Abbas v Yousuf & Anor

An application for non-party disclosure in a libel action is premature where the defendant has not served a defence. Until then, the defendant has no pleaded “case” which the documents can support or adversely affect for the purposes of CPR r.31.17.

The court must focus on the issues defined by the pleadings and must not permit disclosure to be used to search for a possible defence. Even where the rule’s express conditions appear satisfied, the court retains a residual discretion. It must balance the need for a fair disposal of the claim and the saving of costs against privacy and confidentiality, including the proportionality of interference with a non-party’s private life.

This was a libel action brought by Abbas v Yousuf & Anor concerning publication of allegations that the claimant had a history of violence against women, including his former wife. Default judgment had been entered against the defendant and later set aside by consent.

The defendant, who had not served a defence, applied under CPR r.31.17 for disclosure from the claimant’s former wife of medical records held by her general practitioner. He believed that the records might support a defence of truth, relying partly on material obtained by the Crown Prosecution Service in discontinued criminal proceedings. The central issue was whether disclosure could properly be ordered before a defence had been pleaded.

1. Application dismissed. The defendant’s application under CPR r.31.17 failed because it was premature. Until a defence had been pleaded, he had no “case” within the meaning of r.31.17(5)(a) which the requested documents could support.
2. The ordinary sequence in a libel action is that a defendant must first plead a defence of truth, if available, and may then seek disclosure relevant to the pleaded issues. A defendant is not entitled to search the claimant’s or a non-party’s documents in the hope of discovering a defence. That approach was supported by Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148 and Taranissi v BBC [2008] EWHC 2486 (QB).
3. For non-party disclosure, the court should focus narrowly on the pleadings as they stand. It should not proceed on speculation about a different case which might later be pleaded or on matters canvassed only in evidence. The same principle was stated in Flood v Times Newspapers Ltd [2009] EWHC 411 (QB); [2009] EMLR 18.
4. Even if the defendant had pleaded truth, the evidence before the court did not establish that the records were likely to support his case or adversely affect the claimant’s case. The court also rejected the suggested contradiction in the former wife’s statements and declined to speculate about the material which had led to the criminal prosecution being discontinued.
5. Independently, disclosure would not have been necessary to dispose fairly of the action or save costs. It would instead have been an unnecessary and disproportionate interference with the former wife’s private life. This reflected the residual discretion and balancing exercise identified in Frankson v Home Office [2003] 1 WLR 1952.