England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		HQ13D05940 Royal Courts of Justice Strand, London, WC2A 2LL
		27/03/2014

THE HONOURABLE MR JUSTICE TUGENDHAT

Mr Justice Tugendhat :

1. 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.
2. 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"."

3. 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.
4. 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."

5. 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.
6. 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.
7. 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.
8. 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."

9. 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.
10. 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.
11. 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 than the applicants, and the hearing proceeded on the basis that it was the Commissioner's descriptions which should be adopted.
12. The three categories of documents in respect of which I had not made a decision at the end of a hearing were (according to the lettering adopted at the end of the hearing):

"(h) Witness evidence from other police officers who either witnessed the incident or became aware of the incident shortly afterwards (and associated notes and emails)…

(i) Witness evidence from those who spoke to Mr Mitchell shortly after the incident (and associated notes and emails)…

(k) Transcripts of interviews with police officers in which the specific details of the incident are addressed…"

13. Mr Johnson informed the court that the material in question was obtained in the course of the investigation under the 2002 Act, and that those who provided the information were doing so for the purposes of that investigation, and not for any wider purpose. He also informed the court in his skeleton argument that ten persons of whose statements the applicants seek disclosure had expressed concerns or objections to such disclosure. And in a Supplemental Skeleton argument he disclosed that one further witness objected to disclosure on grounds which he summarised, and that a further nine had indicated that they were content for their statements and exhibits to be disclosed subject to conditions which he set out. It appears to me that the objections and conditions put forward by those who made the witness statements in question arguably raise issues not only as to the equitable right to confidentiality, but also as to whether their rights to their private and family lives may be engaged and interfered with if an order were to be made. Two expressly referred to privacy.
14. Mr Johnson stated that he merely drew these responses to the attention of the court and the parties without adopting them. He submitted that if an order were to be made, then in order to meet these concerns or objections the court should consider making any order subject to the conditions which were imposed on a disclosure order in Frankson v Home Office [2003] 1 WLR 1952 at para [18]. These conditions restricted the use to which the documents disclosed could be put and the persons to whom they could be disclosed.
15. In Frankson the claimants had brought claims for damages against the Home Office alleging that while they were in prison they had been assaulted by prison officers. The claimants had not made any claims against any prison officer. But some prison officers had made statements to the police when interviewed under caution during the police investigation of the alleged assaults. The claimants applied to the court for an order under CPR r.31.17 that the police disclose the statements. The judge hearing the application ordered that the prison officers who had made statements be joined as parties to the proceedings, and he made the order for disclosure, subject to conditions restricting the use to which the disclosed material could be put. The prison officers appealed to the Court of Appeal. The Commissioner of Police took a neutral stance and did not appear on the appeal. The issue was between the claimants and the prison officers. It was common ground that the statements met the test of relevance under r.31.17(3)(a). The issue was whether disclosure was necessary within the meaning of r.31.17(3)(b) and whether the judge should exercise the discretion which was given by the opening words of r.31.17(a)(3). See para [11] of the judgment of Scott Baker LJ.
16. In Frankson the Court of Appeal referred to earlier authority, including Taylor v Director of the Serious Fraud Office [1999] 2 AC 177; R (Green) v Police Complaints Authority [2002] EWCA Civ 389; Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25; Bunn v BBC [1998] 3 All ER 552; R v Secretary of State for the Home Department, ex p Hickey (No 2) [1995] 1 WLR 734.
17. In these cases the courts have recognised that those who make statements to the police, or give information as witnesses, may do so in circumstances where an equitable obligation of confidence is owed to them, and, where that is the case, then there are two competing public interests to be balanced: on the one hand the public interest of maintaining the confidentiality of those who make statements to the police in the course of a criminal investigation, and on the other the public interest of ensuring that as far as possible the courts try civil claims on the basis of all the relevant material and thus have the best prospect of reaching a fair result. See Scott Baker LJ at paras [13]-[17].
18. The appeal was dismissed because the judge had conducted the balancing exercise correctly and on the facts of that case the public interest of ensuring a fair trial overrode the public interest in preserving the confidentiality of the statements. Pill LJ at para [56] noted that the civil claims made by the prisoners were based on essentially the matters that the police had been investigating when they took the statements. He contrasted that context with Taylor, which was a defamation action, and he noted that in that context the balancing of the public interests had led to a different outcome.
19. The report of Frankson contains no reference to any submission that any prison officer's right to his private and family life under the Human Rights Act 1998 was engaged. The case was decided solely on the basis of the rights of the parties under the common law and equity. It may have been considered that the disclosure of a witness statement made by a prison officer in the circumstances of that case did not engage the prison officer's Convention rights. It may have been considered that the disclosure of a witness statement made by a prison officer in the circumstances of that case did not engage the prison officer's Convention rights.
20. It is to be noted that in Frankson the witnesses who were objecting to disclosure (prison officers) were represented, and the court was able to consider their rights. It is also to be noted that, apart from Green and Frankson itself, all the cases cited above pre-dated the Human Rights Act 1998. In Commissioner of Police of the Metropolis v Times Newspapers Ltd [2011] EWHC 2705 (QB) paras [49]-[61] I myself considered non-party disclosure orders and the rights of non-parties who were not respondents to an application. In that case, as in Green, submissions were made by reference to the HRA.
21. Both the Commissioner of Police and this Court are public authorities. There may still be cases (of which Ex parte Coventry Newspapers Ltd [1993] QB 278 may be an example) where the court can be satisfied that an order for disclosure of witness statements and similar documents ought to be made, notwithstanding its possible effect on the rights of persons not before the court, and without such persons having expressed their consent or having had formal notice of the hearing. I express no view on that. But if there are such cases, then in my judgment the present case is not one of them.
22. None of those who had made any of the statements in question in this judgment were represented at the hearing before me. Nor have I seen the documents in which they set out their responses. When I raised my concern about their interests, Mr Johnson told me that letters had been written to them, and that some of those to whom letters had been written had replied. But none of this material was in evidence before me. He also informed the court that they included public servants to whom the Treasury Solicitor had given advice.
23. Although the Commissioner's position in respect of the applications was neutral, the position of the two applicants was not. They submitted that the court could be satisfied that an order should be made in respect of the three classes of documents now in question, provided that the disclosure was expressed to be subject to the conditions laid down in Frankson.
24. I am not persuaded that I can be satisfied that an order ought to be made on the material now before the court. For the avoidance of doubt, nothing in this judgment should be taken as the expression by me of any view as to whether or not a non-party disclosure order should be made in this case against the Commissioner in the event that the applications be renewed the makers of the witness statements in question who have not consented to the making of an order are joined as parties or make representations to the court.
25. The parties also submitted to me that I might consider making an order for disclosure to take effect only after a specified period, and give the individuals who might be affected by that order liberty to apply to set it aside, if so advised. I decline to take that course. The HRA requires that a genuine balancing exercise be conducted on a case by case basis. I am in no position to carry out such an exercise. An order of the kind suggested would also convey the impression that the court had reached at least a preliminary conclusion adverse to the witnesses concerned, and that might discourage them from making representations which they would otherwise be minded to make.
26. Should this judgment be referred to in the future, it will be noted that the decision I have reached, and the reasons I have set out, are not derived from adversarial argument. As is all too commonly the case, I have decided that it was necessary that I adopt a course of my own motion and in the face of powerful advocacy to the contrary. If any of those who gave the statements of which disclosure is sought are advised that I was wrong to have done this, nothing in this judgment binds them to adopt what I have written.
27. For these reasons the applications in relation to the classes of documents identified in para 12 above are refused.