Flood v Times Newspapers Ltd & Ors

The Claimant in this libel action is Gary Flood, a police officer. He sues Times Newspapers Ltd in respect of an article in The Times on 2 June 2006, published in hard copy and on the Times website. It was headed “Detectives accused of taking bribes from Russian exiles”. The defamatory meaning of which he complains is essentially that “ … there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect, that the Claimant had abused his position as a police officer … by corruptly accepting £20,000 in bribes from some of Russia’s most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges.”

It was also stated that Mr Boris Berezovsky was a client of an organisation known as ISC, which was run by a friend of the Claimant called Keith Hunter, and that two companies with which Mr Berezovsky was associated had made payments to ISC of the order of £600,000. (Mr Hunter now heads the RISC group of companies, described in the pleadings as “successors” to ISC, which itself no longer exists.) It is right to record that Mr Berezovsky has denied any involvement in the procurement of confidential information.

The Defendant wishes to justify the allegations about the Claimant by reference to the Lucas-Box meaning that he was the subject of an internal police investigation and that there were grounds which, objectively regarded, justified a police investigation into whether he received payments in return for passing confidential information about Russia’s possible plans to extradite Russian oligarchs. This corresponds with what is nowadays sometimes referred to as a Chase level three meaning: Chase v News Group Newspapers Ltd [2003] EMLR 11.

In my experience, pleas of justification on this basis are rare and require careful scrutiny, in order to ensure that the particulars are properly confined. This is a consideration to be borne in mind in dealing with the matters now before the court.

There was an application made on behalf of Mr Berezovsky, by notice dated 17 February 2009, with a view to setting aside, either wholly or in part, a third party disclosure order. It was granted to the Defendant by Master Fontaine on 11 September 2008 against the Independent Police Complaints Commission (“IPCC”). Inevitably, as the order was made by consent, no judicial scrutiny was brought to bear on the criteria to be applied in the exercise of this special jurisdiction. In particular, neither Mr Berezovsky nor any other person whose rights were potentially affected (such as Mr Dubov, who has also been represented before me) were addressed.

It is submitted by Mr Nicklin, appearing on Mr Berezovsky’s behalf, that the order has resulted in the disclosure of a sensitive and confidential document concerning Mr Berezovsky’s affairs, despite the fact that it is acknowledged to be irrelevant to the issues in the libel action.

Mr Nicklin strongly criticises what has taken place and attributes it to “the combination of the unjustifiable width of the Defendant’s third party disclosure application and a conspicuous lack of rigour on behalf of a public authority in discharging its duty to ensure that the interests of privacy/ confidentiality of a third party are properly protected”.

In the course of the hearing Mr Nicklin was shown copies of other documents which had been disclosed by the IPCC pursuant to the 11 September order, of which he had previously been unaware, despite requests made in correspondence by Mr Berezovsky’s solicitors. In the light of that further information, he was compelled to ask for an adjournment of the application relating to the IPCC until he had had an opportunity properly to consider the new material, which he described as “littered” with references to his client. As and when the hearing is resumed, as I understand it, Mr Nicklin will not necessarily be going so far as to ask for the 11 September order to be set aside. He will probably be content to have any sensitive documents shredded. Meanwhile, he continued to address the other application before the court.

There is a further application by the Defendant for third party disclosure, on this occasion against the Metropolitan Police Service (“MPS”). Mr Berezovsky wished to be heard in relation to this application, as an interested party, and Mr Nicklin submitted that in the light of the unhappy experience over the IPCC disclosure, it was entirely appropriate that proper rigour should now be applied to the Defendant’s second application. Quite apart from the rights of the parties to the litigation, and those of the interested parties, it is necessary for the court to have regard to the special nature of this jurisdiction and to ensure, so far as possible, that it is exercised in accordance with appropriate constraint and that the relevant criteria are properly addressed.

In relation to any third party disclosure application, it is always necessary to focus carefully on the pleaded issues in the case. That is because of the nature and scope of the statutory jurisdiction.

