-mails and their attachments (if any) concerning the programme complained of and sent to or from or copied to the third defendant and/or Alice Bowden. (2) The second defendant do provide the claimant with disclosure by a list of documents found pursuant to the search carried out pursuant to paragraph one above by 11th February 2010.
The appellant had applied for an order, therefore, that Studio Lambert Limited, the respondents, carry out a search of its IT system's backup tapes for that deleted traffic. A trial date for the hearing of the action has been fixed. That is 10 June 2010. We are now a few days from the end of term. We have heard substantial submissions from Mr Sherborne for the appellant and Mr Nicklin for the respondent and are anxious that there be no risk of the hearing date being postponed. Having regard to the members of the court's own commitments during the last few days of this term, I will give judgment this afternoon.
The trial judge described the background in paragraphs 2 to 4 of his judgment, the reference to the claimant being to the present appellant.
“The action is in respect of a broadcast made on the 27 th November 2008 under the title The Jacksons Are Coming. It was about a visit of the family of the late Michael Jackson to Cornwall. The claimant knew the family and participated extensively in the broadcast. The third defendant, Miss Preston, is a journalist and film maker and she was engaged by the second defendant for the purpose of making the programme, which has been complained of. She was also the director and narrator of the programme. Alice Bowden was her assistant.
3. The meanings complained of by the claimant need not be set out. They are somewhat more serious than that pleaded by the defendant which the defendant is proposing to justify. The meaning pleaded by the defendant as true is as follows: ‘The claimant had betrayed the trust that the Jackson family had placed in him and hypocritically deceived them by using his position as an apparent friend by seeking to exploit their fame for his own personal benefit and was a manipulative and dishonest individual. ‘There are 43 sub-paragraphs of particulars of justification extending over many pages. The defendants also plead a defence of honest comment.
‘Insofar as the words complained of conveyed or were understood to convey any or all of the following statements (a) the claimant had betrayed the Jackson family appallingly (b) that the claimant had sought to exploit the Jacksons’ fame for his own personal benefit and/or (c) that the claimant was manipulative, then they are honest comment on a matter of public interest namely the claimant's behaviour in relation to the Jackson family and the making of the programme’.
4. All the statements of case to which I refer have been amended and I refer to the amended versions. There is a reply that covers some 44 pages which pleads in detail to the particulars of justification. It denies the meaning sought to be justified and it includes also in response to the plea of comment, a plea of malice. It includes two passages which give the substance of the claimant's case in this action. The first is as follows (paragraph 9)
‘The second and/or third defendants manipulated the underlying footage which they had recorded so as to create or reinforce this false and defamatory allegation and/or chose to omit or distort in the final edited version of the programme a series of key facts or matters which if referred to in the broadcast would have completely undermined the allegations complained of and/or utterly destroyed the credibility of the programme itself.’
In paragraph 12, under particulars of malice, there is pleaded:
‘The third defendant and the second defendant (through its vicarious liability for Stephen Lambert) knew that the central message of the programme was completely untrue and/or had no honest belief in the same. There was no betrayal of trust by the claimant. He was not guilty of betraying the Jacksons for his own benefit or otherwise by leaking stores to the press or seeking publicity before and during their trip despite their wishes to avoid any publicity. This message was conveyed or reinforced by the way in which the programme and/or the underlying footage was selected or edited as referred to in paragraph nine above.”
The second defendant's list of documents is in standard form with a number of riders. Among the documents listed as no longer being in their control are e-mails between:
“…the third defendant…and others for the approximate date range March 2008 to June 2008 on the Studio Lambert email account. These documents are at last in the control of the third defendant in approximately August to October 2009 when she deleted them due to lack of storage space on the account”
Also listed under that heading are e-mails between Alice Bowden and others from April to July 2008. These documents were said to have been deleted by Alice Bowden in July 2008 when she left the employment of Studio Lambert. A disclosure statement signed by the third defendant, Miss Preston, is in substantially similar terms.
The appellant's solicitors have subsequently been notified that Miss Bowden did not in fact use the e-mail facilities provided by her employers during the relevant period. That being so, if they are sure that is the position—and that has not been authoritatively resolved this afternoon—they agree having deleted from the application the words I cited relating to Miss Bowden.
Civil Procedure Rule 31.7 provides:
“(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).
(2) The factors relevant in deciding the reasonableness of a search include the following –
(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the search.
(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.
(Rule 31.10 makes provision for a disclosure statement)”
Electronic disclosure is further considered in paragraph 2A of the Part 31 Practice Direction. That provides, so far as is relevant:
“[ 2A.1
Rule 31.4 contains a broad definition of a document. This extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.
2A.2
The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.
2A.3
The parties should co-operate at an early stage as to the format in which electronic copy documents are to be provided on inspection. In the case of difficulty or disagreement, the matter should be referred to a Judge for directions at the earliest practical date, if possible at the first Case Management Conference.
2A.4
The existence of electronic documents impacts upon the extent of the reasonable search required by Rule 31.7 for the purposes of standard disclosure. The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the following:–
(a) The number of documents involved.
(b) The nature and complexity of the proceedings.
(c) The ease and expense of retrieval of any particular document. This includes:
(i) The accessibility of electronic documents or data including e-mail communications on computer systems,...
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