Flood v Times Newspapers Ltd & Ors

Third-party disclosure is an exceptional jurisdiction and should not be ordered routinely. Under the Civil Procedure Rules 1998, the applicant must show that the documents are likely to support its case or adversely affect another party's case; likely means that they may well assist. The applicant must then show that disclosure is necessary to dispose fairly of the claim or save costs. The court retains a residual discretion involving the public interest and third-party privacy or confidentiality. Requests must be confined to live pleaded issues. A class of documents is impermissible where it includes documents below the relevance threshold or requires the non-party to investigate and sort them. Wide, duplicative or speculative categories will fail.

Gary Flood, a police officer, sued Times Newspapers Ltd over a Times article alleging that there were strong or reasonable grounds to suspect that he had accepted bribes for confidential extradition intelligence. Times pleaded justification to a Lucas-Box or Chase level three meaning and qualified privilege. It sought third-party disclosure from the Metropolitan Police Service, including documents concerning the investigation, searches and communications with journalists. Boris Berezovsky sought to intervene in the application because confidential material concerning him had been disclosed by the IPCC under a consent order made by Master Fontaine on 11 September 2008. The central issues were whether the requested categories satisfied the requirements for non-party disclosure and were sufficiently focused on the pleaded issues.

The court refused Times Newspapers' application for disclosure against the Metropolitan Police Service. Boris Berezovsky's application concerning the earlier IPCC order was adjourned.

1. Three-stage approach. Section 34 of the Supreme Court Act 1981 supplied the statutory power, subject to section 35(1), and CPR 31.17 governed its exercise. Following Frankson v Home Office [2003] 1 WLR 1952, third-party disclosure was exceptional rather than routine. The court had to consider relevance, necessity and then the residual discretion.
2. Relevance. The documents had to be likely to support the applicant's case or adversely affect another party's case. Following Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2003] 1 WLR 210, likely meant that the documents may well assist one side or the other.
3. Necessity. This second hurdle arose only after relevance had been established. Disclosure had to be necessary to dispose fairly of the claim or save costs. Duplication of material already obtained from the IPCC was inconsistent with necessity.
4. Classes of documents. The court could not order disclosure of a composite class containing documents below the relevance threshold, nor require the non-party to identify compliant documents. The applicant had to show that documents within the class existed and met the threshold. The approach in Re Howglen Ltd [2001] 1 All ER 376 was applied, and the court guarded against a fishing expedition.
5. Third-party interests. Even where the first two hurdles were met, the court retained a discretion requiring a careful balance of public interests, privacy and confidentiality. Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25, Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 and Taylor v Serious Fraud Office [1999] 2 AC 177 illustrated the need to protect affected third parties and confidential police sources. The Human Rights Act 1998 reinforced those considerations.
6. Pleadings and privilege. Relevance and necessity had to be assessed against the live pleadings, not speculation about future amendments or unpleaded evidence. For qualified privilege, the relevant material was what the journalists had available at or shortly before publication, applying Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
7. The categories sought were too broad, duplicated the IPCC disclosure and were likely to include irrelevant documents. Times therefore failed to establish relevance and necessity, and the requested order was not granted. A more narrowly focused application might still be possible.

First instance. Master Fontaine made a consent third-party disclosure order against the IPCC on 11 September 2008. The present judgment refused Times Newspapers' separate application against the MPS and adjourned Mr Berezovsky's application concerning the IPCC order.