Mireskandari v Associated Newspapers Ltd.

Specific disclosure and information orders must be directed to documents or information relevant to issues in the litigation. The court will not permit a party to search generally for material which might later support an application that a judge should recuse herself. Previous instructions received by a judge while at the Bar do not ordinarily, without more, establish apparent bias. An order may also be refused as unnecessary and disproportionate where the applicant already possesses the relevant information or the request serves no legitimate forensic purpose.

The claimant brought a libel claim against the defendant concerning articles accusing him of dishonesty. He sought an order requiring the defendant to investigate and disclose the number and dates of instructions given to Sharp J, formerly counsel for the defendant, and whether those instructions concerned specified individuals or cases.

The claimant said that the information might support a future argument of apparent bias or a recusal application. The issues were whether the requested information could be ordered under CPR 31.12, CPR Part 31 or CPR Part 18, and whether the request was necessary and proportionate.

1. Application dismissed. The court was not satisfied that it had jurisdiction to make the proposed order under CPR Part 31, CPR Part 18 or any other identified basis.
2. An order for specific disclosure under CPR 31.12 must relate to an identified document or class of documents having relevance to the issues in the litigation. The claimant had identified neither. The requested information about instructions received by Sharp J while at the Bar had no bearing on the central issues, which concerned the defendant’s plea of justification and the meanings pleaded in the defence.
3. Information sought under CPR Part 18 must likewise relate to issues in the case. The proposed investigation into the defendant’s past instructions to Sharp J could not be categorised in that way.
4. The request amounted to an attempt to fish for material which might later enable a recusal or apparent-bias argument. The claimant already possessed information about five cases in which Sharp J had acted for the defendant. Further investigation was unnecessary and would serve no legitimate purpose.
5. The court referred to Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, at [25], where the Court of Appeal observed that an objection would not ordinarily be soundly based merely on the judge’s previous receipt of instructions to act for or against a party involved in the case. The court made no determination on the merits of any future bias argument.