Stocker v Stocker

A request for further information under CPR Part 18 must be reasonably necessary and proportionate to enable the requesting party to prepare its case or understand the case it must meet. It is not a device for investigating whether a party can formulate an unpleaded defence, including consent, justification or abuse of process.

Requests directed to a non-party’s motives, or to speculative matters which may strengthen a proposed defence, are fishing and fall outside the proper function of Part 18. Information which will ordinarily be covered by witness statements should not generally be compelled prematurely.

The claimant brought a defamation action against his former wife concerning statements published in a Facebook exchange and in an email. Before serving a defence, the defendant sought further information under CPR Part 18 about the motives and conduct of a third party involved in the Facebook exchange, and about when and how the claimant became aware of the publication.

The claimant resisted the requests as improper, unnecessary and disproportionate. The court had to determine whether the requests were properly directed to matters in dispute and were reasonably necessary and proportionate to enable the defendant to prepare her case or understand the case she had to meet.

1. The application for answers to the Part 18 request was dismissed, with costs agreed at £7,000. The defendant was directed to file and serve her defence by 19 September 2014, and the claimant his reply by 17 October 2014.
2. CPR Part 18.1 permits the court to order clarification or additional information about a matter in dispute. Paragraph 1.2 of the Practice Direction requires a request to be concise and strictly confined to matters reasonably necessary and proportionate to enable the first party to prepare its case or understand the case it has to meet.
3. The requests concerning Ms Bligh’s motives and intentions were impermissible fishing. They were designed to discover whether the defendant could make out possible defences, rather than to clarify the claimant’s pleaded case. A party may plead the proposed defences on the information already available.
4. The fact that answers might help avoid a justification defence did not supply a proper litigious purpose. That was speculative. The constructive, cost-saving purposes identified in Dee v Telegraph Media Group Ltd and Harcourt v Griffin were materially different.
5. The requests concerning the claimant’s awareness of the Facebook exchange might eventually bear on damages, but they were not presently necessary or proportionate. Those matters would in any event be addressed in the claimant’s witness statement. Part 18 should not be used to compel information prematurely merely because it may assist a proposed defence or application.
6. The older law on interrogatories illustrated the prohibition against fishing, but the governing test was the wording of the CPR and its Practice Direction.