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

QB-2022-001397 - [2025] EWHC 2193 (KB)

Fecha: 22-Ago-2025

The Deletion Issue

The Deletion Issue

1012.

On 29 April 2021, prior to publication of the first article, Mr Lewis instructed Ms Osborne and Ms Kale to delete the Signal threads between the three of them, and any one-to-one discussions between them. Ms Viner, Mr Gibson and Mr Lewis explained that this was in accordance with the Guardian’s data minimisation policy. The journalists used Signal only for messaging between themselves, akin to the brief logistical and administrative conversations they would have had in person if they had not been required to work from home due to Covid-19 restrictions. In accordance with the data minimisation policy, journalists were expected to set Signal threads to disappear (which at the time had to be done for each individual thread) or (if they had forgotten to do so) manually delete them.

1013.

Mr Lewis forgot to follow his own instruction, and so the “Last Day” and “Final” Signal threads between him and the two reporters were preserved and disclosed. Aside from the instructions to delete the threads, there is very little in them that the Claimant relies on, and nothing of significance.

1014.

Paragraph 7 of CPR Practice Direction 31B provides:

“As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.”

The duty is one of notification, imposed on the parties’ legal representatives.

1015.

The Claimant contends that the deletion of relevant Signal messages affects the quality and quantity of the evidential picture. He invites the Court to draw the inference that Mr Lewis, Ms Osborne and Ms Kale had litigation in mind when they deleted Signal messages (or in Mr Lewis’s case, gave the instruction to do so), and their intention was “to influence the outcome of litigation”.

1016.

The Claimant’s closing submissions state that “all three journalists gave evidence in response to the Strike Out application that they did not believe litigation was a contemplated likelihood. In a volte face, all three then proceeded to admit to this in live evidence at trial”. This is untrue:

In his second witness statement, submitted in opposition to the strike out application, Mr Lewis said:

“I have always understood that the point at which I should take steps to preserve relevant materials in anticipation of legal proceedings is when I receive a preservation notice, or ‘litigation hold’, from my legal department. The date on which I intended these messages to be deleted was 16 months before the Claimant sent a letter before claim to the Guardian, which is the point at which my legal department sent me a litigation hold notice.”

Mr Lewis denied that he believed litigation was “likely”. He explained that “almost all of the investigations I work on carry some degree of risk of legal action” but none of the legal letters he had received prior to publication in respect of other investigations had ever resulted in litigation. He said that based on the strength of the investigation, his assumption was that “the Claimant, if properly advised, would be told that any litigation would be very unlikely to succeed”. His expectation was that “the Claimant would, after the article was published, apologise for his behaviour and hire public relations experts to try and rehabilitate his career”. In his oral evidence, Mr Lewis acknowledged that litigation was “a possibility”, as it was for “the vast majority of investigations I work on”.

ii)

In her second witness statement, submitted in opposition to the strike out application, Ms Osborne said that while investigating Mr Clarke and working on the first article, she knew that litigation was a “possibility”. She also said, “I did not believe at this point that I was under any duty to preserve the messages, as we had not received a preservation order from the Guardian’s legal team”. In her oral evidence, Ms Osborne referred to the “potential” for litigation, describing it as a “prospect” and, at times of peak stress, “a worry”.

iii)

In her second witness statement, submitted in opposition to the strike out application, Ms Kale did not address the likelihood of litigation. She said only, “I did not at the time believe that we were under a legal duty to preserve documents and I was not aware of the practice of litigation hold”. In oral evidence, Ms Kale said that at times she “feared he might sue us”, but at other times she thought it would be “ill-advised” and that “he would not”.

1017.

Contrary to the Claimant’s submissions, none of the Guardian’s witnesses said that they knew (or believed) that litigation was “a likelihood” or “a contemplated likelihood”. Neither formulation was put to any of them, and the thrust of each witness’s evidence was to the contrary. None of them gave evidence that was inconsistent with their second statements. None of them were cross-examined on their second statements. Those statements were placed in the bundle at the Claimant’s request, and with the Defendant’s consent. They are therefore admissible as (unchallenged) evidence of their contents pursuant to CPD PD 32, para 27.2.

1018.

The Claimant’s contentions are unfounded. The extensive evidence that has been disclosed demonstrates that the Guardian had carried out a thorough investigation. There is no sensible basis for drawing an inference that the messages that were deleted – none of which were communications with sources – would undermine the Guardian’s case. The threads which Mr Lewis had intended to delete do not assist the Claimant. On the contrary, they include messages showing that Mr Lewis asked the reporters to include in the article any “positive things about Clarke” anyone said; and asked Ms Kale to listen carefully to an audio recording of a phone call made by Mr Maza to a source, and include in the article “as much as possible that undermines our case”.