Mitchell v News Group Newspapers Ltd

Third-party disclosure under CPR 31.17 requires a sufficient likelihood that the documents will support or adversely affect a party’s case and a finding that disclosure is necessary for the fair disposal of the proceedings or to save costs. The court retains a discretion whether to order disclosure.

Hearsay which merely duplicates first-hand evidence may add nothing. Evidence of alleged words will not justify disclosure where it has no material probative value on the issues likely to arise. In a case involving police officers acting in their official duties, the public interest in disclosure may outweigh their individual interests, subject to suitable confidentiality conditions.

The judgment concerned a fresh application by Mr Rowland and News Group Newspapers Ltd for disclosure from third parties in related libel proceedings concerning an incident involving Mr Mitchell. The application followed an earlier judgment on applications made on 24 March 2014, reported as [2014] EWHC 879 (QB).

Most of the requested material concerned police officers or persons who had spoken to Mr Mitchell or had become aware of the incident shortly afterwards. One non-police third party objected to disclosure. The central issues were whether the requirements for third-party disclosure under CPR 31.17 were met and how the competing interests of third parties should be balanced.

1. The application was granted in relation to the other third parties, but disclosure of the statements made by third party 1/12-13 was refused.

2. Under CPR 31.17(3), the court must be satisfied that the documents are likely to support the applicant’s case or adversely affect the case of another party, and that disclosure is necessary either to dispose fairly of the claim or to save costs. Even where those criteria are met, the court retains a discretion whether to make the order.

3. The evidence of 1/12-13 concerning a conversation with a police officer was hearsay evidence that a complaint had been made shortly after the events. Since the officer’s own statement was to be disclosed, the additional hearsay was unlikely to add anything. Evidence of a conversation with Mr Mitchell would, at most, concern propensity or similar facts, but was unlikely to have material probative weight on any likely issue.

4. The court’s conclusion was based on the issues then identifiable. If the issues later changed, a further application could lead to a different decision.

5. For the remaining third parties, the statutory criteria were satisfied. Although this was a private libel action, the issues attracted an unusually strong public interest in ensuring that the court had all relevant evidence and documents. The third parties’ legitimate concerns were outweighed by that public interest because they were police officers and the events arose from their official duties. Confidentiality conditions and further protective orders could substantially address their concerns.

• High Court (Queen's Bench Division): Following an earlier judgment on disclosure applications, [2014] EWHC 879 (QB), the court granted the fresh application except in relation to the statements of third party 1/12-13.