Noel Anthony Clarke v Guardian News and Media Limited

A pre-action deletion of documents justifies striking out a statement of case only where the deletion amounts to perversion, or attempted perversion, of the course of justice and has made a fair trial impossible. The strike-out jurisdiction is corrective and proportionate, not punitive. The court must consider access to justice, including the rights protected by article 6 of the Convention.

An allegation of perverting the course of justice requires an act with a tendency to pervert the course of justice and an intention to do so. Serious allegations of fraud or other discreditable conduct must be proved on the balance of probabilities by appropriately cogent evidence.

The claimant brought defamation and data protection claims concerning eight articles published by the defendant. The defendant relied, among other matters, on the statutory public interest defence under section 4 of the Defamation Act 2013.

The claimant applied to strike out the Amended Defence under CPR 3.4(2), alleging that employees of the defendant had deleted relevant electronic communications and fabricated replacement evidence, thereby perverting or attempting to pervert the course of justice. The application also raised whether any deletion made a fair trial impossible.

1. Application dismissed. The application to strike out the Amended Defence failed both because there had been no perversion or attempted perversion of the course of justice and independently because a fair trial remained possible.
2. For pre-action document destruction, the claimant had to establish both that the destruction amounted to perversion, or attempted perversion, of the course of justice and that it had prevented a fair trial from being possible. That conclusion was consistent with the reasoning in Douglas v Hello! Ltd (No.3) and the proportionality analysis discussed in Dadourian Group. The strike-out jurisdiction could not be used as punishment.
3. The ingredients of perversion of the course of justice were an act or series of acts having a tendency to pervert, intended to pervert, the course of justice. A course of justice had to have been embarked upon, in the sense that proceedings were in being or imminent, or investigations capable of bringing proceedings about were in progress.
4. The applicable standard was the balance of probabilities. In view of the inherent improbability of fraud or other discreditable conduct, cogent evidence was required, with the necessary strength depending on the specific allegation and circumstances.
5. The surviving Signal threads, the limited auto-deletion and the attempted deletion of two threads did not show conduct having a tendency to pervert the course of justice. In any event, the journalists lacked an intention to pervert it. They had acted before a litigation hold was issued and were entitled to follow the legal department’s approach to document preservation.
6. The fabrication allegation had no evidential foundation. Deletion was not fabrication, and the claimant ultimately did not allege that any false document had been created. The deletion of a small number of peripheral documents did not make a fair trial impossible, given the extensive documentary and witness evidence available for trial.

First-instance determination of an application to strike out the defendant’s Amended Defence. The underlying claim remained listed for trial.