Collins Stewart Ltd & Anor v The Financial Times Ltd

On 8^th December 2005 I dealt with a number of issues at a pre-trial review. Largely because of time constraints, I was invited by the parties to rule on the remaining issues in the light of their written submissions. That is the purpose of this judgment.

The outstanding points all concern applications on the Claimants’ part for further information or disclosure.

First, there is a request for further information as to the content of telephone calls between Mr Tassell and Mr Middleweek on Friday, 29^th August 2003. What is sought is, as accurately as possible, the words used by the parties and disclosure of any notes of the conversations. It is submitted that the Claimants are not entitled, since the contacts on that date are said not to be relevant to any issue in relation to the articles complained of.

The Claimants rely upon the evidence of Mr Roderick Christie-Miller in his fifth witness statement. He points out that the request followed disclosure from the Defendants of telephone records indicating that Mr Tassell and Mr Middleweek spoke on several occasions on 29^th August. The Defendants later confirmed that telephone records had been redacted to exclude irrelevant material. Ergo, says Mr Christie-Miller, the fact and content of the 29^th August telephone calls must be relevant. In any event, reliance is placed on the article published after those communications (“Collins Stewart rejects former analyst’s allegations”) in support of their defence of qualified privilege. It is said that the Claimants’ side of the story was covered at considerable length. That is clearly relevant to one of Lord Nicholls’ Reynolds criteria. I rule, for those reasons, in favour of the Claimants’ applications.

Secondly, the Claimants seek information as to the number of occasions on which each of the four articles was accessed on www.ft.com. This is said to be disproportionate and of marginal relevance (going only to damages). According to the Defendants, assembling that information would cause considerable difficulties for them.

The point is dealt with in Mr Christie-Miller’s fifth witness statement at paragraphs 32 to 34. He indicates that inadequate information has been supplied so far in the witness statement of a Mr Bratton from the Defendants’ IT department. That identifies only the number of “hits” on the second, third and fourth articles subsequent to publication. It is said that the Claimants are entitled to full details because the information would be relevant to the defence of qualified privilege. The Claimants are entitled to proceed, in the absence of any evidence to the contrary, on the basis that there were a substantial number of hits on all the articles. It seems to me that to press for details in those circumstances is disproportionate.

Thirdly, there is a request for information about a conversation between Mr Johnson and the Claimants’ Mr Terry Smith. Mr Johnson has said that Mr Smith “went on to comment briefly on some of the particular allegations made by Mr Middleweek”. The Claimants wish to have as much detail as is available about the comments attributed to Mr Smith. The Defendants’ response is that Mr Terry Smith himself, in paragraph 31 of his witness statement, accepts that Mr Johnson’s notes accord with his own recollection “so far as they go”. The Claimants are in my judgment entitled to press for any information available as to what Mr Smith is supposed to have said (if anything) over and above what appears in the notes.

Fourthly, the Defendants’ Ms Hollinger in paragraph 10 of her second statement refers to research conducted into Mr Middleweek. What the Claimants now seek are copies of all documents comprising that research, as well as information as to when it was started and completed. It is said to be disproportionate.

The matter is dealt with in the seventh witness statement of Christie-Miller at paragraph 14. Plainly, in my judgment, the Claimants are entitled to know the full extent of the Defendants’ knowledge about Mr Middleweek and his reliability up to the time of publication. That is relevant to Lord Nicholls’ Reynolds criteria. The Defendants’ case is that their search revealed no “concrete reason” to believe that Mr Middleweek was being dishonest. That clearly invites further inquiry. I therefore uphold the Claimants’ application in this respect.

Fifthly, Ms Hollinger in paragraph 15 of the relevant witness statement refers to a number of companies identified in the FSA document. She said that the only company willing to speak “on the record” was Milestone. The Claimants seek clarification as to whether any other companies named in the FSA document were approached and, if so, who was contacted in each case, and by whom at the Financial Times the approach was made. The Defendants’ answer to this is that the Claimants are seeking information about “a statement of intent” and it is therefore irrelevant. I do not follow this. Again, it seems to me that the Claimants are entitled to what they now seek.

Sixthly, the Claimants are pursuing a request for a “skeleton” of the article “More than half of Collins Stewart IPOs under perform indices” published on 28^th August 2003. This is referred to in one of Mr Tassell’s witness statements at paragraph 41. The Claimants are entitled to disclosure of it.

Seventh, the Claimants also seek drafts of the article “Analyst throws down the gauntlet”, and all notes or other documents taken, made or sent in respect of it. Although the article is not complained of, it is relied upon in support of the qualified privilege defence. The Claimants also seek disclosure of the collation of quotations from fund managers, intended for use in connection with that article, as referred to in paragraph 55 of Mr Tassell’s second statement. The Defendants’ reaction is that the Claimants are not entitled and/or that the request is disproportionate.

Mr Christie-Miller deals with this in his seventh witness statement at paragraphs 24 and 34-35. What he says is that Mr Tassell (at paragraph 57 of his statement) suggests that the “Unexploded Bomb” article was “fair and balanced, all the more so for the adjacent piece on Middleweek” (i.e. the “Gauntlet” article). Save in so far as it would involve disclosing sources (a matter which I dealt with in one of my rulings at the case management conference), it seems to me that, for the reasons he gives, the Claimants are entitled to the information they seek.