It is provided in s.34 of the Supreme Court Act 1981, as amended, that there shall be a power to make such an order, although it is clear that none should be made if the court considers that compliance with it would be likely to be injurious to the public interest: s.35(1). The relevant rule is currently to be found in CPR 31.17:

In the light of this wording, and in particular because of the test of necessity, Mr Nicklin submits that the court should ensure that due rigour is applied in deciding whether or not to grant the order now sought against the MPS. Not only is it appropriate to remember at all times the scope of the issues in the case, as defined by the pleadings, but the Defendant has to show in the particular circumstances that what is now sought, in the schedule to its application, remains “necessary” having regard to the documents obtained on the earlier application against the IPCC. Clearly, for example, any duplication would be inappropriate.

One of the points stressed by Mr Nicklin is that in the present case it is not yet possible to identify the issues definitively, since the pleadings are not complete. On 8 May 2008 the Defendant was given permission to amend its defence, but in the course of the hearing it was made clear by Ms Wilson, acting on its behalf, that there would be a further application to amend at some stage in the near future. As yet, no amendment to the reply has taken place to address the amendments already made. It would obviously be sensible to postpone the service of any amended reply until the defence itself is in final form. Nevertheless, this uncertainty highlights the need for the court to ensure that no order for third party disclosure is made on the basis of either pleadings which are historic or assumptions or speculation as to what the issues are going to be in the future.

Mr Nicklin’s concerns on behalf of his client need to be assessed against the background of warnings given as long ago as 23 May 2008 to the solicitors for the MPS and to the IPCC. There is no doubt that the IPCC was fully aware from the solicitor’s letter of that date of Mr Berezovsky’s genuine concern as to the possible disclosure of private and confidential matters concerning him and the arrangements for his security. Despite this, when the matter finally came to court on 11 September 2008, there had been no notification to Mr Berezovsky of the application or the hearing date. He could not, therefore, be represented and the only legal representation on that occasion was on behalf of the Defendant.

It was in October 2008 that the IPCC provided documents to the Defendant and, on 12 November, Mr Alastair Brett responded on its behalf stating that those documents touching on the confidential affairs of Mr Berezovsky were of no interest for the purposes of the litigation.

On 15 January 2009, however, a communication from Mr Brett to the MPS Legal Department, which was copied to Mr Berezovsky’s solicitors, revealed that the IPCC had disclosed a document which Mr Berezovsky considered to be sensitive, and supplied a copy of it to the Defendant, despite the fact that it was of no relevance to the proceedings.

Mr Berezovsky’s solicitor, therefore, asked the Defendant for a copy of the document on 16 January 2009, but this was declined (on the ground that Mr Brett felt constrained by the terms of CPR 31.22). The document in question appears to have been included in the IPCC disclosure as part of the MPS report on “Operation Narwhal”, which was the name given to the MPS investigation carried out into the Claimant’s activities under the supervision of the IPCC. Nevertheless, in due course, Mr Berezovsky’s advisers obtained a copy from the original authors. For the purposes of this judgment, I need not describe the document in any detail or the reasons why it was considered to be sensitive. All I need say is that Mr Berezovsky’s concerns appear to me to be fully justified.

Accordingly, on 22 January 2009, his solicitors wrote to the IPCC enquiring why it had consented to the disclosure of such a document without giving him any opportunity to make representations – notwithstanding the fact that it had been notified of his concerns in May 2008. The IPCC was also invited to indicate what other documents had been disclosed pursuant to the 11 September order but, until the hearing before me, the information was not revealed.

In the IPCC response of 30 January 2009, one of its lawyers stated that the disclosure would not have been made unless the representatives of the MPS were content. That was because the IPCC took the view that, since the document belonged to the MPS, it would be better placed to make a judgment on whether or not it was “sensitive”. (There seems to be a dispute between the MPS and the IPCC on this matter, as the MPS does not accept that it sanctioned the document’s release.)

