Collins Stewart Ltd & Anor v The Financial Times Ltd

In a defamation claim involving a defence of qualified privilege, information and documents may be ordered where they materially bear on the defendant’s knowledge, the claimant’s side of the story, or other matters relevant to the Reynolds criteria. A request may be refused where its relevance is marginal and obtaining the information would be disproportionate, particularly where the issue goes principally to damages. Disclosure may also extend to drafts, notes, research and related documents concerning articles relied upon in support of the defence, subject to protection for journalistic sources.

The claimants sought further information and disclosure at a pre-trial review in defamation proceedings against the defendant newspaper. The outstanding applications concerned telephone conversations, website access figures, a conversation with a claimant, research into a source’s reliability, approaches to companies named in an FSA document, and documents relating to other articles relied upon in support of qualified privilege.

The court determined the remaining applications on the parties’ written submissions. The central questions were whether the requested material was relevant to the issues, including the qualified privilege defence, and whether any request was disproportionate.

1. Telephone conversations. The claimants were entitled to information about conversations between Mr Tassell and Mr Middleweek on 29 August 2003, including available notes. The telephone records and the subsequent article indicated potential relevance. The article’s treatment of the claimants’ side of the story was relevant to one of the Reynolds criteria.
2. Website access figures. The request for the number of accesses to each article was refused. The information was of marginal relevance, going principally to damages, and the available evidence supported the conclusion that obtaining detailed figures would be disproportionate.
3. Conversation and research. The claimants were entitled to further information about what Mr Terry Smith was said to have told Mr Johnson. They were also entitled to the full extent of the defendants’ research into Mr Middleweek, including when it was undertaken, because it was relevant to the defendants’ knowledge of his reliability at publication. The defendants’ assertion that the search revealed no concrete reason to doubt him invited further inquiry.
4. Other documents. The claimants were entitled to information about approaches to companies named in the FSA document, disclosure of the skeleton of the IPO article, and drafts, notes and related documents concerning the “Gauntlet” article and associated quotations. Those materials were relevant because the articles were relied upon in support of qualified privilege. Disclosure remained subject to the protection of journalistic sources.

The applications were therefore granted in substantial part, with the disproportionate request for website access information refused.