In the recent ruling of Noel Anthony Clarke v Guardian News & Media Ltd (2025), the High Court made a number of significant precedents in relation to limitations of litigation privilege, significance of prompt disclosure, relevance and necessity of material requested, and the possible disruptions resulting from late disclosure requests.
BACKGROUND OF THE CASE
The claimant, a public figure, filed a claim against Guardian News and Media Ltd, asserting that the articles published by the organisation, which accused him of abusing women, resulted in defamation and caused him significant harm. In the process of litigation, the defendant disclosed several audios, mainly telephone discussions with the journalists. Some of the audios included AI-generated transcripts, however, the transcripts were not perfect. Consequently, the defendant obtained certified transcripts but agreed to share them with the claimant only if he paid for them, which the claimant refused to do.
It is important to note that during the hearing in November, the claimant’s solicitor raised the question of disclosure of certified transcripts. To this, Master Thornett directed that if the claimant requires the disclosure of certified transcripts, a specific disclosure application must be filed in a timely manner. However, the claimant did not follow this direction and decided to request all of the transcripts on 31 January 2025, shortly before the trial in early March 2025. The defendant’s solicitor responded by saying that they had already complied with the disclosure requirement by providing earlier transcripts. Additionally, they expressed their intention not to provide certified transcripts, as these are safeguarded by litigation privilege.
JUDGEMENT
The defendant’s arguments in relation to the litigation privilege was refused based on the cases of Property Alliance Group Limited v RBS plc(No 3) (2015) and Parry v News Group Newspaper Limited (1990).In both instances, it was determined that if the initial conversation was not privileged, then the recording of that conversation would also not be privileged. Mr. Millar also clarified that litigation privilege does not automatically apply to all materials prepared for trial. This implies that future parties cannot blindly rely on litigation privilege and refuse to disclose certain materials. In addition, it is essential to have a clear understanding which materials must be disclosed and which are protected by privilege to avoid errors made by the defendant.
Additionally, the judge addressed the issue of timely disclosure. The request was rejected since it could potentially lead to delays of trial. The claimant's late request for disclosure did not reflect favourably on him. If he had submitted his request earlier, per Master Thornett’ s guidance, it might have been accepted. This suggests that future applicants should be more careful in their approach and avoid making last-minute requests since there is a risk of it being rejected by the court.
Additionally, the judge emphasised that obtaining certified transcripts is not essential for ensuring a fair trial. The defendant's request failed to articulate clearly the significance of acquiring all transcripts at this late stage, particularly since he plans to utilise only a few. The judge suggested that the claimant focus on requesting only the necessary transcripts rather than the entire file, especially since some AI-generated transcripts have already been provided. This was considered an unjustified disruption to the trial and an unnecessary burden on the defendant.
The judge's remarks show the importance of identifying what is truly necessary for a fair trial versus what is requested without justification. Requests lacking a reasonable basis likely to be denied.
To avoid having your request denied, it is essential to submit it in advance and provide a valid justification for such request. Additionally, it underlines that not all materials prepared are eligible for protection under litigation privilege, indicating that there are limitations to this privilege.
