Taranissi, R (on the application of) v Human Fertilisation and Embryology Authority

MR JUSTICE SAUNDERS: This is an application under CPR 5.4 (2) by the BBC for copies of documents in the court file of an application by Mr Taranissi for permission to seek judicial review of a decision by the Human Fertilisation and Embryology Authority. In that judicial review permission hearing, permission had been initially refused on paper but was granted after a fully contested permission hearing before Mr Justice Mitting. Subsequently, it appears that that action was compromised by the parties.

The BBC were not a party to that action but they are the defendants to a libel action brought by Mr Taranissi arising out of a Panorama programme which purported to investigate the activities of Mr Taranissi. In that libel action the BBC have pleaded justification. There are a number of part heard applications going on in front of Mr Justice Eady in relation to the libel action including, I believe, applications for discovery.

The BBC make this application as a non party under CPR5.42. The BBC believe, it seems to me for good reason, that it is likely that the court file of the judicial review proceedings contains documents relevant to the issue of justification in the libel action.

Notice of this application has been served on both Mr Taranissi and the Human Fertilisation and Embryology Authority as being the parties to the original judicial review hearing. The Human Fertilisation and Embryology Authority do not oppose the application on the basis of undertakings being given by the BBC which they have already indicated they are prepared to give. Mr Taranissi, while indicating through his solicitor in correspondence an intention to oppose the application, has not attended. His solicitor originally asked the BBC to adjourn the case so that counsel who had been involved in the judicial review proceedings could attend this hearing. The BBC were prepared to accommodate a short delay but not one of the length which had been necessary to assure her attendance.

No application to adjourn has been made to the court on that basis by Mr Taranissi and he has not pursued his opposition at this hearing. There was a suggestion made at one stage by Mr Taranissi's solicitor that this application should also be heard by Mr Justice Eady along with the application for the libel action. Whilst superficially attractive, as Mr Justice Eady has a much better knowledge of the issues in the libel action than I, that suggestion has not been pursued before me by Mr Taranissi; and indeed the issues are not the same as to whether to order disclosure in a libel action as to whether to allow inspection of the court file on an application under 5.4C2. There seems therefore no valid reason why I should put off or adjourn to Mr Justice Eady consideration of this application.

In their application, the BBC have identified the general class of document that they wish to see. I am satisfied that this is not an exercise to look through the whole of the court file to see if there is anything in it which might possibly assist which could probably be described as a fishing expedition. The reason for the application is not directly concerned with obtaining publication in the public interest or in pursuit of the principle of open justice; it is clearly to assist the BBC in their libel action. Indirectly it is concerned with the public interest because that public interest is the basis of the plea of justification in the libel action. In any event, I am satisfied on the authorities to which I have been referred that an application for disclosure for the purposes of collateral litigation does not mean in any sense that the order cannot be made.

These documents were all put before Mr Justice Mitting in a public hearing. They were all documents which were at least referred to during the course of that hearing although, of course, it cannot be said that the judge had read them from start to finish; but they were put before the judge as being relevant matters to put before him for the purpose of making his decision. This was, of course, an application for permission for judicial review made in open court to which the public are perfectly entitled to have access so as to understand why the order was made as it was. As the application to Mr Justice Mitting was an application for permission, the judgment is short and does not refer in terms to many or any of the documents which are referred to in this application, but nevertheless they were matters which he would have considered directly or indirectly in the course of reaching his decision. If the file contains details relevant to the issue which are likely to be contested in the libel action, and it seems likely to me that they will contain details which are relevant to those issues, then it seems to me to be clearly in the interests of justice that both parties to the libel action should have access to them; of course, Mr Taranissi will have had access to them already.

Accordingly, I grant the application and make the order as asked.

MR BARCA: I am very grateful. Would it assist the court if we draw up a minute of the order?

MR JUSTICE SAUNDERS: It would assist me inordinately.

MR BARCA: My Lord, I am grateful. We will get the details perhaps from your associate and arrange it. Is your Lordship emailed in that regard?

MR JUSTICE SAUNDERS: Absolutely, yes. Do you have my email address?

MR BARCA: I am conscious of the time. There is just one matter arising, it is more a matter of mechanics and it is often tidal country that barristers and judges are not aware of what goes on in the offices.

MR JUSTICE SAUNDERS: We just make the orders.

MR BARCA: We just make the orders, but actually there should be no doubt as to when one tries to put the order into effect so that the Administrative Court listing office has the mechanisms in place to allow the court file to be retrieved, and documents produced from it, in accordance with the order.

MR JUSTICE SAUNDERS: If you have any difficulty, I hope and I assume that you will not have, except that they are swamped with work, but apart from that, if you do have any difficulty then when you have the email, pass it on to me and I will try and sort it out.

MR BARCA: What I was going to suggest is having a rider to the order saying that permission to apply to your Lordship in writing for guidance in the event of difficulties.

MR JUSTICE SAUNDERS: Certainly, include that in the order.

MR BARCA: I am very grateful.

MR JUSTICE SAUNDERS: Thank you very much for your help.