Criminal

Prosecution inadvertently disclosing to defence evidence excluded at public interest hearing - judge allowing legal advisers to continue to act but making order that they should not divulge evidence to clients - inappropriate for judge to make order


R v G and another: CA (Lord Justice Rose, Mr Justice Cresswell and Mr Justice Andrew Smith): 27 May 2004


The defendants were charged with serious fraud offences. Having heard counsel for the prosecution on an ex parte public interest immunity hearing in chambers, the judge ruled that certain sensitive material should not be disclosed to the defence.


In breach of that ruling, the prosecution inadvertently disclosed, in an unredacted paragraph of a document, highly secret and sensitive material. Before the prosecution discovered the error, leading and junior counsel for the two appellants had read the material, and leading counsel for G had informed his solicitor about the material. Later that day, the judge made an interim order that those to whom such disclosure had been made should not further disseminate the material to any third party, including their clients.


He concluded there was no impediment to the legal advisers properly continuing to act and that knowledge by the lay clients of the unauthorised material was unnecessary for just disposal of the trial. The order was made at a preparatory hearing pursuant to sections 7 and 9 of the Criminal Justice Act 1987 and was therefore subject to interlocutory appeal. The defendants appealed against the order.


Andrew Mitchell QC, Peter Martin and Shaun Esprit (instructed by Needleman Treon, London) for G; Charles Miskin QC, Rupert Pardoe and Elisabeth Lees (instructed by Corker Binning, London) for B; Robert Rhodes QC and David Aaronberg (instructed by Punatar & Co, London, Burton Copeland, London, and Simons Muirhead & Burton, London) intervening on behalf of the other three defendants; Victor Temple QC and Linda Dobbs QC (instructed by the Serious Fraud Office) for the Crown.


Held, allowing the appeal, that it was not appropriate for a judge in a criminal trial to make an order prohibiting defence counsel and solicitors from divulging to their clients evidence which had been inadvertently and wrongly disclosed to them by the prosecution; that it was for counsel and solicitors to make that decision in the light of all the circumstances known to them; and that, accordingly, the judge was wrong to conclude that in the circumstances, counsel and solicitors, restrained by his order, could properly continue to act.


Damages


Defamation proceedings - potential exorbitant costs to defendants - power to impose costs-capping order


King v Telegraph Group Ltd: CA (Lord Justice Brooke, Lord Justice Jonathan Parker and Lord Justice Maurice Kay): 18 May 2004


In a defamation claim, brought by the claimant under a conditional fee agreement (CFA) and without after-the-event (ATE) insurance, the defendant national newspaper sought from the judge an order putting a cap on the costs likely to be incurred. The application failed and the newspaper now appealed against the interlocutory rulings of the judge.


Andrew Caldecott QC and Godwin Busuttil (instructed by Farrer & Co, London) for the defendant; Richard Rampton QC and Harvey Starte (instructed by Carter-Ruck, London) for the claimant.


Held, dismissing the appeal, that it was inappropriate for an appellate court to impose a novel order absent error on the part of the judge, but the court gave guidance for future such cases, where it simply could not be just to submit defendants in such cases, where their right to freedom of expression was at stake, to a costs regime where the costs they would have to pay if they lost were neither reasonable nor proportionate and they had no reasonable prospect of recovering their reasonable and proportionate costs if they won; that the court had power to impose a costs-capping order in an appropriate case under section 51 of the Supreme Court Act 1981 and CPR rule 3.2 (m), and if defamation proceedings were initiated under a CFA without ATE cover, a master should at the allocation stage make an order analogous to an order under section 65(1) of the Arbitration Act 1996; that if the introduction of this novel costs-capping regime meant a claimant's lawyers might be reluctant to accept instructions on a CFA basis unless chances of success were significantly greater than evens, that was a small price to pay in contrast to the potential price if the present state of affairs were allowed to continue; that in future, if a claimant's solicitors agreed to act on a CFA without ATE cover in a defamation action they would have to bear in mind from the time they were first instructed the requirement to assess the likely value of the claim, its importance and complexity, and the necessary work and expense appropriate to each stage up to trial. (WLR)


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