In the recent case of Clarke v Guardian News & Media Ltd, the High Court dealt with two important applications concerning the disclosure of documents in the lead-up to a trial. The claimant sought disclosure of certified transcripts of non-privileged conversations and requested the removal of certain redactions from documents, citing legal grounds tied to the protection of journalistic sources. Both applications were refused by the court.
The Facts
The claimant in this case filed two separate applications on the eve of the trial. The first application sought an order compelling the defendant (Guardian News & Media Ltd) to disclose the professional and certified transcripts of audio files that had been disclosed in the defendant’s disclosure process. These transcripts had been obtained for the purpose of the litigation, but the claimant argued they were necessary for a fair trial.
The second application requested that the defendant remove redactions from certain documents. The redactions had been made under the Sexual Offences (Amendment) Act 1992 and the protection offered under section 10 of the Contempt of Court Act 1981. The claimant asserted that these redactions exceeded the protections provided by the law, or that they did not meet the “interests of justice” exception in section 10 of the Act.
Both applications were made very late in the process, on the eve of the trial, which played a significant role in the court’s ultimate decision.
The claimant’s arguments focused on the need for disclosure of the certified transcripts and the removal of redactions to ensure that they had access to all necessary information for a fair trial. The claimant contended that the transcripts were crucial for the case, as they could potentially provide valuable evidence that was not otherwise available. They also argued that the defendant had no valid reason to redact information beyond the protections afforded to confidential sources under the law.
The Court’s Rationale
The court’s decision hinged on several important considerations:
- Non-Privileged Transcripts: The court determined that the transcripts in issue were records of non-privileged conversations and therefore could not be protected by legal privilege. Even though the defendant had obtained these transcripts from a third party for the purpose of the litigation, the court reasoned that the nature of the documents—being transcripts of non-privileged conversations—meant that privilege could not apply.
- Disclosure and Proportionality: The court emphasised the importance of proportionality when it comes to disclosure. Under CPR 31.12.1, while the court does have the power to order specific disclosure of documents, it must first consider whether the disclosure is proportionate and necessary for a fair trial. Given the late timing of the application—on the eve of the trial—the court found that the claimant had failed to establish a compelling need for the disclosure of the transcripts.
- Protection of Journalistic Sources: The court applied the balancing test established under Goodwin v United Kingdom, noting that the protection of journalistic sources under section 10 of the Contempt of Court Act 1981 is not absolute. The claimant’s application to remove redactions was dismissed because they had not convincingly established that disclosure was necessary in the interests of justice. The court applied the balancing exercise required under the law and determined that the protection of journalistic sources outweighed the claimant’s need for the redacted information.
The Decision
The court ultimately refused the claimant’s applications for:
- Disclosure of the certified transcripts: The court found that the transcripts were not privileged, and the claimant had not provided sufficient justification for the disclosure of these documents, especially considering the timing of the application.
- Removal of redactions: The court also refused to order the removal of redactions, finding that the redactions were made in compliance with the relevant legal protections and that the claimant had not convincingly demonstrated that their removal was necessary for the interests of justice.
Conclusion
This case serves as a reminder of the importance of timeliness in making applications for disclosure and the need to carefully balance legal protections such as journalistic privilege with the necessity for fairness in legal proceedings. The court’s decision underscores the principle that the protection of journalistic sources remains a fundamental aspect of the legal system and that any attempt to override this protection must meet a high threshold of necessity in the interests of justice.
How can we help?
Amrik Basra is an Associate in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the above subject, please get in touch with Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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