Meanwhile, on 30 January, Mr Berezovsky’s solicitors wrote to the Defendant asking for an undertaking that it would destroy any copies of the document concerned and provide confirmation that this had been done. The Defendant’s immediate response, on 5 February, was to decline the undertaking. Eventually, however, on 19 February, Mr Brett offered to shred the document, but on that occasion he also indicated that there was another four page document of a sensitive nature which had been provided by the IPCC. But this too was thought to have no relevance to the libel action. Mr Brett declined, however, to furnish Mr Berezovsky with a copy, although he was also prepared to shred it. This mystery has now been cleared up, since it appears that the four page document was merely part of the sensitive document and not a separate entity.

All that remains, therefore, so far as Mr Berezovsky’s application to set aside the 11 September order is concerned, is for Mr Nicklin to consider the other documents handed over during the course of the hearing and, when he is ready, to make his submissions about them. There is no doubt, on the other hand, that this experience has coloured his judgment, and that of his client, as to the way in which the Defendant’s application for disclosure against the MPS should itself be handled. Ms Wilson queried why it was that Mr Nicklin needed to be so actively involved in the process, since protection had been afforded to his client by the Defendant’s willingness to shred the sensitive document and by the careful provisions incorporated in the draft order, prepared for the MPS application, whereby Mr Berezovsky’s advisers would have an opportunity to see any relevant documents relating to him before they were shown to the Defendant. His concerns could be made clear at that stage. To this Mr Nicklin responded that it was necessary, in order to protect his client’s interests, to ensure that there was no repetition of the mistakes that occurred at the IPCC and that the court should take steps to ensure, on this occasion at least, that the statutory criteria and safeguards are properly applied. It is to these that I must now turn.

It is clear that disclosure against third parties should be regarded as the exception rather than the rule and not simply ordered by way of routine: see e.g. Frankson v Home Office [2003] 1 WLR 1952. Mr Nicklin emphasised the different stages which need to be considered in the light of the authorities.

The first requirement is that any documents sought must be shown to be likely to support or adversely affect the case of one or other party. Thus, the question to be asked in each case is whether they are likely to help one side or the other. The word “likely” in this context has been considered in the Court of Appeal and is taken to mean that the document or documents “may well” assist: see e.g. Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2003] 1 WLR 210.

Secondly, the hurdle must be overcome of demonstrating that disclosure of the documents sought is “necessary” in order to dispose fairly of the claim or to save costs. This only arises for consideration if the first hurdle has been surmounted. Unless the documents are relevant in that sense, it is not necessary to address the test of necessity.

Thirdly, there is a residual discretion on the part of the court whether or not to make such an order – even if the first two hurdles have been overcome: Frankson, cited above, at [13]. It is at this third stage that broader considerations come into play, such as where the public interest lies and whether or not disclosure would infringe third party rights in relation, for example, to privacy or confidentiality. If so, the court must conduct a careful balancing exercise, as the Court of Appeal made clear in Frankson.

Mr Nicklin submits that, if the court only takes into account third party rights at the last stage, one of the consequences would be that any balancing exercise would have to be carried out against the background of assumptions that the document was relevant (i.e. likely to support or adversely affect one party’s case) and that disclosure was “necessary in order to dispose fairly of the claim or to save costs”. A third party, such as Mr Berezovsky, could in those circumstances find himself at something of a disadvantage in making submissions for the purposes of the balancing exercise. He would be confronted with conclusions reached on both “relevance” and “necessity” which were to be treated effectively as data beyond argument.

Mr Nicklin went on to suggest that the court is only permitted to look at the documents in question, if it is thought appropriate, at stage three, by which time relevance and necessity will have already been determined. This was not, however, accepted on all sides. Mr Beer, for the MPS, referred to dicta rather implying, although not in unequivocal terms, that a judge might be permitted to see the documents at stage one: see e.g. Frankson at [19] and [37]. This did not need to be determined, as it happened, since no one invited me to look at the documents and Mr Nicklin was content to address the merits of the Defendant’s application by reference to the statements of case and the categories of documents listed in the schedule to the application.

