Mitchell v News Group Newspapers Ltd

An order for disclosure against a non-party under CPR r.31.17 requires both evidential relevance and necessity for fair disposal of the claim or saving costs. The court must identify the pleaded issues as they stand, particularly where no defence or reply has yet been served. Disclosure may engage the confidentiality and Convention rights of witnesses who supplied information to the police. Those interests must be balanced against the public interest in deciding civil claims on all relevant material. A deferred order with liberty to apply is not an adequate substitute where the court lacks the evidence needed to conduct that balancing exercise.

Two libel actions arose from allegations about an incident involving Andrew Mitchell MP and PC Toby Rowland outside Downing Street. Mitchell sued News Group Newspapers Ltd over a report in The Sun; Rowland sued Mitchell over the allegation that Rowland had lied. Both applicants sought disclosure from the Commissioner of Police of the Metropolis, a non-party, under CPR r.31.17.

The court had already ordered disclosure of some categories. It reserved decision on witness evidence from other officers, persons who spoke to Mitchell shortly after the incident, and interview transcripts concerning the incident. The issue was whether disclosure of those categories could fairly and lawfully be ordered where several statement-makers objected or sought conditions and were not represented at the hearing.

1. The applications for the three outstanding categories of documents were refused. The court was not satisfied on the material before it that an order ought to be made.

2. Under CPR r.31.17, the documents sought must be likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary to dispose fairly of the claim or save costs. The court must specify the documents or classes and address any claimed loss of control or withholding of inspection.

3. An order will rarely be made before a defence, and where appropriate a reply, has been served. The court must focus narrowly on the pleadings as they stand and should not proceed on speculation about a different case that might later be pleaded.

4. The authorities recognise competing public interests where information is supplied to the police: maintaining confidentiality and enabling investigations, and ensuring that civil claims are tried on the relevant material. Frankson v Home Office illustrates that the balance may favour disclosure and that conditions can restrict use and onward disclosure. Its result was reached on common law and equitable principles and did not address the Convention rights relied on in the present case.

5. The Human Rights Act 1998 required a genuine, case-specific balancing exercise because the Commissioner and the court were public authorities and the statement-makers’ private and family lives might be engaged. The affected individuals were not represented, their responses were not in evidence, and several had objected or sought conditions. The court therefore could not properly assess their interests.

6. A deferred disclosure order, coupled with a period for affected persons to apply to set it aside, was inappropriate. It would imply a preliminary adverse conclusion and might discourage representations. The decision was expressly confined to the evidence then before the court and did not determine whether disclosure might be ordered if the statement-makers were joined or represented.

The judgment records an earlier costs judgment in the Mitchell litigation by the Court of Appeal: [2013] EWCA Civ 1537. The present decision concerned applications for non-party disclosure in the High Court and refused the three outstanding categories.