Case No: HQ11D03790
Neutral Citation Number: [2014] EWHC 662 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/03/2014

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	HELAL UDDIN ABBAS	Claimant	
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	SHAH YOUSUF	Defendant	
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	SALEHA ALI	Respondent	

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Mr Shah appeared in person
Michael Hartman for the Respondent
Robert Dougans for the Claimant

Hearing dates: 4 March 2014
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Judgment
Mr Justice Tugendhat : 
1.	This libel action was commenced by claim form issued on 11 October 2011. As set out in the Particulars of Claim served on 28 November 2011 the Claimant (“Mr Abbas”) complains of words published in the issue of London Bangla dated 15-21 October 2010. These were, first, an advertisement including the words “Stop Wife-Beating Mayoral Candidate Helal Abbas”, and, second, an extract from that advertisement published in an article which appeared on the same page under the hearing “A right Mayoral Punch-Up”. It is not necessary to set out the words complained of in full. The meaning which Mr Abbas attributes to them (and which is not in dispute for the purposes of the application before me) is that he “has a history of committing violent assaults upon women close to him, in particular upon his former wife”.
2.	The Defendant (“Mr Shah”) was the editor of the newspaper. No Defence has been served. On 12 December 2012 Mr Shah issued an application notice seeking orders under CPR 31.17 for disclosure of documents against two persons who are not parties to the libel action, namely the Crown Prosecution Service and the Saleha Ali. Ms Saleha Ali was formerly the wife of Mr Abbas. 
3.	Originally there was a First Defendant, London Bangla Ltd, the publisher of London Bangla, but that company ceased trading on 31 July 2011, and the claim was discontinued against it on 25 October 2012. The application against the CPS has not been pursued.
4.	The documents of which Mr Shah seeks disclosure from Ms Ali are stated in the draft Order to be her “Medical Records”, but Mr Shah has made clear that he limits his application to records held by her GP.
5.	Mr Shah has no legal representation. Litigants in person commonly have great difficulty in conducting libel actions, and that may be one reason why the procedural history of this case is as it is.
6.	At the time the words complained of were published Mr Abbas was a Councillor in the London Borough of Tower Hamlets and for the ward of Spitalfields and Banglatown, and a member of the Labour Party. He was the Labour candidate for the office of Mayor of Tower Hamlets in the election due to be held on 19 October 2010, four days after the issue of the newspaper containing the words complained of.
7.	As a result of the publication of the words which are complained of in this libel action Mr Shah faced being charged with an offence under the Representation of the People Act 1983 s.106. That reads, so far as material:
“(1) A person who, or any director of any body or association corporate which— (a) before or during an election, (b) the purpose of affecting the return of any candidate at the election, makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.”
8.	For the purposes of that prosecution Ms Ali made two statements in form MG11, one on 13 January 2011 and another on 12 May 2011. She stated that she had been married to Mr Abbas for nine years until 1996, and there was no physical violence between herself and Mr Abbas when they were married. 
9.	On 28 November 2011 Mr Abbas served the Particulars of Claim, as stated above. In addition to the other matters, he claims aggravated damages in para 9. Mr Abbas alleges that Mr Shah “knew or ought to have known that [he] was publishing information designed solely to injure [Mr Abbas’s] reputation prior to the Mayoral Election”. Mr Abbas complains that Mr Shah made “no attempt to contact [Mr Abbas] or his former wife prior to publication”. Mr Abbas pleads that he:
“will ask the Court to infer that this was because [Mr Shah] suspected the allegations were untrue, but did not want to take any steps which would confirm those suspicions”.
10.	On 31 January 2012 judgment in default was entered against Mr Shah in this libel action. 
11.	Mr Shah pleaded not guilty to the charge under the Representation of the People Act. The trial in the Crown Court was scheduled to take place on 3 April 2012. 
12.	On 2 February 2012 Mr Shah signed a Defence Case Statement pursuant to the Criminal Procedure and Investigation Act 2003 ss.5 and 6. It included the following statement of the nature of his defence:
“a) The Accused accepts that at the relevant time, namely October 2010, he was the editor of the London Bangla Newspaper.
b)	The Accused agrees that on the 15th October 2010, and prior to the Mayoral elections of Tower Hamlets of the 21st October 2010, ‘The London Bangla’ published an advert concerning Helal Abbas, a rival candidate to Lutfar Rahman, advertising a rally against domestic violence on the 19th October 2010 at 6pm.
c)	The Accused denies that the advert, allegedly containing a false statement of fact in relation to Helal Abbas’s personal character, was published for the purpose of affecting the return of a candidate at the election.
