08 April 2014

A party in court proceedings will need documents to support its case. It, and its opponent, will invariably have some of those documents and will have to provide them. But what if relevant documents are also (or principally) held by a third party? Can that third party be made to provide its private documents?

The interests of the administration of justice suggest that the court needs to understand all the facts and therefore relevant evidence should be obtained from any source including third parties. However, that will interfere with the civil freedoms, privacy and right to go about its own business without interference of the party being required to provide its documents. It is not a party to the case and has done nothing wrong. Why should it be dragged into court and potentially lose confidentiality in its documents?

This is the balancing act which the court goes through whenever it is asked to order documents be disclosed by someone who is not a party to the court proceedings. It can happen before proceedings are commenced (known as Norwich Pharmacol) or more commonly once court proceedings have been issued. A few recent cases have commented on when a claim can be brought and how the balancing act should be applied.

Any application for disclosure against a person who is not a party to proceedings has to prove that the evidence is 'likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings' and 'is necessary in order to dispose fairly of the claim or to save costs'.

Private individuals' right to privacy

In the latest round of the defamation cases connected to Mr Mitchell's comments to the police at the Downing Street gates ('plebgate'), Mr Mitchell, who is suing News Group newspapers in respect of allegations in articles in The Sun, is also himself being sued for accusing certain police officers of lying. In connection with the defamation case against Mr Mitchell, an application was made for disclosure of material held by the police commissioner. This ranged from documentary information arising from the incident and its investigation to witness statements taken by the police from individuals who had been involved or spoken to those involved shortly after the incident.

In relation to these witness statements and records, there are consequently two types of 'third party.' The police commissioner who nominally holds the records was represented at the application for disclosure. However, in addition to him, a further category of third party was those who had provided the answers for the witness statements. Although there was some indication that some of those individuals objected to their statements being provided to the combatants (Mr Mitchell and the police officer suing him) they were themselves not represented at the application and no evidence of their position was formally lodged.

In these circumstances the court declined to order that their statements be disclosed. Their privacy and the potential effect upon them of the disclosure outweighed the evidential value of their evidence for the case.  

While it is unlikely that a company's commercial confidentiality will ever rank as highly as an individual's rights to privacy in this respect, this is a real life example of the court weighing the prejudice and advantage of the administration of justice and privacy and favouring privacy.

Wait until after serving your statements of case before applying

Helal Uddin Abbas v Yousuf was a libel claim. Mr Yousuf had published an article suggesting that the Mr Abbas, a mayoral candidate, had a history of committing violent assault against women, including his former wife, Ms Ali. The Crown Prosecution Service (CPS) had charged the Mr Yousuf under the Representation of the People Act 1983 in respect of the same article, supported by a witness statement provided by Ms Ali denying that the Claimant had been violent towards her. The CPS discontinued those proceedings as a result of the medical notes of a witness which, its notice of discontinuance stated, “undermined the prosecution case”.

Mr Yousuf inferred that these notes were those of Ms Ali and that they could suggest that her statement denying any violence was false. Prior to filing a defence in the libel claim, he applied for disclosure of the medical notes, stating that they could provide him with a defence of justification. Ms Ali resisted the application on the basis that her medical notes were very private and that her GP had, after reviewing them, confirmed that they made no note of any complaint of violence towards her.

The judge refused the application, stating that once proceedings are commenced, an application for third party disclosure must relate to a party's 'case.' According to the Judge, Mr Yousuf had no 'case' within the meaning of the rules until he had served a defence. Until then, his application was premature; the rule should not be used as a means of fishing for documents to help a defendant draft his defence.

This is perhaps surprising given that it was fairly clear what Mr Yousuf's case would be and he appears to have explained it to the court in connection with his application – the judge noted that the application setting out his reasons for requesting disclosure was signed with a statement of truth but observed that speculation as to how a different case might be pleaded after some new source of disclosure had been investigated is not relevant. Requiring him to go away, draft and submit his defence and then apply for the documents (before potentially then amending the defence in relation to anything which came out of those documents) does seem long-winded.  

Although found on a matter of principle, underlying this decision may be a sense that the judge did not consider the documents were likely to be relevant (in light of the doctor's comments). Nonetheless, whilst the facts of this case and the connected criminal proceedings clearly had some bearing on the outcome, the judge was clear in stating that an application by a defendant for non-party disclosure should not be made before a defence has been served.

The author Caroline Brown is part of Burges Salmon's Disputes and Litigation team led by David Hall.

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David Hall Partner

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