Clarke v Guardian News and Media Ltd [2025] EWHC 222 (KB)
The claimant, Noel Anthony Clarke, brought a claim against the defendant, Guardian News and Media Limited, for defamation and breach of data protection. The case was heard in the High Court of Justice, King’s Bench Division, Media and Communications List, with Mrs Justice Steyn DBE presiding.
The case concerned around eight articles published by the defendant, with the first and principal article titled, “‘Sexual predator’: actor Noel Clarke accused of groping, harassment and bullying by 20 women,” published online on 29 April 2021. The article alleged that Clarke was a serial abuser of women, engaging in unwanted sexual contact, harassment, and professional misconduct over a span of 15 years. Subsequent articles published between 30 April 2021 and 28 March 2022 echoed similar allegations.
The Application
The claimant sought to strike out the Amended Defence, particularly the defence of publication on a matter of public interest provided by section 4 of the Defamation Act 2013. The claimant argued that the defendant’s employees had deleted relevant evidence and fabricated correspondence to pervert the course of justice.
The court may strike out a statement of case if it discloses no reasonable grounds for bringing or defending the claim, is an abuse of the court’s process, or there has been a failure to comply with a rule, practice direction, or court order. The claimant relied on authorities concerning the preservation of documents and the duty to issue a litigation hold when litigation is reasonably contemplated.
Submissions by the Claimants and Defendants
The claimant’s counsel submitted that the defendant’s employees had deliberately deleted extensive evidence relevant to the proceedings, knowing that litigation was imminent. They also alleged that the defendant’s employees had fabricated correspondence to replace the deleted communications, thereby attempting to pervert the course of justice. The claimant’s counsel emphasised that the deletions and fabrications were intended to suppress unfavourable evidence and mislead the court.
The defendant’s counsel submitted that the deletions occurred before litigation was reasonably contemplated and were in line with the organisation’s data minimisation policy. They contended that the defendant’s employees were not under any duty to preserve documents at the time of the deletions and that the deletions did not have a tendency to pervert the course of justice. The defendant’s counsel also argued that the claimant’s allegations of fabrication were unfounded and that the claimant’s representatives had failed to provide any specific evidence to support these serious allegations.
Judge’s Decision and Reasoning
Mrs Justice Steyn DBE refused to strike out the Amended Defence. She provided a detailed analysis of her reasoning, which can be summarised as follows:
Timing of Deletions:
The judge noted that the deletions of the Signal messages occurred before litigation was reasonably contemplated. The defendant’s legal team did not issue a litigation hold until a letter before action was received on 12 August 2022, more than a year after the first article was published. The judge found that the deletions were in line with the organisation’s data minimisation policy and were not intended to pervert the course of justice.
Nature of the Deleted Messages:
The judge examined the content of the deleted messages and found that they were peripheral documents. The surviving threads, “Last Day” and “Final,” did not contain any material that would have changed the outcome of the case. The judge concluded that the deletions did not have a tendency to pervert the course of justice.
Intention to Pervert the Course of Justice:
The judge found no evidence that the defendant’s employees intended to pervert the course of justice. The employees were following their organisation’s data minimisation policy and were not under any duty to preserve documents at the time of the deletions. The judge emphasised that the employees were not lawyers and could not be criticised for following the legal department’s lead on when a duty to preserve documents applied.
Fabrication of Evidence:
The judge rejected the claimant’s allegation that the defendant’s employees had fabricated evidence. The judge found no foundation for this extremely serious allegation and noted that the claimant’s representatives had failed to provide any specific evidence to support it. The judge concluded that the deletion of documents did not amount to fabrication of evidence.
Fair Trial:
The judge determined that the deletions did not render a fair trial impossible. The truth defence primarily depended on the evidence to be heard at trial from numerous witnesses, and the deletion of a small number of documents did not preclude a fair trial. The judge also noted that no basis for suggesting a fair trial of the data protection claim would be impossible was put forward.
Criticism:
Mrs Justice Steyn DBE was critical of the serious allegations made by the claimant’s counsel against the defendant’s employees. The judge found these allegations to be unfounded and stated that such grave allegations should not have been made and publicly aired without foundation.
The judge also criticised the claimant’s solicitors for their approach in making these serious allegations. The judge noted that the claimant’s representatives had failed to provide any specific evidence to support the allegation of fabrication of evidence.
The judge rejected the claimant’s application to strike out the Amended Defence, finding that the deletions occurred before litigation was reasonably contemplated and were not intended to pervert the course of justice.
The judge found that the claimant’s evidence was insufficient to support the serious allegations made against the defendant’s employees. The judge noted that the claimant’s representatives had failed to provide any specific evidence to support the allegation of fabrication of evidence and that the deletion of documents did not amount to fabrication.
Conclusion
Mrs Justice Steyn DBE refused to strike out the Amended Defence, finding that the deletions occurred before litigation was reasonably contemplated, were not intended to pervert the course of justice, and did not render a fair trial impossible.