Raab MP v Associated Newspapers Ltd

Confidentiality obligations arising from a settlement should not be displaced merely because a defendant wishes to investigate a possible justification defence to a libel claim. Before a defence is served, the defendant must establish that the confidentiality prevents it from advancing a defence and that interference with the claimant’s contractual rights and access to the court is necessary and proportionate. The public interest in disclosure depends on the facts. It does not automatically outweigh confidentiality. A claimant is not required to surrender more rights than justice requires. The court should also consider the wider effect of undermining confidentiality agreements, which support the settlement of disputes.

The claimant brought a libel action concerning an article alleging that a former employee had received a payment after claiming workplace bullying and had been prevented from discussing her treatment. The defendant sought a stay or strike-out, arguing that the claimant’s refusal to release the former employee and her parents from confidentiality obligations prevented investigation and possible pleading of justification.

The claimant accepted that confidentiality would cease to prevent relevant evidence being given if justification were pleaded and an issue of fact arose. The central issue was whether the claimant had to release the witnesses before service of the defence.

1. Application dismissed. The defendant’s application to stay or strike out the libel claim was refused. The court also declined to order disclosure of the former employee’s witness statement.
2. The authorities relied on by the defendant did not establish that relief was appropriate on these facts. Carpenter v Associated Newspapers Ltd involved an intentional attempt to disable a witness. Ex parte Coventry Newspapers Ltd was materially different because the newspaper could not plead justification without confidential witness statements, and the persons owing the duty of confidentiality did not resist disclosure.
3. A defendant may have Convention rights affected if it is prevented from advancing a defence it wishes to pursue. Here, however, there was no evidence that the defendant was prevented from pleading justification. It had not explained why the identities of its own sources had to remain confidential, and the legal safeguards concerning source disclosure were not engaged.
4. The issue was one of timing. It was accepted that confidentiality would be overridden if the confidential matters became relevant to an issue arising on the pleadings. The defendant had not shown that disclosure before service of a defence was necessary.
5. The public interest in disclosure had to be assessed against the facts. It was not established that it outweighed the contractual confidentiality rights of the parties to the settlement. Striking out the claim would disproportionately interfere with the claimant’s access to the court.
6. The court also considered the wider public interest in preserving settlement confidentiality, including confidentiality in mediations, without-prejudice communications and legal professional privilege. An order of the kind sought could effectively require claimants to permit disclosure before defence in many libel actions and could discourage settlements.