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

Mr White KC argued that, leaving aside whether, by dint of the Engagement Agreement, the Claimants have an enforceable right of access to documents held by the Research Team, they are clearly under their practical control as a matter of factual reality. Although the members of the Research Team may have originally obtained the documents wearing different “hats”, they now hold them as individuals and members of the Research Team specifically engaged by the Claimants in part because of their knowledge and experience. Mr White submits that, when these claims were issued, the Claimants themselves (as opposed to the Research Team and/or their legal representatives) did not hold key documents that were relied on to draft the Particulars of Claim. For example, Mr White KC submitted that Sir Simon Hughes (on his case) did not physically have copies of the Mulcaire notes said to be critical to his Personal Watershed Moment. Ms Frost Law was not personally provided with copies of the Miskiw/Anderson Emails until early 2022. Mr White KC contends that it appears that Claimants have been briefed on and able to access the documents held by the Research Team and that the Research Team have co-operated in providing access as and when the Claimants required.

Mr White KC submits that there is, in reality, no distinction as to the capacity in which members of the Research Team hold various documents. Mr Johnson may well have obtained documents in his capacity as a journalist, but that fact alone does not exclude them from being within the Claimants’ de facto control. Relying upon the Claimants’ disclosure, Mr White KC argues that no such distinction has been maintained by the Claimants and that, in reality, the Claimants have had free access to the documents Mr Johnson has obtained, including with Dr Harris. As to Dr Harris’ role with Hacked Off, which Mr White KC was inclined to accept was the strongest example of one of the Research Team wearing a particular “hat”, Mr White KC submitted Dr Harris had left Hacked Off in 2018. Whatever documents Dr Harris acquired in his role at Hacked Off, the real question is what he still retains now. Dr Harris’s historic role in Hacked Off does not put him in the position of the third parties in Loreley. More importantly, Mr White KC argued, there can be no impediment to the provision of documents to the Claimants on the grounds of the “hats” they have worn because otherwise the members of the Research Team would not have been able to make the offer that they have made to search the documents they hold.

In his skeleton argument, Mr Sherborne submitted that the only documents held by the Research Team that are within the control of the Claimants for the purposes of disclosure are the documents that were “obtained or accessed by them under any engagement or instruction by the Claimants in these proceedings”. At the hearing, Mr Sherborne’s submissions on control over the Research Team’s documents centred on the contention that the members of the Research Team operate in multiple capacities (the “hats”), and that the legal and practical control over their documents depends on these roles. He distinguished between their roles as independent researchers, agents of the Claimants, or as individuals acting under the instruction of solicitors. When acting as agents for the Claimants or under the instruction of solicitors, their documents may be within the Claimants’ control for disclosure purposes. When acting independently, or holding documents not created for the litigation, the documents may not be within the Claimants’ control.