Flood v Times Newspapers Ltd (No 1)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 05 March 2009 |
| Neutral Citation | [2009] EWHC 411 (QB) |
| Docket Number | Case No: HQ07X01839 |
| Court | Queen's Bench Division |
| Date | 05 March 2009 |
[2009] EWHC 411 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Eady
Case No: HQ07X01839
Kate Wilson (instructed by Alastair Brett, Times Newspapers Ltd) for the Defendant/Applicant
Jason Beer (instructed by Metropolitan Police Legal Services) for the First Respondent
Richard Perks (instructed by IPCC Legal Services) for the Second Respondent
Matthew Nicklin (instructed by Carter-Ruck) for the Third Party Applicant
Hearing date: 23 February 2009
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.
Mr Justice Eady:
The nature of the claim
The Claimant in this libel action is Gary Flood, a police officer. He sues Times Newspapers Ltd in respect of an article in The Times on 2 June 2006, published in hard copy and on the Times website. It was headed “Detectives accused of taking bribes from Russian exiles”. The defamatory meaning of which he complains is essentially that “… there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect, that the Claimant had abused his position as a police officer … by corruptly accepting £20,000 in bribes from some of Russia's most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges.”
It was also stated that Mr Boris Berezovsky was a client of an organisation known as ISC, which was run by a friend of the Claimant called Keith Hunter, and that two companies with which Mr Berezovsky was associated had made payments to ISC of the order of £600,000. (Mr Hunter now heads the RISC group of companies, described in the pleadings as “successors” to ISC, which itself no longer exists.) It is right to record that Mr Berezovsky has denied any involvement in the procurement of confidential information.
The Defendant wishes to justify the allegations about the Claimant by reference to the Lucas-Box meaning that he was the subject of an internal police investigation and that there were grounds which, objectively regarded, justified a police investigation into whether he received payments in return for passing confidential information about Russia's possible plans to extradite Russian oligarchs. This corresponds with what is nowadays sometimes referred to as a Chase level three meaning: Chase v News Group Newspapers Ltd [2003] EMLR 11.
In my experience, pleas of justification on this basis are rare and require careful scrutiny, in order to ensure that the particulars are properly confined. This is a consideration to be borne in mind in dealing with the matters now before the court.
Mr Berezovsky's application to set aside the order against the IPCC
There was an application made on behalf of Mr Berezovsky, by notice dated 17 February 2009, with a view to setting aside, either wholly or in part, a third party disclosure order. It was granted to the Defendant by Master Fontaine on 11 September 2008 against the Independent Police Complaints Commission (“IPCC”). Inevitably, as the order was made by consent, no judicial scrutiny was brought to bear on the criteria to be applied in the exercise of this special jurisdiction. In particular, neither Mr Berezovsky nor any other person whose rights were potentially affected (such as Mr Dubov, who has also been represented before me) were addressed.
It is submitted by Mr Nicklin, appearing on Mr Berezovsky's behalf, that the order has resulted in the disclosure of a sensitive and confidential document concerning Mr Berezovsky's affairs, despite the fact that it is acknowledged to be irrelevant to the issues in the libel action.
Mr Nicklin strongly criticises what has taken place and attributes it to “the combination of the unjustifiable width of the Defendant's third party disclosure application and a conspicuous lack of rigour on behalf of a public authority in discharging its duty to ensure that the interests of privacy/ confidentiality of a third party are properly protected”.
In the course of the hearing Mr Nicklin was shown copies of other documents which had been disclosed by the IPCC pursuant to the 11 September order, of which he had previously been unaware, despite requests made in correspondence by Mr Berezovsky's solicitors. In the light of that further information, he was compelled to ask for an adjournment of the application relating to the IPCC until he had had an opportunity properly to consider the new material, which he described as “littered” with references to his client. As and when the hearing is resumed, as I understand it, Mr Nicklin will not necessarily be going so far as to ask for the 11 September order to be set aside. He will probably be content to have any sensitive documents shredded. Meanwhile, he continued to address the other application before the court.
The application of Times Newspapers Ltd for disclosure against the MPS
There is a further application by the Defendant for third party disclosure, on this occasion against the Metropolitan Police Service (“MPS”). Mr Berezovsky wished to be heard in relation to this application, as an interested party, and Mr Nicklin submitted that in the light of the unhappy experience over the IPCC disclosure, it was entirely appropriate that proper rigour should now be applied to the Defendant's second application. Quite apart from the rights of the parties to the litigation, and those of the interested parties, it is necessary for the court to have regard to the special nature of this jurisdiction and to ensure, so far as possible, that it is exercised in accordance with appropriate constraint and that the relevant criteria are properly addressed.
In relation to any third party disclosure application, it is always necessary to focus carefully on the pleaded issues in the case. That is because of the nature and scope of the statutory jurisdiction.
The court's jurisdiction
It is provided in s.34 of the Supreme Court Act 1981, as amended, that there shall be a power to make such an order, although it is clear that none should be made if the court considers that compliance with it would be likely to be injurious to the public interest: s.35(1). The relevant rule is currently to be found in CPR 31.17:
“(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) the disclosure is necessary in order to dispose fairly of the claim or to save costs.”
In the light of this wording, and in particular because of the test of necessity, Mr Nicklin submits that the court should ensure that due rigour is applied in deciding whether or not to grant the order now sought against the MPS. Not only is it appropriate to remember at all times the scope of the issues in the case, as defined by the pleadings, but the Defendant has to show in the particular circumstances that what is now sought, in the schedule to its application, remains “necessary” having regard to the documents obtained on the earlier application against the IPCC. Clearly, for example, any duplication would be inappropriate.
One of the points stressed by Mr Nicklin is that in the present case it is not yet possible to identify the issues definitively, since the pleadings are not complete. On 8 May 2008 the Defendant was given permission to amend its defence, but in the course of the hearing it was made clear by Ms Wilson, acting on its behalf, that there would be a further application to amend at some stage in the near future. As yet, no amendment to the reply has taken place to address the amendments already made. It would obviously be sensible to postpone the service of any amended reply until the defence itself is in final form. Nevertheless, this uncertainty highlights the need for the court to ensure that no order for third party disclosure is made on the basis of either pleadings which are historic or assumptions or speculation as to what the issues are going to be in the future.
Mr Berezovsky's particular grounds for concern
Mr Nicklin's concerns on behalf of his client need to be assessed against the background of warnings given as long ago as 23 May 2008 to the solicitors for the MPS and to the IPCC. There is no doubt that the IPCC was fully aware from the solicitor's letter of that date of Mr Berezovsky's genuine concern as to the possible disclosure of private and confidential matters concerning him and the arrangements for his security. Despite this, when the matter finally came to court on 11 September 2008, there had been no notification to Mr Berezovsky of the application or the hearing date. He could not, therefore, be represented and the only legal representation on that occasion was on behalf of the Defendant.
It was in October 2008 that the IPCC provided documents to the Defendant and, on 12 November, Mr Alastair Brett responded on its behalf stating that those documents touching on the confidential affairs of Mr Berezovsky were of no interest for the purposes of the litigation.
On 15 January 2009, however, a communication from...
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