Andrew v News Group Newspapers Ltd & Anor

An application for non-party disclosure under CPR Part 31.17 requires consideration of three matters: whether the documents may well assist the applicant or harm another party’s case; whether disclosure is necessary for the fair disposal of the claim or to save costs; and whether the court should exercise its residual discretion to order disclosure.

A claim to public interest immunity based on possible prejudice to a police investigation requires cogent evidence and a careful balancing of competing public interests. Speculative concerns will not suffice where the documents are central to a fair trial. Disclosure may nevertheless be controlled by targeted redactions, confidentiality obligations and restrictions on use.

The claimant, a professional sports agent, brought proceedings against News Group Newspapers Ltd and Glenn Mulcaire concerning the interception of voicemail messages and the alleged misuse of confidential and private information.

He applied under CPR Part 31.17 for further disclosure from the Commissioner of Police of the Metropolis, including unredacted telephone records, notebooks, contact lists and an email chain. The Commissioner resisted disclosure on grounds of relevance, privacy and public interest immunity, relying on the risk of prejudice to an ongoing police investigation.

The central issues were whether the requested material satisfied Part 31.17 and whether disclosure should be withheld or limited to protect the police investigation and third-party confidences.

1. The court applied the three-stage test under CPR Part 31.17. The claimant had to show that the documents were likely, meaning they may well be, to support his case or adversely affect another party’s case; that disclosure was necessary for the fair disposal of the claim or to save costs; and that the residual discretion to order disclosure should be exercised.

2. Unredacted outgoing call data for the days on which Mr Mulcaire was known to have accessed the claimant’s voicemail was relevant. It could reveal a pattern of calls before and after interception, including possible communications with journalists. The Buroclass notebook, other contact lists and telephone contacts were also relevant insofar as they contained information other than details of victims or intended victims. The adjoining notebook pages were not shown to satisfy the relevance test.

3. The Commissioner’s public interest immunity claim was rejected. Following Arias v Commissioner for the Metropolitan Police, very cogent evidence was required before documents could be withheld because they might hamper a police investigation. The court accepted that police concerns were genuine but found the evidence of tipping-off and destruction of evidence speculative in the circumstances. The civil claims were old, publicised and fixed for trial, and the documents went to the heart of the claimant’s case.

4. The competing public interests had to be balanced. Disclosure was ordered with safeguards, including redaction of known victims’ telephone details, PINs, passwords and account numbers, confidentiality restrictions on telephone information, and coded treatment of previously unpublished names of relevant newspaper staff.

5. The request for broad information about all call records was too wide. Part 31.17 concerns disclosure of documents or classes of documents and does not expressly create a general jurisdiction to require a non-party to identify what documents it holds. The court nevertheless treated the narrower request for incoming records on known interception dates as an application for documents and ordered disclosure of that material.

6. Disclosure was ordered of the specified landline call data, contact lists, the email chain and relevant incoming call records, subject to the stated redaction and confidentiality regime. No order was made for the adjoining notebook pages. The Commissioner was permitted to appeal on the public interest immunity issue, but no stay was granted.

First-instance interlocutory decision. Permission to appeal was granted on the public interest immunity issue. No stay was granted.