LORD ASHCROFT v (1) ATTORNEY GENERAL (2) DEPARTMENT FOR INTERNATIONAL DEVELOPMENT [2002] EWHC 1122 (QB)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
[2002] EWHC 1122 (QB)Case No Case No: HQ 01X02621Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
LORD ASHCROFTClaimant(1) ATTORNEY GENERAL (2) DEPARTMENT FOR INTERNATIONAL DEVELOPMENTDefendants
Before
Mr Justice GrayMr Michael Tugendhat QC and Anna Coppola (instructed by Mr Kevin Bays of Davenport Lyons) for the claimantMr Andrew Caldecott QC and Jason Coppel (instructed by Treasury Solicitor) for the defendantsHearing dates : 21 and 22 May 2002Date 31 May 2002
[1]Mr Justice Gray : The nature of the applications There are before the court two related applications in this action: the first is for permission to re-amend the Particulars of Claim. The second is for further disclosure from the Defendants. It has been agreed that the disclosure application should be adjourned, so as to give the parties the opportunity to consider my decision on the former application and its impact on the Defendants’ entitlement to disclosure. The parties and the background[2]The Claimant, Lord Ashcroft, is a prominent and successful businessman with substantial interests in Belize and elsewhere. He was the Treasurer of the Conservative Party from 1998 until 2001. Part of the way through that term of office he was made a life peer.[3]As the case stands at present the Defendants are(i) the Attorney General, who is sued in his representative capacity on behalf of the Foreign and Commonwealth Office (“the FCO”), and(ii) the Department for International Development (“DFID”), which is another public authority coming under the aegis of the Secretary of State for International Development.[4]In July 1999 and December 2000 respectively publications about Lord Ashcroft appeared in the columns of the Times and the Guardian. The Times publication revealed information derived from(a) a memorandum compiled by Mr Drace-Francis, then the Head of the West Indian and Atlantic Department of the FCO, and addressed to Mr Moody of the DFID and(b) an internal telegram from Mr Baker, the British High Commissioner in Belize, to Mr Drace-Francis. The Claimant’s case as pleaded at present is that persons unknown within the FCO unlawfully disclosed those documents and that the resultant publicity given to them caused him to lose standing and interfered with his private life.[5]The Guardian publication(a) contained information from an internal memorandum from Mr Tim David, by then the British High Commissioner in Belize, which recounted a private conversation he had had with Lord Ashcroft and(b) quoted from a letter marked “strictly personal” written by Lord Ashcroft to Mr David. These disclosures are alleged to have been disclosed by one or more officials or ministers of the FCO and/or of the DFID with the same damaging consequences for Lord Ashcroft as in the case of the disclosures to the Times.[6]Predictably both articles were used extensively by the political opponents of the Conservative Party to discredit Lord Ashcroft in both his personal and political capacity. I make clear at the outset that I fully recognise the gravity of these proceedings both in terms of the effect of the disclosures on Lord Ashcroft and the importance of the issues to which they give rise. The existing proceedings[7]The action was commenced on 22 June 2001. As it stands at present it is characterised by Mr Andrew Caldecott QC for the Defendants as a straightforward case of breach of confidence and/or privacy giving rise to a conventional claim for damages.[8]After some delay the Defence was served on 07 September 2001. The defendants admitted that the documents in question were classified and official but denied responsibility for their having been leaked.[9]The procedural history thereafter is that the Claimant pursued an application for disclosure of documents on the basis of the pleadings as they then stood. The principal objective was to find out who had been responsible for the leaks to the press. Mr Bennett of the Treasury Solicitor’s Department emphasises in his witness statement how time-consuming the disclosure exercise was.[10]The Particulars of Claim in their original form contained no reference to the Data Protection Act (“DPA”) of 1984 or 1998. There was a claim for breach of statutory duty but that was alleged to arise under the Human Rights Act, 1998 (“the HRA”). However, whilst the case was proceeding, Lord Ashcroft energetically pursued applications for access to personal data concerning him pursuant to section 7 of the 1998 DPA. Applications made on his behalf between December 2000 and October 2001 yielded a number of documents. Many of them were, however, redacted on various grounds of which Lord Ashcroft has sought particularisation without as yet obtaining an answer. A sea change in the case for the Claimant[11]The case for Lord Ashcroft underwent a sea change in early 2002. Application was then made to make far-reaching alterations