King's / Queen's Bench Division of the High Court

KB-2022-003316 - [2025] EWHC 2930 (KB)

Fecha: 10-Nov-2025

Conclusions

F: Decision

57.

The authorities demonstrate that the Court must carefully assess the nature of the relationship between the third party (who it is alleged has relevant documents) and the party in the litigation who is subject to the disclosure obligation to determine whether the documents fall within the party’s control under CPR 31.8.

58.

In my judgment, the following features of the relationship between the Claimants and the members of the Research Team are important:

(1)

The three members of the Research Team – Dr Harris, Mr Johnson and Mr Waddell – have been described by the Claimants as “specialists” who have been involved in UIG litigation for well over 10 years. I have no difficulty in accepting this description as accurate. Dr Harris is the former Executive Director of Hacked Off, who has worked closely with solicitors acting for claimants in the NGN and MGN litigation. Mr Johnson is a journalist who has been investigating UIG for a considerable period of time. He has published a very large number of articles in Byline, largely reporting the fruits of his research. He has also worked closely with solicitors for claimants in the NGN and MGN litigation and has given evidence as a witness. From 2017, Mr Waddell had been assisting Mr Johnson with his investigations, including into UIG at Associated. He worked with Dr Harris in the NGN and MGN litigation providing support to the claimants’ solicitors.

(2)

The Research Team has been formally engaged by the Claimants in this litigation since the Engagement Agreement in April 2022. From that point onwards, members of the Research Team have acted as the agents of the Claimants. Under that agreement, which the Claimants have refused to disclose, the Research Team have agreed to provide assistance in the current litigation, for which they are remunerated. The members of the Research Team are not simply discharging the role that any paralegal could discharge. The have been engaged by the Claimants because of their specialist knowledge and experience in UIG, at least in part gathered as a result of their own investigations.

(3)

Prior to their formal engagement as the Research Team, the three constituent members have, since at least 2015, been working closely with the Claimants’ solicitors. With those solicitors, they have been actively engaged in investigating whether proceedings for UIG could be brought against Associated and gathering evidence potentially to support such a claim.

(4)

Dr Harris and Mr Johnson have been directly and specifically involved in incidents involving Sir Simon Hughes and Sadie Frost Law, between March 2016 and July 2020 (see [23] and [25]-[26] above). These incidents have a direct bearing on the Knowledge Issue for the purposes of Associated’s limitation defence to the claims of Sir Simon and Ms Frost Law. Based on the evidence I have set out, it is highly likely that both Dr Harris and Mr Johnson will have documents that are likely to bear materially on the issue of whether Sir Simon Hughes and Sadie Frost Law knew (or could with reasonable diligence have learned) that they each had a viable claim of UIG against Associated. Further, the reference in Dr Harris’ email of 31 December 2018 to “five or so others who [had] been notified” (see [26(4)] above) suggests that others were actively contemplating litigation against Associated. The identity of these individuals – likely to be revealed in documents held by the Research Team – may well have wider potential significance for the limitation defences relied upon by Associated.

(5)

As to evidence of past access to the Research Team’s documents, prior to the Engagement Agreement, from May 2021, the Research Team gave the Claimants access to the documents that they hold relating to Associated. After the Engagement Agreement, there is no suggestion in the Claimants’ evidence that members of the Research Team have withheld documents that they hold or that access to those documents has been restricted. In the absence of the Engagement Agreement, but having regard to its nature, purpose and likely scope, I would infer that restrictions on access to the Research Team’s documents would be likely to be inconsistent with the spirit of the Engagement Agreement if not a direct breach of its terms. This conclusion is also consistent with the Research Team’s recent offer to allow full access to their documents for searches by the Claimants (see [43] above).

(6)

The primary purpose of the Engagement Agreement is for the Research Team to assist the Claimants in this litigation. That includes giving them unfettered access to their documents. I readily infer that the documents held by the Research Team was a fundamental part of why they were engaged by the Claimants.

59.

As the Claimants have refused to disclose the Engagement Agreement, I cannot resolve whether the Claimants have an enforceable right, under that agreement, to obtain access to the documents held by the Research Team. However, I am satisfied that the Engagement Agreement reflects the fundamental cooperative working relationship between the Research Team and the Claimants (and their lawyers). That relationship is based on an arrangement (perhaps expressly reflected in the terms of the Engagement Agreement) or at least a clear understanding that the Research Team will provide effectively unfettered access to the documents that they hold relevant to the litigation against Associated. It may be that some of the documents held by the Research Team are subject to restrictions (whether arising in the context of other litigation – imposed by CPR 31.22 – or in respect of journalistic sources), but that does not undermine the basic nature of the relationship of cooperation between them and the Claimants.

60.

This case is not an example of the position in Loreley where the third party held the documents in a specific capacity that was wholly separate from his role as the agent of the party against whom disclosure was sought. None of the Research Team presently holds documents in a capacity which would negate a finding that they are effectively and practically within the control of the Claimants. The evidence advanced by the Claimants in Mr Thomson’s witness statements does not suggest that the members of the Research Team have withheld documents from the Claimants on such a basis. The status of each member of the Research Team when he originally took possession of the documents does not govern whether they are now in the practical control of the Claimants. That latter question is to be assessed by looking at the position of each member of the research team now, not when they originally obtained the documents. The fact that Mr Johnson and Mr Waddell may have come into possession of documents as a result of their journalistic investigation does not now put them beyond the control of the Claimants. So too any documents that Dr Harris has retained from his time at Hacked Off. There is no suggestion that Dr Harris has retained documents to which he had no entitlement, and he does not presently hold any such documents as an employee of Hacked Off; he ceased to be an employee in 2018.

61.

The circumstances in which each member of the Research Team came originally to hold the relevant documents may be relevant to whether, within the process of standard disclosure, inspection of a particular document can be withheld in these proceedings (see what I said in [227] in the July Judgment). Importantly, however, the Court can ultimately resolve any objection to inspection which is challenged, for example by releasing restrictions under CPR 31.22.

62.

For these reasons, my conclusion is that the documents held by members of the Research Team (including documents that came into their possession prior to the Engagement Agreement) are within the control of the Claimants for the purposes of standard disclosure, those documents must be properly searched and such documents that fall within the terms of standard disclosure must be disclosed. The terms of the search are not to be limited to searches relating to particular Claimants or particular issues, e.g. the Knowledge Issue. The Knowledge Issue has been the principal focus of Associated’s application, but it is not the sole focus and the Research Team Order was not so limited.

63.

I have narrowly been persuaded by the Claimants that I should not make an unless order, at this stage. Whilst there is obvious urgency, in view of the trial date, this is not an instance of a party defying an order of the Court. The Claimants have raised the issue of the extent to which the Research Team’s documents are within their control. I have ruled that the assessment that they made was erroneous. There is no basis upon which to conclude that the Claimants will not now comply with the order that will be made requiring a proper search of the Research Team’s documents to be made and appropriate disclosure to be provided. The Court has received assurances that the Research Team will cooperate to enable a proper search to be made. The sanction of striking out the Claimants’ claims would, at this stage, be disproportionate. The impending trial date means that this task must be completed quickly, and the Court is likely to be unsympathetic to any delay or non-compliance. Ultimately, the Court will achieve compliance with its orders. If that requires a sanction to be imposed, then that may well be the next step. As I say, at this stage, I see no reason to anticipate non-compliance on the part of the Claimants.