Despite his concerns, Ms Wilson invited me to rule that Mr Nicklin’s client’s rights and interests would be adequately protected in the light of the precautions put in place between the parties and that he should not, therefore, be permitted to address the court further on the Defendant’s application for disclosure against the MPS on those classes of documents which did not refer to Mr Berezovsky or Mr Dubov. The situation is somewhat unusual, but I declined to shut out Mr Nicklin and took the view that he was entitled, in the furtherance of his client’s interests, to address the court on all the criteria to be fulfilled – not least because the public policy concerns underlying the wording of CPR 31.17, as a whole, include the safeguarding of third party rights.

In any event, the court has a clear obligation to ensure, if necessary of its own motion, that this intrusive jurisdiction is not used inappropriately – even by consent. In exercising its responsibility, the court may well be assisted by submissions made on behalf of any third party the protection of whose interests requires to be considered.

So far, I have concentrated on the submissions of Mr Nicklin and Ms Wilson for what are, I hope, understandable reasons. I was, however, assisted by Mr Beer, representing the MPS, who took an essentially neutral stance but invited my attention, briefly, to certain passages in the authorities. In particular, he referred to Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25, 36H, where Kennedy LJ referred to the need to strike a balance between competing public interests. He also indicated what is, in general terms, the appropriate practice in a case where police are minded to disclose documents affecting a third party. An opportunity should be given to any affected person to take advice and seek assistance from the court.

Mr Beer also invited attention to the judgment of Dillon LJ in Marcel v Commissioner of Police of the Metropolis [1992] Ch 225, 259A-B. This passage was concerned with the steps to be taken where police had been served with a subpoena duces tecum and the desirability of giving the owner of the relevant documents a reasonable opportunity to state his objections, if any, to their being produced pursuant to the subpoena.

These were relevant authorities to have in mind, as illustrating the public policy considerations to be taken into account when the interests of third parties are affected. It is perhaps fair to say that these factors should weigh, if anything, more heavily after the enactment of the Human Rights Act 1998, having regard to the obligations imposed on the court as a public authority.

It goes without saying that those who supply information in confidence to the police, for whatever reason, are generally regarded as entitled to particular consideration before any order is made for disclosure which might put that confidence in jeopardy: see e.g. the observations in Taylor v Serious Fraud Office [1999] 2 AC 177, 219, per Lord Hope.

I will need shortly to address the terms of the schedule in which the Defendant defines the categories of document sought to be disclosed by the MPS. In general, the court must be astute to ensure that the applicant is not conducting a “fishing expedition”; inherent in this proposition, says Mr Nicklin, is the need to demonstrate that the documents sought, or the categories as the case may be, do in fact exist. It is not appropriate to require third parties to go off and investigate whether there are any documents which happen to fit the description. In this context, my attention was drawn to the decision of Pumfrey J (as he then was) in Re Howglen Ltd [2001] 1 All ER 376, 382, where he observed:

Furthermore, it is pertinent to have regard to the observations of the Court of Appeal in Three Rivers District Council, cited above, at [36], where it was reaffirmed that the court has no power to make an order under CPR 31.17 in respect of a class of documents where it is established that there are documents within the class not satisfying the “relevance” threshold (see also American Home Products Corpn v Novartis Pharmaceuticals UK Ltd [2001] FSR 784). The point was also made:

It is elementary, of course, as in relation to the disclosure of documents more generally, that in determining whether a document or class of documents has a potentially relevant bearing on one or more of the live issues in the case, one should focus narrowly on the pleadings as they stand, in order to see how the issues have been defined up to that point. Thus, as I have already pointed out, one cannot be guided by speculation as to how a different case might be pleaded, after a new source of documents is investigated, or as to matters which are merely canvassed in evidence – without being incorporated into a pleading.

Against these background principles, Mr Nicklin did not go so far as to suggest that the application should not be permitted to proceed at all until the pleadings are finalised. But he did emphasise that the provisional and fluid nature of the issues needs to be borne in mind. Just because an allegation has been pleaded in the defence, it does not follow that classes of documents relevant to that allegation will necessarily be disclosable, since it may or may not be admitted by way of the amended reply. The court should thus be careful to ensure that the exercise is driven only by reference to issues that are already crystallised.