to the Particulars of Claim. A complete re-draft was prepared. New claims were introduced under the 1984 and 1998 DPA and for damages for the tort of misfeasance in public office. The person alleged to have been guilty of that misfeasance is Mr John Williams, the Deputy Head of News Department in the FCO press office at the material time. It is sought to add him as a defendant. The new pleading incorporates detailed reference to many of the documents which have been disclosed by the Defendants. The claim for damages has been elaborated and a claim for aggravated damages added. The draft re-amendment was sent to the Defendants’ solicitors on 27 March 2002. Shortly afterwards on 16 April 2002 an application was launched on behalf of the Claimant for substantial further disclosure of documents.[12]Mr Michael Tugendhat QC on behalf of Lord Ashcroft candidly explains that the replacement pleading was occasioned, firstly, by the disclosure made since the initial pleading (deficient though it is asserted to be) and, secondly, by the change of counsel representing Lord Ashcroft. General objections to the new pleading[13]Mr Caldecott makes a number of general criticisms of the Claimant’s re-pleading of his case. In reliance in part on the note in the CPR at 17.3.5 he submits that the approach of the court to amendments under the CPR differs somewhat from the traditional approach. The emphasis nowadays, he suggests, is upon ensuring that cases are dealt with justly, expeditiously and without undue expense and wastage of time. He accepts that if in point of law the new case is fairly arguable, the amendment should be permitted. Nevertheless Mr Caldecott suggests that the new pleading should be scrutinised so as to ensure that it is legally sound; that it is sufficiently particularised; that it bears on the core issues; that it is not inherently incredible; that it will not obstruct the ability of the court to manage the case and that it does not come too late.[14]Mr Tugendhat submitted that it is still the position that all amendments should be permitted unless they are demurrable. He adds that there can be no question of the amendment being refused on the ground of lateness, given that the case started less than a year ago. He says also that there is nothing to be gained by disallowing an amendment solely because, on a strict analysis, it is superfluous or appears in the pleading in the wrong place.[15]In my opinion the position under the CPR is this: to the extent that the proposed amendment introduces fresh causes of action or alleges previously unpleaded breaches of duty or other obligation, the test to be applied is whether the new case is arguable. So much appears from the cases noted at CPR 17.3.6. Where I think the approach of the court to amendments may differ somewhat from the previous practice is that the court will now be astute to ensure that the new case is pleaded in a way which is, in every sense, proportionate to the objective sought to be achieved in the litigation. By that I mean that the court will seek to ensure that the new case is not formulated in a way which will cause undue expense or which will consume an undue amount of the time of the court or of the parties or which is otherwise oppressive.[16]It is not, however, suggested that I can deal with this application on a root and branch basis. The changes to the Claimant’s case must be examined individually to see if they have legal validity and, if so, whether they should nevertheless be refused on the ground that they are disproportionate in the sense I have indicated or alternatively are speculative in the sense that the pleading is a pretext for obtaining disclosure of documents to support a case which, on the material at present available to him, the Claimant is unable to make good. Detailed examination of the Re-Amended Particulars of Claim[17]Before coming to the contested part of the pleading, I should record the fact that it is conceded by Mr Tugendhat that minor errors and omissions should be cured by making alterations to the following paragraphs: paragraph 5.3; 10; 11; 11.1; 13.5 and the positioning of the heading of paragraph 15. I need not spell out what those alterations are.[18]I come now to those parts of the statement of case as to which there is a live dispute. Paragraph 4.2.3(a)[19]Paragraph 4.2 lists certain documents containing information about Lord Ashcroft which are said to be held by the DFID. Paragraph 4.2.3(a) refers to memoranda relating to Lord Ashcroft and KPMG. It is conceded on behalf of Lord Ashcroft that no memoranda in this category were unlawfully disclosed or leaked by either Defendant. No mention is made of these documents in paragraph 14 or 15 of the pleading. I accept the Defendants’ contention that the reference to them is inappropriate and accordingly should be deleted. Paragraphs 5.3, 5.4, 5.7, 10 and 15: new claims under the DPA 1984 and 1998[20]It is convenient to take these paragraphs together because they all relate to the new claim for damages for breach of statutory duty under the 1984 and 1998 DPAs. Since the scheme is different under those two Acts, it is necessary to deal with them separately.