Noel Anthony Clarke v Guardian News & Media Ltd

Specific disclosure of documents already held by a party depends on relevance, necessity for the fair disposal of the proceedings and proportionality. A late, broad request for a large volume of material is unlikely to satisfy that test where the applicant gives no focused explanation of its importance and disclosure would disrupt an imminent trial.

A transcript of a non-privileged conversation does not become protected by litigation privilege merely because it was obtained for litigation. Disclosure of a confidential journalistic source, or information supplied by such a source, requires necessity in the interests of justice or another statutory ground. The applicant bears the burden of establishing that necessity convincingly and proportionately, having regard to less invasive alternatives and the high public importance of source protection.

The claimant brought two applications during the liability trial of his claim against the defendant media organisation. He sought disclosure of professional certified transcripts of 142 audio files and removal of redactions said to fall outside the protection of the Sexual Offences (Amendment) Act 1992 and section 10 of the Contempt of Court Act 1981.

The defendant had disclosed audio files and contemporaneous transcripts in part, but withheld some recordings on source-protection grounds. It had later obtained certified transcripts, which were not finalised and which it said it did not intend to use at trial. The central questions were whether the transcripts were privileged, whether specific disclosure was necessary and proportionate, and whether the claimant had established grounds for overriding source protection.

1. Transcripts application. The defendant was not obliged to obtain professional transcripts for standard disclosure. The court nevertheless had power to order specific disclosure under CPR 31.12.1.
2. The certified transcripts were not protected by litigation privilege. The conversations recorded were non-privileged. A transcript of such a conversation could not acquire privilege merely because it had been obtained from a third party for the purpose of litigation. The reasoning in Property Alliance Group Limited v RBS Plc (No 3) and Parry v News Group Newspapers Limited applied.
3. The order sought was refused. The claimant had not explained why all 142 transcripts were necessary for the fair disposal of the liability trial or materially important to the issues. The application sought a mass of unfinished material, would require substantial review and redaction, and was made only four working days before trial despite the claimant’s earlier knowledge of the issue. Disclosure would therefore be disproportionate and disruptive. A narrower, focused application supported by compelling evidence might have been different.
4. Redactions application. Section 10 of the Contempt of Court Act 1981 protects confidential journalistic sources and may also protect information supplied by a source even where the source is identified. Once the publisher raises section 10 on a proper basis, the applicant bears the burden of showing that disclosure is necessary in the interests of justice, national security, or the prevention of disorder or crime.
5. Section 10 operates alongside Article 10 of the Convention and section 6 of the Human Rights Act 1998. The court must apply a strict proportionality assessment. The importance of source protection is high, necessity must be convincingly established, and there must be no reasonable less invasive means of achieving the applicant’s aim.
6. The claimant’s broad challenge to redactions was unsupported by focused evidence, was made on the eve of trial, and did not establish necessity. The redactions application was therefore refused.