Following this analysis, and before turning to the individual categories sought in the Defendant’s schedule, Mr Nicklin took the precaution of identifying the issues relating to the plea of justification as they currently stand. He set them out as follows:

It matters not, for present purposes, whether Mr Nicklin has definitively summarised the issues on justification. What he was seeking to do by this exercise was to emphasise how narrow the focus should be when calling upon third parties to produce relevant documents.

Ms Wilson indicated that some of the documents she seeks are intended to relate to the issues raised by the defence of qualified privilege. To this, Mr Nicklin responds that particular scrutiny is required in this context, bearing in mind that, for the purposes of a defence based on the principles outlined in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the merits have to be assessed against the background of the material available to the journalists at or shortly before publication. On the face of it, therefore, it is difficult to see how the defence could be advanced by the provision of documents which they had not seen and were not at any stage in their possession. Such provision is most unlikely to be “necessary”.

Part way through the hearing, Ms Wilson produced a version of the schedule with references given for each category of documents to the part or parts of the pleadings said to give rise to the issues to which they are relevant. I shall refer to this version (although there is no need for me to set out, separately in each category, every passage in the pleadings relied upon).

Category 1:

Mr Nicklin points out that the Claimant has admitted in his reply that he had access to domestic police databases (and indeed to Interpol databases by the use of specific protocols) and, therefore, the inference can be invited without further ado. As to paragraph 7(d)(iv), this allegation was introduced by amendment and has not yet been answered in an amended reply. There is no reason to assume at the moment that there will be an issue. In the light of this, Mr Nicklin argues that the Defendant has not established the groundwork for demonstrating “relevance” at stage one. That would seem to be correct. Mr Nicklin submits that the category is, in any event, simply too broad, since it would necessarily include documents falling outside the criteria of CPR 31.17(3).

Category 2:

In written submissions received on 2 March, Ms Wilson emphasised the importance of the “closeness” of the relationship, which remains in issue; that the closeness of the relationship is material to whether there were grounds to investigate. She added, “The documents sought will show whether the Claimant disclosed this relationship and his joint interests with Mr Hunter to his managers”. By “joint interests” she meant their horse-racing association and the setting up of a joint bank account. With respect, there would seem to be some confusion between the issue of “closeness”, which is largely a matter for argument, and the attempt to obtain documents, showing how much the Claimant disclosed to his managers. As yet, I believe, there is no plea that (a) he had an obligation to disclose details of the relationship or (b) he failed to do so.

Paragraph 7(d)(v) alleges that “it would have been easy and tempting for Mr Hunter to seek police information from his friend in relation to Mr Berezovsky who was an ISC client”; that is said to arise from the nature of the relationship. The allegation has not yet been pleaded to, but since it consists largely of comment or inference based upon the admitted relationship, it is difficult to see how MPS documents could be necessary to advance the case.

Paragraph 8(c) relates to the defence of privilege. It simply sets out chunks of the police Code of Conduct, which have been expressly admitted in the reply. Paragraph 8(d)(ii) and 8(d)(iii) also relate to the defence of privilege. The former refers to serious concern among senior management at MPS as to the relationships between serving officers and retired colleagues working in the corporate investigations business. That is, to all intents and purposes, admitted in the reply.

The latter was added by way of amendment and, therefore, has not yet been pleaded to. It asserts that it is best practice for serving MPS officers to register outside interests and relationships which may give rise to a conflict of interest and/or professional embarrassment. It is a very general allegation, but what the Defendant appears to be fishing for is evidence to support a case not yet pleaded; namely, that the Claimant wrongly failed to register some outside interest or relationship. That would not seem to be consistent with the criterion of “necessity”. Furthermore, the category is so broadly drafted as to be likely to include irrelevant documents in any event.

