Henry v News Group Newspapers Ltd & Ors

An order for third-party disclosure requires proof of two separate conditions: the documents must be likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary for the fair disposal of the claim or to save costs. The jurisdiction is exceptional and intrusive. The court must scrutinise the specified documents or classes carefully, reject broad or fishing requests, and avoid ordering disclosure merely because material may provide background or assist cross-examination. Where the criteria are met, relevant confidential material may be ordered, but existing knowledge or alternative disclosure may defeat necessity.

The claimant brought a libel claim against News Group Newspapers Ltd concerning allegations about her conduct as a social worker before Peter Connelly’s death. The newspaper sought third-party disclosure under CPR 31.17 from the Whittington Hospital NHS Trust and the Commissioner of Police of the Metropolis to assist its justification defence.

The remaining applications concerned police internal management reviews, interview notes and correspondence with social services, together with medical records held by the Trust. The central issues were whether the documents were likely to assist the applicant’s case or harm another party’s case, and whether disclosure was necessary to dispose fairly of the claim or save costs.

1. Applicable test. The application was governed by CPR 31.17. The applicant had to establish both that the documents were likely to support its case or adversely affect another party’s case, and that disclosure was necessary to dispose fairly of the claim or to save costs.
2. The first condition was concerned with relevance in that specific sense. Disclosure was not justified merely because documents might assist an adversary. The necessity condition was separate and had to be proved independently.
3. The jurisdiction was exceptional and intrusive. It was not routine. The court had to scrutinise the documents or classes sought strictly, remain alert to unnecessarily broad categories and reject requests having the character of a fishing exercise. Documents supplying only background or potentially useful cross-examination material did not satisfy the test.
4. As to the Commissioner, disclosure of the internal management reviews was refused because necessity had not been shown. Notes concerning officers with no relevant involvement were irrelevant. Notes concerning other officers could not be assessed until located. The correspondence category consisted of material already disclosed or already supplied from another source, so further disclosure was unnecessary.
5. As to the Trust, most of the medical records were irrelevant, already known, administrative, or duplicative of evidence from the criminal trial. Disclosure was ordered of the entries recording a message left for the claimant on 12 January 2007 and a contact with social services by J Carroll, because those items appeared to contain new information relevant to the issues. The other identified entries did not satisfy the relevance or necessity criteria.
6. The request for a restriction on use under CPR 31.22(2) did not arise because the relevant documents were not otherwise ordered to be disclosed.

First-instance decision. No prior appellate decision is stated in the judgment.