Steyn: No foundation for allegations
It was “unacceptable” for lawyers representing the actor Noel Clarke to make allegations that The Guardian newspaper fabricated evidence in defending his libel claim, the High Court said yesterday.
Mrs Justice Steyn said “such a grave allegation should not have been made and publicly aired without foundation”.
She made the comments in rejecting Mr Clarke’s application to strike out the newspaper’s defence ahead of the six-week liability trial beginning on 3 March.
The claim for defamation and breach of data protection legislation relates to eight articles in which 20 women accused Mr Clarke of groping, harassment and bullying.
In support of the application, his solicitor, Rao Hassan Khan of London firm The Khan Partnership, accused three journalists “and potentially other editors” of perverting the course of justice by deleting evidence when they knew there would be litigation about the articles, and by fabricating correspondence to replace the deleted communications.
The allegations centred on two particular threads on a Signal group chat between the trio – which in fact survived the attempt to delete them – some other threads and, more generally, their use of what Mr Khan called “disappearing messages”.
Steyn J observed that “everyone deletes electronic documents all the time” and that in this instance litigation was not in reasonable contemplation at the time.
The initial letters from Mr Clarke’s lawyers, then London firm Simkins, were written before publication of the first article and were not letters before action – indeed, no letter before action was sent until 15 months later.
Evidence from Gillian Phillips, then Guardian Newspapers’ director of editorial legal services, was that the legal department would issue a ‘litigation hold’ notice when it was clear a legal claim was contemplated, alerting editorial staff of the need to retain all documents that were or might be disclosable.
Until then, the practice was to encourage staff to review, and where they felt appropriate delete, any “non-essential investigation documents”.
The notice was only issued when the letter before action was received.
Ms Phillips said that, pre-publication, she did not consider litigation was reasonably in contemplation. The language used in the letters was “simply part of the cut and thrust of pre-publication correspondence”, the aim of which was to stop the article being published or restrict what was said about Mr Clarke.
Paul Lewis, the newspaper’s head of investigations, added that, “if anything, the language about the claimant’s rights being reserved was less threatening, and less specific than that which I had read in pre-publication letters from law firms in the preceding months and years”.
Steyn J held that the legal team “cannot fairly be criticised for taking the view they did that litigation was only in reasonable contemplation when the letter before action was sent on 12 August 2022.
“But even if that were wrong, it would indicate nothing more than a misjudgement by lawyers on an issue which… is not simple.”
Further, she was “unpersuaded” that the deletion of documents had a tendency to pervert the course of justice. There was nothing in the two threads that survived deletion “which would be capable of changing the outcome of this case, in which there is a mass of other evidence.”
In any event, there was no intention to pervert the course of justice. The journalists “were free to delete these peripheral documents in accordance with their organisation’s data minimisation policy…
“They are not lawyers and cannot fairly be criticised for following their legal department’s lead on when a duty to preserve documents applied.”
There was, Steyn J went on, “no foundation” for the “extremely serious” allegations of fabricating evidence.
“In oral submissions, counsel for the claimant sought to assert that the term fabrication was justified because the deletion of documents altered the overall impression. It was said that the deletion of some threads of evidence, modifying the story, was ‘an attempt to swindle’ the claimant.
“The approach taken by the claimant’s representatives is unacceptable: deletion is not fabrication, and such a grave allegation should not have been made and publicly aired without foundation.
“Ultimately, leading counsel for the claimant, [Philip] Williams, made clear that the claimant does not allege that [the journalists or anyone else on the part of The Guardian] has created a false document.”
The judge concluded that The Guardian had not perverted or attempted to pervert the course of justice, and in any case “such limited pre-action deletion of documents as has occurred is not such as to preclude a fair trial of the claim”.
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