Mireskandari v Associated Newspapers Ltd

An order requiring a party to explain disclosure deficiencies does not, without clear words, require waiver of legal professional privilege. A witness statement may identify that factual matters are omitted because privilege is properly claimed and still comply. A specific disclosure order is appropriate where pleadings or further information put a matter in issue or potentially in issue, and an appellate court should not intervene in a reasonable case-management decision. Apparent bias is assessed by asking whether all relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. A judge’s previous instructions to act for a party will ordinarily not suffice. Concerns should ordinarily be raised openly with the judge rather than by seeking broad collateral information.

Mr Shahrokh Mireskandari brought libel proceedings against Associated Newspapers Limited concerning allegations published in its newspapers, including alleged misuse of a social-security number. Two appeals arose from an order made by Sharp J on 19 February 2010. One concerned explanations for disclosure deficiencies and the provision of information about the social-security number. The other concerned legal professional privilege. An application for permission to appeal arose from Eady J’s refusal on 4 May 2010 to order Associated Newspapers to search for information about its previous instructions to Sharp J before her appointment to the High Court.

The Court of Appeal considered the scope of the orders, the relevance of further information to the pleaded issues, and the proper approach to an allegation of apparent bias.

Outcome. The two appeals were dismissed and the application for permission to appeal was refused.

1. Legal professional privilege. Paragraphs 5 and 6 of Sharp J’s order required explanations for disclosure inadequacies and related matters. They did not, absent clear wording in the order or a clear statement at the hearing, require the claimant or his solicitor to waive or infringe privilege. Legal professional privilege is a fundamental aspect of the legal system, as recognised in R v Derby Magistrates Court ex parte B [1996] AC 487. A witness statement could explain that it would not address particular factual matters because privilege was properly claimed and nevertheless comply with the order.
2. Social-security information. Although the defence and reply might initially have suggested that use of the number was not in issue, the claimant’s later letter potentially put that matter in issue. The Master and Sharp J were therefore reasonable in treating the requested information as appropriate. The Court of Appeal declined to intervene.
3. Apparent bias. The ordinary rule is that an objection cannot ordinarily be based merely on a judge’s previous instructions to act for or against a party, solicitor or advocate, as stated in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451 at paragraph 25. The applicable test, from Porter v Magill [2002] 2 AC 357 at paragraphs 102–103, required consideration of all relevant circumstances and whether a fair-minded and informed observer would conclude that there was a real possibility of bias.
4. Procedural approach. The material before the court provided, at most, a suspicion and did not justify the requested search. Any concern should ordinarily have been raised directly with the judge by letter or at a hearing, in an open and appropriately non-aggressive manner. The course adopted by the claimant was inappropriate, so permission to appeal was refused.

• Court of Appeal (Civil Division): On 23 February 2011, dismissed the two appeals and refused the application for permission to appeal: [2011] EWCA Civ 233.
• Queen’s Bench Division: Sharp J made the relevant order on 19 February 2010, including directions concerning disclosure explanations and the social-security number. Eady J refused on 4 May 2010 to order a search for information concerning Associated Newspapers’ previous instructions to Sharp J.