McBride v The Body Shop International Plc

A document obtained by compulsory disclosure may be used only for the proceedings in which it was disclosed unless an exception applies. Under CPR 31.22(2), the court may prohibit collateral use by balancing the public interest in full and frank disclosure against the parties’ private interests and the proposed use. A threatened defamation claim is a relevant disincentive to disclosure. Qualified privilege protects communications made on an occasion of common and corresponding interest, provided they are honestly made; a duty to publish and fairness are not essential. Deliberate concealment requires concealment from a person entitled to access the document. The limitation discretion is broad but requires consideration of all the circumstances, including merits, delay and abuse of process.

The claimant brought a libel claim concerning one sentence in an internal email sent by the defendant’s branch manager to two senior employees. She obtained the email through compulsory disclosure in employment tribunal proceedings, more than 12 months after publication. She alleged deliberate concealment and sought to rely on the document in the libel proceedings.

The defendant applied under CPR 31.22(2) to prohibit use of the email and sought dismissal or summary judgment on limitation and abuse-of-process grounds. The court also considered the limited publication, the absence of evidence connecting the email with the claimant’s dismissal, qualified privilege and the claimant’s delay after obtaining the document.

1. Relief under CPR 31.22(2). The claimant obtained the email through compulsory disclosure in the employment tribunal proceedings. It had not been read out or expressly referred to at a public hearing. The court had to balance the public and private interests without any presumption requiring special reasons. Those interests included encouraging full and frank disclosure, protecting privacy, treating litigants justly and avoiding collateral litigation.
2. The proposed use was to bring a defamation claim based on limited publication to two recipients. The email concerned allegations made in an employment grievance and was published on an occasion of qualified privilege. The recipients and author had a common and corresponding interest. A duty to publish, or an obligation to respond fairly and evenly, was not essential. The relevant protection was that the communication should be made honestly. There was no evidence capable of supporting malice; the possibility that the author honestly believed the words to be true was an obvious alternative explanation.
3. The balance of justice strongly favoured prohibiting use of the disclosed document for the collateral defamation claim. That order disposed of the applications in the defendant’s favour.
4. The primary limitation period had expired. Non-disclosure of a confidential internal document did not amount to deliberate concealment under section 32(1)(b) of the Limitation Act 1980, because the claimant had no right to inspect every internal document concerning her. Nor was it equitable to disapply the limitation period under section 32A. The claimant had delayed after receiving the email, and the merits, qualified privilege and abuse-of-process considerations weighed against relief.
5. The court observed that the limited publication and absence of tangible advantage could independently have justified striking out the claim as an abuse of process under the principles in Dow Jones & Co Inc v Yousef Abdul Latif Jameel. Summary judgment was appropriate because the alleged factual disputes were unsupported and did not undermine the CPR 31.22 or limitation conclusions.

Not stated in the judgment.