d)	The Accused contends that he had reasonable grounds for believing the prospective rally to be genuine and that he believed the allegations of domestic violence against Helal Abbas to be true.  He further asserts that he took reasonable steps at the time of publishing the advert to authenticate the veracity of the allegations of domestic violence prior to its publication by making relevant inquiries.
e)	 The Accused states that various credible sources, including members of the Labour Party, were consulted for their opinions regarding the allegations of domestic violence and confirmed their belief in the same.  The aforementioned persons were Christine Shawcroft, Charles Langford, Jenny Fisher, Sultana Begum and Aktaruz Zaman.
f)	The Accused contends that he was also generally aware of the commonly held belief in the Bengali community that domestic violence had been the alleged reason for the Complainants divorce from his then wife Saleha Ali.
g)	In addition the Accused asserts that he believed that the Complainant was capable of violence towards women because, prior to the running of the advert, he had received a dossier regarding an investigation by Jenni Boswell-Jones on behalf of the Local Government Committee relating to an allegation of attempted assault by Helal Abbas on Labour Party member Lillian Collins, at a meeting between Shadwell Branch labour Party members on 29th January 2002.
h)	The Accused contends that in relation to the second count he did not regard the advert as being published for a candidate in an election and therefore contends that in his opinion it did not require the inclusion of the names and addresses of the printer, the promoter, and the person on behalf of whom the material was being published.”
13.	On 22 February 2012 PC Keeble made a statement in which he described interviews he had had with Ms Ali. The first was on 17 December 2010, and he made a note of this in the CRIS report. The second interview was on 7 January 2011, following which her statement had been prepared. 
14.	The CPS disclosed to Mr Shah the witness statements made by Ms Ali, and by PC Keeble. Having seen those statements, Mr Shah, through his solicitor, first asked for disclosure of Ms Ali’s medical records.
15.	On 27 March 2012 the CPS served a notice of discontinuance. In they stated that the Prosecution had obtained material which meant that there was insufficient evidence to prove a realistic prospect of conviction and that it was no longer in the public interest to prosecute the offence in question.
16.	Mr Shah then asked the CPS for disclosure of the material referred to in the notice of discontinuance. On 17 July 2012 a Crown Advocate replied saying:
“I am unable to disclose this material to you as it concerned third party material which was in essence the medical records of a witness in the case. The witness agreed to co-operate with the prosecution and allowed me to consider her medical records simply so that I could fulfil my obligations under the CPIA…”
17.	Mr Shah pursued his request. He explained to the CPS that he needed the disclosure for the purposes of this libel action. On 18 July 2012 the CPS sent a reply which included:
“Shortly before the trial I obtained medical notes of a witness in the case. This material undermined the prosecution case and caused its discontinuance … I have previously set out my reasons why I can not disclose these to you”.
18.	On 25 October 2012 the default judgment in this libel action was set aside by consent. Mr Shah was ordered to serve his defence by 22 November 2012.
19.	On 12 December 2012 the application notice now before me was issued. On the same date Mr Shah made a witness statement in support of the application under CPR r.31.17. He states that Ms Ali was one of only two female witnesses for the Prosecution. The other was the Electoral Services Manager of the Borough. 
20.	From these facts he seeks to draw the inference that the medical notes which the CPS obtained, and which undermined the prosecution case, were those of Ms Ali. He states:
“91.1 … The only element of the offence that could be affected by the content of the medical records is that the statement made in relation to [Mr Abbas] is false.
19.2 If, as it appears, the Medical Records do contain information confirming that Ms Ali has suffered domestic abuse at the hands of [Mr Abbas], my ability to inspect these documents will be key as the evidence will give me a complete defence of justification…”
21.	A defence of justification is a plea that the words complained of are true. I recall that in his defence statement in the criminal proceedings Mr Shah did not assert that the words complained of were in fact true (or, to be more precise, that the words complained of were not false, that being one of the things that the Prosecution must prove). His case was that he had reasonable grounds to believe, and did believe that they were true. In his witness statement made in this libel action he says nothing of that defence. He states that the period for which he seeks disclosure of the medical notes is from the date of Ms Ali’s marriage to Mr Abbas to the date of publication of the words complained of. 
22.	On 13 May 2013 the Master ordered that Mr Shah’s application be heard on 5 July 2013 at the same time as a costs and case management conference. On 5 July the hearing was adjourned to 18 October 2013. On 18 October it was adjourned again by the Master to 23 January 2014.
