Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor

Disclosure will not be ordered merely because relevant material may later assist a party in separate proceedings. Where disclosure is sought from a non-party, the court must be satisfied that the requirements of CPR 31.17(3) are met, including necessity for the fair disposal of the claim or to save costs.

Where confidentiality and Convention rights conflict, the court must conduct a fact-sensitive balancing exercise. The exercise cannot properly be undertaken before the issues in the related proceedings, the parties’ cases and the need for particular documents are sufficiently defined.

The claimants, law-enforcement agencies, sought an injunction and other relief concerning confidential information allegedly leaked to the defendant publishers. The publishers wished to use material already obtained in defending a related libel claim and sought further disclosure from the claimants.

The remaining issue was whether the claimants should disclose documents which might be obtainable on a properly formulated third-party disclosure application in the libel proceedings.

1. The application for further disclosure was refused. On the information available, the court could not be satisfied that disclosure was necessary to dispose fairly of the libel claim, as required by CPR 31.17(3)(b).

2. The claimants were not required to disclose documents for use in the libel proceedings merely because they had commenced the present proceedings. Any application under CPR 31.17 should be made when the related proceedings and the parties’ cases were sufficiently developed.

3. The court was required to perform the fact-specific balancing exercise described by Lord Steyn in Re S. That exercise could not properly be conducted on the limited information then available. The publishers’ inconvenience did not outweigh the inconvenience to the claimants and the public caused by diverting law-enforcement resources to disclosure.

4. The original and proposed amended Reply were properly understood as legal argument rather than an admission of fact.

The disclosure application was refused.