There have been several recent cases concerning the laws of confidence and defamation that address important procedural issues relevant to litigators practising in all spheres. This article discusses decisions by the Court of Appeal, a Queen’s Bench judge and a Master.
Mohamed, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) 
The judgment by the Court of Appeal in Mohamed confirmed that:
- a judge is not bound by the terms of a draft judgment circulated in confidence;
- in exceptional circumstances, a court may properly be invited to reconsider substantive parts of its draft judgment; and
- all communications relating to a draft judgment are confidential, although in exceptional circumstances confidentiality can be waived if doing so would be in the public interest.
Binyam Mohamed, a UK resident, had been detained as a result of terrorism charges in the US. In the course of his criminal proceedings, he sought to withdraw confessions made while he was being held in detention centres such as Guantanamo Bay, on the basis that these confessions had been obtained by torture.
Mohamed applied for judicial review of a decision by the Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary) not to provide certain information that he argued was relevant to his defence against the terrorism charges. The High Court ordered the Foreign Secretary to provide disclosure of documents and information about the detention, treatment and rendition of Mohamed by the US government.
The Court of Appeal subsequently dismissed an appeal against a decision of the Divisional Court to unredact seven paragraphs of the judgment relating to the disclosure application. A draft judgment was prepared and circulated to the parties’ legal representatives. The Court of Appeal then received a letter from the leading counsel for the Foreign Secretary asking that parts of one paragraph of the draft judgment be amended as a result of the nature of the criticism levelled against the security services. The changes were made but the other parties (who, it transpired, may not have received notice of the Foreign Secretary’s request) objected. The Court of Appeal held that it would consider these objections and formalise paragraph 168 after handing down judgment. On the same day, a QC’s letter written on behalf of the Foreign Secretary was widely published in the press.
As a result of the unusual circumstances of Mohamed, the Court of Appeal handed down a further judgment to explain what had happened and address whether the original unredacted wording of paragraph 168 should be made publicly available. It was held that paragraph 168 should be reinstated, and that both this and the finalised wording of paragraph 168 should be included in the judgment.
Key issues considered in the Court of Appeal’s judgment, which are relevant to all litigators, were whether it was permissible to amend the draft judgment, and whether the draft judgment and related correspondence should have remained confidential.
In considering whether it was permissible to amend the draft judgment, it was held that a judge is not bound by the terms of a draft judgment circulated in confidence. The main reason judgments are circulated in advance is to enable any typographical or similar errors to be notified to the court. In general, the circulation of draft judgments is not intended to provide an opportunity for parties to re-open or re-argue the case, repeat submissions made at the hearing or make new arguments. However, in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft. The Court of Appeal gave the example of a judgment containing detrimental observations about an individual or their lawyers that, on the face of it, were not necessary. It stressed that an invitation to go beyond the correction of errors such as typos is always exceptional and, when such a course of action is proposed, it is a fundamental requirement that all other parties should be immediately informed to enable them to make any objections to the proposal.
In considering whether the draft judgment and related correspondence should have remained confidential, it was held that it is not only draft judgments that are confidential but all communications relating to them. Mohamed was described as a case of ‘high exceptionality’, which justified the disclosure of the draft judgments and correspondence. Essentially, this was because some of the information had already entered the public domain (and so it had lost the necessary quality of confidence) and there was a strong public interest in disclosing the draft judgments to dispel any lingering public perception of ministerial interference in the court process. In short, the public interest in the documents was sufficient to justify overriding the obligations of confidence. This is the conventional test applied when considering whether obligations of confidence should be protected.
Mohamed provides useful guidance on the status of draft judgments, and correspondence relating to them, that both lawyers and their clients should be aware of.
Mireskandari v Associated Newspapers Ltd 
Mireskandari, which took place before the Queen’s Bench Division, is a salutary reminder of the need to carry out disclosure correctly at the outset of proceedings. It provides an example of the potentially grave consequences of documents being incorrectly withheld from disclosure.
The claimant, Shahrokh Mireskandari, was a former solicitor who used to be the senior partner at the law firm Dean & Dean. He brought libel proceedings in respect of nine articles against Associated Newspapers Ltd, who published the Daily Mail, London Lite and the Evening Standard. It was said that the articles alleged that Mireskandari had committed fraud, acquired bogus academic and legal qualifications, and employed a serving Metropolitan Police Service (Met) officer as a secret expert to assist a client in a case involving the Met.
After the particulars of claim were served, Mireskandari was suspended from practice by the Law Society on the grounds of suspected dishonesty and resigned from his law firm.
Associated Newspapers contended that Mireskandari’s disclosure was defective, and sought an order that he properly comply with his disclosure obligations and provide specific disclosure. Mireskandari treated Associated Newspapers’ application with ‘very short shrift’, arguing that the application was asking for documents that were irrelevant, and was made to vex the claimant and distract him from the proper progress of the claim. However, on the morning of Associated Newspapers’ disclosure application, Mireskandari accepted that his disclosure had been inadequate in what Eady J said could be described as ‘a Damascene conversion’ and a ‘complete volte face’.
