Noel Anthony Clarke v Guardian News & Media Ltd

Proposed defendants to an application for joinder are respondents because the order sought is against them. They must ordinarily be served and given a fair opportunity to respond. Directions must allow reasonable time for evidence and preparation.

Where an application made shortly before a fixed trial would seriously disrupt preparation or risk losing the trial fixture, the court may adjourn it until after trial, applying the overriding objective and balancing the parties’ respective prejudice. Anonymity and reporting restrictions derogate from open justice and require clear and cogent evidence establishing that they are strictly necessary. Any order must go no further than required to secure its purpose.

The claimant brought libel and data protection claims against Guardian News & Media Ltd concerning eight articles. Shortly before a six-week trial, he applied to join six proposed defendants, add a cause of action in unlawful means conspiracy and amend the damages claim.

The proposed defendants had not been served. The court determined their procedural status, the appropriate timetable, and whether determination should be adjourned. The court also considered applications concerning special measures, anonymity, reporting restrictions and withholding witnesses’ addresses.

1. Joinder application. The six proposed defendants were respondents because the order sought was against them. Under Civil Procedure Rules 1998, r 19.4(2)(b)(ii), the application was made under Part 23; under CPR 23.1 and CPR 23.4, a respondent includes a person against whom an order is sought and the application notice must ordinarily be served on each respondent. The proposed defendants therefore had standing to respond and were entitled, in fairness and the interests of justice, to be served and given a reasonable opportunity to file evidence.
2. The claimant’s proposed timetable was unfair. The proposed defendants required approximately three to four weeks to consider the substantial material and prepare evidence. Listing the application before trial would therefore coincide with, and materially disrupt, trial preparation.
3. Applying the overriding objective, the balance of interests favoured adjourning determination of the joinder and amendment application until after the trial. The existing libel and data protection claims against the current defendant were self-contained and could be tried as listed. The claimant could rely on allegations of fabrication and conspiracy in responding to the defences of truth and publication in the public interest. Liability would be determined at the March trial, with damages and other relief left for later determination. Permission was given to re-amend the claim form to correct the mismatch in the pleaded claim value.
4. Special measures and privacy. Special measures were directed for three witnesses because they would assist them to give their best evidence and were in the interests of the administration of justice.
5. Anonymity, reporting restrictions and withholding orders were justified where clear and cogent evidence established that they were strictly necessary to receive the witnesses’ best evidence or protect their Article 8 rights. Such derogations from open justice had to be no more extensive than required. Those requirements were satisfied for the six named witnesses, the two witnesses whose home addresses were to be withheld, and the seven women whose private and sexual lives might be discussed and who would not give evidence. Their anonymity remained subject to further order.

Not stated in the judgment.