Category 3:

Category 4:

Category 5:

Ms Wilson relies here primarily on paragraph 7(e) of the defence, which refers to an allegation made in February 2006 by the “complainant” to the DPS, to the effect that Mr Hunter had paid a police officer with the code-name “Noah” for confidential information. It is said that it was this allegation which triggered the investigation under the code-name “Narwhal”. That is not admitted in the reply and the Defendant is put to strict proof. Accordingly, there is at least an issue to which disclosure could be directed.

In her written submissions of 2 March, Ms Wilson made additional reference to paragraph 7(h), which is also raised in connection with Category 6 (below) and relates to the searching of the Claimant’s premises. She argues that paragraphs 7(e) and 7(h) need to be considered together. She says they both go to the issue of whether there was an ongoing investigation into the Claimant prior to 26 April 2006.

The category is nonetheless wide, in the sense that it is almost certain to include irrelevant material. It needs to be demonstrated, to achieve the “necessity” threshold, that further disclosure is required from the MPS despite that obtained from IPCC.

She also points to paragraph 7.1 of the particulars of claim, which raises the question whether it was the Sunday Times journalists who triggered the enquiry. It is relevant in the relatively narrow context of possible impact on the Claimant’s feelings. The category is too diffuse to be characterised as “necessary” for resolving the issue.

Reference is also made to passages in the reply responding to the privilege defence but, as I have already said, that depends on what the journalists had prior to publication – it is not likely to be materially advanced by third party disclosure.

Category 6:

Reference is made by Ms Wilson particularly to paragraph 7(h) which alleges that the Claimant’s home in Bolney, West Sussex, and his office, were searched by Specialist Investigations Unit officers following a meeting between the “complainant” and the DPS and the handing over of a dossier by him on 28 April 2006. This is put in issue in the reply, but in order to achieve the threshold the category needs to be more narrowly focused.

Category 7:

Category 8:

The other point made by Mr Nicklin is that this category, like others, is so widely drawn that it is bound to contain documents that are irrelevant.

Ms Wilson refers again to a number of paragraphs in the pleadings, including again paragraphs 7.1 and 7(e). I have addressed these above, but it is also true in the present context that the issues raised would not justify such a broad request.

Category 9:

Category 10:

As to paragraph 10.4 of the schedule, Ms Wilson highlights paragraph 7.2.3 of the particulars of claim, dealing with damages. The Claimant relies in aggravation of damages upon the Defendant’s persistence in the allegations despite its being informed of his exoneration, following the inquiry, in December 2006. This aspect of the case in itself would not justify disclosure of this wide category.

Moreover, it is clear that these categories are very widely drawn and are thus likely to contain documents that are irrelevant to the issues in the proceedings. For these reasons, it is apparent that the Defendant is unable to discharge its obligation to demonstrate relevance or, for that matter, necessity.

Ms Wilson points again, in respect of all of these sub-categories, to paragraph 7(e) of the defence. I have already accepted that there are issues in the case relating to what triggered the inquiry and the extent to which it was linked to a meeting in February 2006. The problems are, essentially, (a) the overlap with the earlier application against the IPCC and (b) the fact that the sub-categories are too broadly drawn to avoid being characterised as “fishing”.

In so far as she relies on part of the privilege defence, I have already addressed the point that this should depend on what the journalists knew or had in their possession at the time.

Category 11:

Category 12:

Ms Wilson prays in aid in this context paragraph 7(c)(ii) of the defence. This refers to the friendship between the Claimant and Mr Hunter and to their involvement in a syndicate which owned a racehorse. Insofar as any dispute at all arises on these allegations (in paragraph 11 of the reply), I cannot understand how the notes (if any) would assist in resolving it – still less how they could be “necessary” for the purpose.

It may be possible with a more narrowly focused application for the Defendant yet to obtain an order for third party disclosure against the MPS, but the very strict criteria operating in relation to CPR 31.17 do not seem to me to have been fulfilled yet in respect of any of the categories I have considered.

My conclusion, against the background of the circumstances I have described, is that it would not be right to grant the Defendant the order sought against the MPS for disclosure of the categories identified in the Defendant’s schedule.