Unsurprisingly, given that both parties consented to it, the disclosure order was granted. However, Eady J went further to say that the Associated Newspapers was entitled, at the very least, to be concerned, as indeed was the court, about the way in which matters had proceeded. The position must either have been that Mireskandari did not understand what his disclosure obligations were or, on the face of the documents that Eady J had seen, he had deliberately failed to comply with these obligations.
Consequently, Eady J ordered that Mireskandari serve a further witness statement, explaining, in as much detail as he could, why in December 2009 he said that Associated Newspapers was not entitled to the relief that it sought and, on the day of the application, conceded that it was entitled to the disclosure. Eady J went further to order that if the position was that the claimant had objected to the disclosure request on the basis of advice that he had received from his solicitors, they should also provide a witness statement (from whoever was dealing with disclosure) on behalf of the claimant, explaining the ‘lamentable state’ of his disclosure.
Mireskandari underlines the obligations to the court that both solicitors and clients have when carrying out disclosure. In addition to the reputational damage that can be caused to clients and their advisers in a case like Mireskandari, it is hard to see how a party could win after such a damaging blow to its credibility.
Bridle & anor v Williams & anor 
Bridle, which was heard by Master Fontaine, provides helpful guidance on when proceedings would be deemed to be an abuse of process on grounds of an impermissible collateral purpose, disproportionality or delay.
John Bridle and J&S Bridle Associates Ltd brought slander proceedings in relation to words allegedly spoken by Wayne Williams, a health and safety inspector, in the course of his employment by the second defendant, the Health and Safety Executive (HSE).
During an asbestos removal inspection at the University of Wales Lampeter, Williams was alleged to have said to two university employees that Bridle, who was advising the institution, ‘is not a real professor, as he claims’ and that the people he was speaking to ‘should not believe a word that he says’. These words were said to have damaged Bridle’s career and caused J&S Bridle Associates special damage through the loss of a contract for advice on asbestos removal worth £3,000.
Williams and the HSE applied for summary judgment and to have the action struck out on the basis that:
- There was a clear and obvious qualified privilege defence to the action.
- The claimants had no real prospect of defeating that defence by proving malice.
- The proceedings were an abuse of process. The abuse argument was made on three combined grounds of:
- impermissible collateral purpose;
- disproportionate time and cost; and
Master Fontaine held that although the statements of case had not reached the stage of a reply, the evidence did not suggest that the matters relied on by the claimants would be in any way sufficient to meet the high hurdle of a plea of malice.
In relation to the abuse of process argument, it was held that the circumstances suggested that the claim had been brought for an impermissible collateral purpose. This purpose directly related to Bridle’s wish to bring his dispute with the HSE and others about the risk posed by material containing white asbestos before a court in a public hearing. Master Fontaine based this conclusion on:
- An e-mail from the first claimant to the chair of the HSE, which stated that the ‘main objective’ of the legal action was:
‘To encourage the HSE to stop this policy, and get all your department responsible into court and the public arena so that the concerns can at last have a proper hearing.’
- The fact that no other defamation proceedings had been brought against publishers of more serious allegations against the claimants, which had been published in a permanent form and reached a much wider audience.
Master Fontaine held that it was apparent from the evidence that Bridle believed that a claim against the HSE would be likely to bring the debate to a public forum more readily than a claim against an individual journalist. While the claim was not said to be vindictive (so it was not in the same league as the case of Wallis v Valentine ), it was held to fall into the category of a vendetta, as outlined in Wallis.
In relation to the proportionality argument, it was held that the costs of the case compared to the likely damages would be disproportionate when balanced against:
- its very limited publication;
- the fact that it was doubtful that the vindication of the claimants’ reputations would be achieved because there were other more serious defamatory publications about Bridle widely available, in respect of which he had not brought proceedings;
- the fact the claim was made in slander and therefore did not involve a permanent record of a defamatory comment; and
- the fact that the claim was one with poor prospects on the merits.
In relation to the delay argument, it was said this did not factor into Master Fontaine’s decision to strike out the case. The claim was brought within the specified limitation period for defamation proceedings (one year). It was said that claimants are entitled to, and indeed should, explore whether the dispute can be resolved without the issue of proceedings and that, for the ordinary individual, bringing defamation proceedings is a significant step that requires much consideration before it is taken.
While the proceedings in Bridle were for slander, they are instructive when considering any strike-out claims or abuse of process arguments. In particular, legal advisers should consider what is motivating the claimant to bring proceedings and whether such motivation would be deemed improper. Lawyers should also be informed of any communications by clients relating to the litigation, whether pre-action or during the case, as these could be relied on in an abuse of process application.