Despite the costs order upheld by the Court of Appeal the Mitchell libel action continues.   There is a report of a decision today by Tugendhat in relation to an application for disclosure [2014]  EWHC 879 (QB).  It concerned an application for specific disclosure against the  Independent Police Complaints Commissioner.


The application was  made by the defendants for specific disclosure against the Commissioner in relation to contemporaneous statements.


The judge had a concern about those people whose statements may be disclosed but who were not represented at the hearing.

“22.               None of those who had made any of the statements in question in this judgment were represented at the hearing before                            me.  Nor have I seen the documents in which they set out their responses. When I raised my concern about their                                        interests, Mr Johnson told me that letters had been written to them, and that some of those to whom letters had been                               written had replied.  But none of this material was in evidence before me. He also informed the court that they                                              included public servants to whom the Treasury Solicitor had given advice.


  1. Although the Commissioner’s position in respect of the applications was neutral, the position of the two applicants was not. They submitted that the court could be satisfied that an order should be made in respect of the three classes of documents now in question, provided that the disclosure was expressed to be subject to the conditions laid down in Frankson.


  1. I am not persuaded that I can be satisfied that an order ought to be made on the material now before the court. For the avoidance of doubt, nothing in this judgment should be taken as the expression by me of any view as to whether or not a non-party disclosure order should be made in this case against the Commissioner in the event that the applications be renewed the makers of the witness statements in question who have not consented to the making of an order are joined as parties or make representations to the court.


  1. The parties also submitted to me that I might consider making an order for disclosure to take effect only after a specified period, and give the individuals who might be affected by that order liberty to apply to set it aside, if so advised. I decline to take that course. The HRA requires that a genuine balancing exercise be conducted on a case by case basis. I am in no position to carry out such an exercise. An order of the kind suggested would also convey the impression that the court had reached at least a preliminary conclusion adverse to the witnesses concerned, and that might discourage them from making representations which they would otherwise be minded to make.


  1. Should this judgment be referred to in the future, it will be noted that the decision I have reached, and the reasons I have set out, are not derived from adversarial argument. As is all too commonly the case, I have decided that it was necessary that I adopt a course of my own motion and in the face of powerful advocacy to the contrary. If any of those who gave the statements of which disclosure is sought are advised that I was wrong to have done this, nothing in this judgment binds them to adopt what I have written.”


The application was refused, but without binding the court on future occasions, in order that those parties who could be affected could make representations.