Stokoe Partnership Solicitors v Dechert LLP & Ors

Non-party disclosure under Civil Procedure Rules 1998, rule 31.17, is exceptional but may be ordered where documents may well support the applicant’s case and disclosure is necessary for fair disposal or to save costs. The order must identify the documents sufficiently clearly and must not require the third party to understand the underlying litigation. The court retains a discretion to balance disclosure against competing public interests. However, section 10 of the Contempt of Court Act 1981 prevents disclosure of journalistic-source material where there is a serious risk of source identification, including through redaction or explanation, unless a statutory exception is established. A credible journalist’s evidence may discharge that burden. The normal costs rule for innocent third-party disclosure applications remains applicable where both sides acted reasonably.

Two linked High Court proceedings concerned allegations that private investigators had commissioned unlawful hacking connected with investigations undertaken for Ras Al Khaimah. Stokoe Partnership Solicitors and Karam Al Sadeq applied under rule 31.17 of the Civil Procedure Rules 1998 for non-party disclosure from Franz Wild, the Bureau of Investigative Journalism and Times Media Limited.

The December Application sought documents underlying journalistic propositions about hacking allegedly connected with Dechert LLP and its investigators. The October Application concerned information about an alleged attack on Philip Marshall KC; it was later withdrawn after the respondents disclosed that the instruction to hack him had occurred no later than 8 September 2020. The court had to determine the December disclosure application and the costs of the withdrawn October Application.

1. December Application dismissed. The documents sought satisfied the relevance requirement because the respondents’ material concerned a private investigator allegedly instructed by Dechert LLP and might well support the applicants’ cases concerning the Hacking Campaign. Disclosure was also necessary: the applicants were unlikely to obtain the information elsewhere, and disclosure could save the costs and uncertainty of seeking material from India.
2. The draft order was sufficiently clear. It identified documents by reference to the propositions in Mr Wild’s email and did not require the respondents to understand the underlying proceedings. Some judgment in identifying documents was permissible where the order could be approached in good faith and with common sense. The reference to the unidentified .zip file could not operate because the respondents did not recognise it.
3. Section 10 of the Contempt of Court Act 1981 applied. The respondents bore the burden of showing a reasonable chance or serious risk that disclosure would compromise journalistic sources. Evidence from an experienced journalist established that the information could not be disclosed, even in redacted form, and that neither its form nor an explanation for non-disclosure could safely be provided. That evidence was credible and uncontradicted.
4. Absent section 10, the applicants’ fair-trial interest would have outweighed the respondents’ Article 10 rights. Section 10 nevertheless removed the court’s discretion to order disclosure because the applicants disclaimed reliance on any statutory exception.
5. As to the October Application, both parties had acted reasonably. The applicants had reasonable grounds for pursuing the application, while the respondents were entitled reasonably to rely on section 10 and had not acted unreasonably in opposing it. The normal rule under rule 46.1 therefore applied: the applicants were to pay the respondents’ costs.

First-instance decision. The judgment records no prior appellate decision.