23.	On 21 February 2014 Ms Ali made a witness statement. She stated that she had never understood herself to have been the victim of domestic violence. Ms Ali states that her medical records are very private to her, that she has asked her GP to review them, and that she has been told that there is no note of her complaining of any physical violence during her marriage or after divorce at any time.
THE LAW
24.	CPR r.31.17 includes:
“(3) The court may make an order under this rule only where–
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.”
25.	The general rule relating to the sequence in which a defendant may seek disclosure from a claimant, and serve a defence of truth, is that he must serve a defence of truth (if he can) first, and then he will be entitled to disclosure which relates to the issues which he has pleaded. A defendant is not entitled to fish for a defence in a claimant’s papers. See Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148 and Taranissi v BBC [2008] EWHC 2486 (QB) and Gatley on Libel and Slander 12 the ed para 31.6. 
26.	The same applies to applications for disclosure against non-parties. As Eady J stated in Flood v Times Newspapers Ltd [2009] EWHC 411 (QB); [2009] EMLR 18 at para [36]:
“It is elementary, of course, as in relation to the disclosure of documents more generally, that in determining whether a document or class of documents has a potentially relevant bearing on one or more of the live issues in the case, one should focus narrowly on the pleadings as they stand, in order to see how the issues have been defined up to that point. Thus, as I have already pointed out, one cannot be guided by speculation as to how a different case might be pleaded, after a new source of documents is investigated, or as to matters which are merely canvassed in evidence – without being incorporated into a pleading.”
27.	Finally, as Eady J said in Flood at para [25]:
“Thirdly, there is a residual discretion on the part of the court whether or not to make such an order – even if the first two hurdles have been overcome: Frankson v Home Office [2003] 1 WLR 1952…]. It is at this third stage that broader considerations come into play, such as where the public interest lies and whether or not disclosure would infringe third party rights in relation, for example, to privacy or confidentiality. If so, the court must conduct a careful balancing exercise, as the Court of Appeal made clear in Frankson.”
SUBMISSIONS FOR Ms ALI
28.	Mr Hartman submitted that the application for disclosure before defence is premature. Further he submits that neither of the conditions in r.31.17(3)(a) or (b) is fulfilled. In the light of the witness statements made in the criminal proceedings, and in this action, it is not likely that disclosure would support the case of Mr Shah (assuming his case were to be a plea of truth) or adversely affect the case of Mr Abbas. And the order sought would be a serious interference with the right to private life of Ms Ali, and one which is not necessary or proportionate for Mr Shah to have a fair trial.
29.	Mr Shah submits that there is a contradiction between the witness statements of Ms Ali as to what she told her GP at the time when she was married. 
DISCUSSION
30.	At the end of the submissions I informed the parties of my decision that this application must fail on the basis that it is premature. Until Mr Shah has pleaded a defence, he has no “case” within the meaning of r.31.17(5)(a) which the documents could support. That is the end of the matter. 
31.	I also stated that, in the light of the evidence set out above, I was not persuaded that, even if Mr Shah had pleaded a defence of truth, it was likely (on the material at present before the court) that the disclosure would support his case or adversely affect that of Mr Abbas. Finally I stated that I would in any event have decided (on the material at present before the court) that the order for disclosure would not have been necessary for disposing fairly of the action or saving costs, and would, rather, have been an unnecessary and disproportionate interference with the right of Ms Ali to her private life. 
32.	I am not persuaded that what Mr Shah refers to as a contradiction between statements of Ms Ali does amount to a contradiction and I am unable to draw from the correspondence from the CPS the inference that Mr Shah invites me to draw. I cannot speculate upon what the CPS might have seen or discovered that led to the prosecution being discontinued.
33.	However, Mr Shah indicated that he would wish to renew his application for disclosure of Ms Ali’s medical notes after service of a defence. While I cannot now decide what would happen if he were to make such an application in the future, it may assist him in deciding what to do, and (if he does apply again) any judge to whom any such application may be made, to know the views that I have recorded above.
34.	In the course of submissions on the directions to be given for the further steps to be taken in this action I asked Mr Shah whether or not he was intending to rely in his defence upon the matters he had put in his statement of defence for the criminal proceedings. He said that he was. Mr Dougans accepted that these matters would, if pleaded in the libel action, be an adequate plea of a Reynolds defence, albeit not in a conventional form. I proposed to the parties that I might direct the defence statement in the criminal proceedings to stand as a defence in this libel action. Mr Shah declined that invitation saying that he wanted to add to his defence. I set a time limit for service of any defence.

CONCLUSION
35.	It is for these reasons that I refused Mr Shah’s application.