Noel Anthony Clarke v Guardian News & Media Ltd

Permission to cross-examine an opposing party before trial under Civil Procedure Rules 1998 r 32.7(1) is an exceptional remedy. The discretion must be exercised in accordance with the overriding objective and established principles. It is not broad and unfettered.

Cross-examination should generally be refused where it would pre-empt cross-examination at trial, allow a party prematurely to test or build its substantive case, create unfairness or unequal footing, or fail materially to assist determination of the interlocutory issue. Where the application can be decided on written evidence, or the disputed matters should proceed to trial, permission should ordinarily be refused.

The claimant brought defamation and data protection proceedings against the defendant. He alleged that employees and agents had deleted or fabricated evidence and had thereby perverted the course of justice, making a fair trial impossible.

The claimant applied under Civil Procedure Rules 1998 r 32.7(1) for permission to cross-examine the defendant’s Head of Investigations on a witness statement filed in response to the strike-out application. The proposed questioning concerned evidence retention, deleted Signal messages, and the witness’s state of mind before publication of the articles.

The central issue was whether pre-trial cross-examination was justified in the circumstances.

1. The application for permission to cross-examine was refused. The discretion under Civil Procedure Rules 1998 r 32.7(1) had to be exercised in accordance with the overriding objective of dealing with cases justly and at proportionate cost under r 1.1, together with the established principles identified in Stokoe Partnership Solicitors v Grayson.

2. Although the phrase just and convenient might apply, the discretion was not of infinite width. Oral interrogation of an opposing party before trial was an exceptional measure. The recognised exceptions principally concerned securing the effectiveness of orders made, or expected to be made, by the court, including examination concerning the location of assets.

3. The court had to guard against compelling a party to submit to early additional cross-examination so that the opposing party could test or build its substantive case before trial. Cross-examination should be permitted only where it was exceptionally just and proportionate, having regard to fairness, proportionality and the proper allocation of issues between the interlocutory hearing and the trial.

4. The proposed questioning was not a discrete issue unconnected with the trial. It concerned the journalistic investigation, the creation and retention of documents, alleged dishonesty, and matters relevant to the defendant’s truth and public interest defences and the proposed claim against the witness. Those matters could be explored at trial, including through questions about evidential gaps and any adverse inferences.

5. Pre-trial cross-examination would be unfair, would place the parties on an unequal footing, and would not materially assist the key question whether a fair trial was possible. The claimant either could establish the strike-out application on the written evidence, making cross-examination unnecessary, or could not, in which case the matter should proceed to trial.

6. Accordingly, the application to cross-examine was refused.