Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

The Claimants apply, under CPR 31.17, for an order requiring the Commissioner of Police of the Metropolis (“the MPS”) to disclose documents generated during Operation Fishpool, said to record what Mr Stephen Wright told the police, in November 2007, concerning the source of information used in the Daily Mail article, published on 8 November 2007 (referred to by the Claimants as “the Fourth Unlawful Article”).

The application is opposed by the Defendant, Associated Newspapers Limited. The MPS does not object to disclosure, but that is not determinative: the jurisdiction under CPR 31.17 is exceptional and the Court must be satisfied that the conditions under the rule are met and that it is appropriate to exercise its discretion.

CPR 31.17 relevantly provides:

“(3)

The court may make an order under this rule only where–

(a)

the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b)

disclosure is necessary in order to dispose fairly of the claim or to save costs.”

4. It is well established that disclosure against non-parties is the exception rather than the rule. The requirement of necessity reflects the fact that third parties are strangers to the litigation and should not be drawn into it unless the interests of justice clearly require that course: Omers Administration Corp -v- Tesco PLC [2019] EWHC 109 (Ch) [79].

Even if the threshold requirements are met, the Court retains a discretion whether to make the order sought.

The application arises in the context of Baroness Lawrence’s claim in respect of the Fourth Unlawful Article. The pleaded issue for determination is whether the information published in that article was obtained by Mr Wright by way of a corrupt payment to a police officer, allegedly via Mr John Ross.

Mr Wright’s evidence at trial, and Associated’s case, is that the information was obtained from a police officer who was not part of the investigation team and who was not paid. The Claimants seek disclosure of Operation Fishpool documents said to bear on whether Mr Wright previously told the police that his source was not a police officer.

I am not satisfied that the documents sought are likely to support the Claimants’ case or adversely affect the Defendant’s case within the meaning of CPR 31.17(3)(a).

The documents are not directed to the central issue the Court must determine, namely whether the information in the Fourth Unlawful Article was obtained through corrupt payments to a police officer via Mr Ross. At their highest, the documents go to whether Mr Wright may have given an inconsistent account, in 2007, of the nature of his source.

That is a matter going solely to credit. Establishing that Mr Wright may previously have denied having a police source does not, without more, advance the Claimants’ pleaded case that the information was obtained by corrupt means. Nor does it materially undermine the Defendant’s case on that issue.

The fact that the documents may be deployed to challenge Mr Wright’s consistency or reliability does not render them “likely” to support the Claimants’ case within the meaning of the rule. CPR 31.17 is not a mechanism for obtaining third-party disclosure simply to conduct collateral attacks on credibility.

Even if the relevance threshold were met, I am not satisfied that disclosure is necessary to dispose fairly of the claim or to save costs.

The Claimants have been able fully to explore the alleged inconsistency in Mr Wright’s accounts through cross-examination, including by reference to DCI Driscoll’s evidence at the Leveson Inquiry and his witness statement in these proceedings. The absence of the Operation Fishpool documents has not prevented the Claimants from putting their case.

The trial of this issue can be fairly determined without this disclosure. The documents are not necessary to resolve the pleaded issues, and their absence does not create any forensic unfairness.

Finally, the application is also made at a very late stage. The Claimants have been aware for several years of DCI Driscoll’s Leveson evidence and of the alleged inconsistency on which they rely. They knew, at the latest by the exchange of witness statements, that this was an issue they wished to pursue.

Granting the application now would risk disruption to a trial that has already significantly exceeded its time estimate, including the potential recall of Mr Wright. That disruption would be wholly disproportionate to the limited and peripheral utility of the disclosure sought.

I also note that the Court has previously declined to permit the Claimants to pursue lines of case or disclosure directed to whether Mr Wright misled the Leveson Inquiry, on the basis that such matters are a distraction from the issues to be determined at trial. The present application risks resurrecting that same impermissible focus.

For these reasons, the Claimants’ application for third-party disclosure against the MPS is refused.