The Sun had published a nasty attack on a paedophile – and published the wrong man’s picture with it. The innocent party, Mr. Gazley, tried a local solicitor, who suggested settling the case for £10,000. Mr. Gazley rightly rejected that advice, and instructed Carter Ruck on a CFA. Following an offer of amends, Mr. Gazley accepted a part 36 offer of £50,000. Then Carter Ruck presented the newspaper with a costs bill of £91,000 (including a 100% success fee). The costs judge reduced the recoverable success fee to 20%, but also said that it was a 'Norfolk case' (i.e. a case suited to be dealt with locally: Mr. Gazley lived in Norfolk). Eady J disagreed, pointing out that even it started in Norfolk, it would probably have been transferred to London. He also thought the costs judge had exaggerated the simplicity of the case. He nevertheless went on to hold that it was not reasonable for the Claimant to have instructed a London specialist solicitor. One of the reasons given was that Mr. Gazley could have found another local solicitor who was at least competent enough to adequately instruct specialist Counsel.

This summary of the case leaves one feeling that London solicitors need to be careful to advise clients from outside London about the risk of failing to recover costs after a successful claim, unless the client opts not to use a local firm with lower rates than are the norm in London, even for a case which will be heard the RCJ. However, Eady J stated that this was a case on its own very special facts, and that he did not think that in rejecting the appeal he would dramatically change the landscape of libel litigation. His general comments, which stressed the reluctance of an appellate court to interfere with a decision, and the great experience of litigation which the costs judge possessed, could be read as designed to limit the wider impact of the decision. Underlying the decision appears to be the concern which the Court of Appeal expressed in Adam Musa King v Telegraph Group Limited [2004] EWCA Civ 613 (about the burden of high costs, and consequent restriction on freedom of speech) which CFA in defamation cases can impose on defendants. In other words, the implication may be that a decision of this kind can only be expected in cases where defamation solicitors working on CFA become so expensive as to make defending a defamation claim uncommercial, so that newspapers would have to treat settling a stream of unmeritorious claims as a kind of court-sanctioned extortion

Nevertheless, given Eady J’s acceptance of the argument that the availability of specialist counsel can make it reasonable and realistic to use provincial solicitors in a 'London case', no doubt this argument for why it may be unreasonable to instruct London solicitors will soon be tried in cases outside the defamation field. If it has any prospect of success, the possible dangers (in costs terms) of instructing London solicitors might be a selling point for cheaper provincial firms who would like to do more RCJ litigation.

Using disclosure to circumvent the Data Protection Act: Earlier in November, Laddie J, in Johnson v The Medical Defence Union Ltd [2004] EWHC 2509 (Ch), was asked to decide whether a party who has been refused sight of documents under the Data Protection Act 1998 (DPA) could then proceed to ask for the same documents in disclosure. His answer was that in principal, yes, an order for specific disclosure is possible.

Where a data controller has refused to supply documents to a data subject, the subject can ask the court to look at the data and decide whether the refusal was compliant with the act. DPA s7 gives the right to the data subject to ask the court for such an order. DPA s15 lays down the procedure, and in particular says that while the application is pending the data subject is not allowed to see the data by way of disclosure.

Laddie J had already looked at the disputed material, and in an earlier judgment had explained why he refused to order the defendant to give the claimant, Mr Johnson, the data he sought. Mr. Johnson then argued that he could have sight of the same data by way of discovery for his other DPA claims (under s 10 (prevention of processing), s 13 (damages) and s 14 (rectification or erasure of data)). This does look like a back door route which could allow an unsuccessful applicant a second bite at the cherry. Laddie J’s judgment does not delve into broad questions of principle but solves the question by treating it as a straightforward matter of statutory interpretation. He held that the statutory bar on disclosure in s 15 was specific to applications for provision of information under s 7 – and not to other kinds of action which the DPA permits.

This was not a hearing to determine an application for specific disclosure – only to decide whether it is possible in principle to get such an application off the ground. No disclosure was actually ordered, that was for a future hearing. And Laddie J did comment that the policy in the statute of balancing the interests of the data subject and data controller would be a relevant issue when deciding whether to order specific disclosure.

The potential for problems arising from conflict between the disclosure rules on one hand, and on the other the need to prevent the use of disclosure to circumvent a refusal to provide information under the act, is plain. First, CPR 31.14 gives a party the right to inspect a document mentioned in a statement of case or a witness statement. If the court has refused a claimant’s application under DPA s7 for provision of information, it seems inevitable that a claim for rectification or damages with respect to the same documents will involve mentioning those documents in pleadings or evidence. That should trigger an automatic right to disclosure. Second, where a judge has read the documents for a s7 application, and refused the application, it could place that judge in a difficult position if he or she were asked to determine an application for specific disclosure, or, having refused specific disclosure (perhaps partly on grounds of data protection policy), to try the other claims relating to those documents. Finally, one can imagine an alarming, if improbable, scenario where the disclosed documents provide substantial grounds for renewing an application for leave to appeal the judge’s original refusal to order provision of information from those very same documents under DPA s7. Put plainly, it might be obvious once the documents are disclosed, that the judge was wrong to refuse the Claimant’s application for provision of the information in them. Such an appeal would be an 'academic' exercise, perhaps, once the documents have been disclosed anyway, but highly relevant to costs. Use of the disclosed material for an appeal would probably not amount to collateral use, at any rate where the failed s7 application and the other claims were part of the same action, and even if it did amount to collateral use, the rule against collateral use of disclosed material would be unlikely to stifle a compelling case.

Those are the problems. The common sense solution appears to two-fold. First, the courts should be prepared to change the judge, where a party who has been refused a s7 application is unhappy with the same judge trying other claims with respect to the same documents (and possibly determining an application for disclosure of those documents). Second, the courts and the parties should accept that they will just have to live with the fact that claims under the DPA may give the claimant a back-door route, via disclosure, to seeing disputed documents, provided the claim is strong enough to get to trial, and the claimant is prepared to take the risk in costs. After all, the disclosure regime has its own inbuilt mechanisms for protecting third parties who may be named in those documents. These include public interest immunity, and CPR rule 31.19, which permits an ex parte application to withhold inspection or disclosure of a document. That should be enough to satisfy a defendant who is reluctant to disclose material to which the claimant has failed to establish a right under the DPA s7.

Dr John Birchall - Professional English, Legal English, and Common Law Training