[21]The 1984 DPA is divided into Parts. Part I includes section 2, which introduces “data protection principles” which “apply to personal data held by data users”. The principles are to be found in Schedule 1. They include such matters as the relevance, adequacy and accuracy of data held by data users. There is also a reference to the entitlement of an individual to be informed by the data user of personal data held about him or her.[22]Part II is headed “Registration and supervision of data users and computer bureaux”. As the title indicates, this Part deals with such matters as the register of data users; restrictions on the use of data; the manner in which applications for registration are to be made and the like. Sections 10 to 12 contain detailed provisions for the enforcement of the data protection principles by means of enforcement notices served by the Registrar. Non compliance is an offence: the Registrar may take steps to de-register any data user guilty of contravention of the principles. An appeal lies to a Tribunal.[23]Part III is headed “Rights of data subjects”. Section 21 provides for individuals to have a right of access to their personal data. Section 22 provides for compensation for individuals for inaccuracy in the data held about them. Section 23, so far as material, provides “(1) An individual who is the subject of personal data held by a data user or in respect of which services are provided by a person carrying on a computer bureau and who suffers damage by reason of(a) the loss of the data;(b) the destruction of the data without the authority of the data user… or(c) …the disclosure of the data or access having been obtained to the data without such authority aforesaid, shall be entitled to compensation from the data user or, as the case may be, the person carrying on the bureau for that damage and for any distress which the individual has suffered by reason of the loss, destruction, disclosure or access”.[24]Such being the scheme of the 1984 DPA, Mr Caldecott submits that an entitlement to damages under that Act arises and arises only under section 23 in cases where personal data has been lost, destroyed, disclosed or access has been obtained to it. He argues that the provisions in Part II of the Act are matters for the Registrar. Moreover the principles in Schedule 1 are, he submits, not free-standing duties imposed on data users; their breach does not sound in damages. In support of that contention Mr Caldecott relies on a passage from the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC [1995] 2 AC 633 ,731: “However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means…”.[25]Mr Tugendhat contends that, although, curiously, they are tucked away in a Schedule, the principles are nonetheless obligations imposed by statute on data users. He accepts that unfairness on the part of a data user may not in itself give rise to a private law claim for damages. But he maintains that the fact of unfairness will be relevant to compensation or alternatively by way of rebuttal of the defences available under the 1984 Act. He argues that, although the matters dealt with in Part II of the 1984 DPA are primarily for the Registrar, there is no reason why breaches of the principles should not be raised in the present proceedings. It would be absurd, he contends, to require Lord Ashcroft to commence parallel proceedings before the Registrar.[26]I accept that the only private law right to damages which is conferred by the 1984 Act arises under section 23. Mr Caldecott concedes, in my view rightly, that Lord Ashcroft can claim damages against the Defendants under section 23 for the alleged disclosure by them of the documents. But I do not accept that it is open to Lord Ashcroft in the present proceedings to claim damages for breach of the principles. Any such breach is a matter which by the terms of the 1984 Act is for the Registrar. In any event such a breach does not in my judgement give rise to any claim for damages. It cannot assist the Claimant to assert that the principles are relevant to the assessment of damages: that is not how the claim is at present formulated. If the principles are to be relied on in rebuttal of a defence which the Defendants may rely on, that should be pleaded in a Reply.[27]There is an additional, subsidiary objection to the allegation in paragraph 10.3 that the disclosure there alleged was contrary to the eighth principle. That requires appropriate security measures to be taken against unauthorised access to or alteration, disclosure or destruction of personal data. I accept the argument of Mr Caldecott that, whilst the fact of disclosure may be evidence of a failure to take security precautions, disclosure cannot of itself amount to a breach of the obligation to take security measures.[28]Paragraphs 5.3, 5.4, 5.7, 10 and 15 of the Re-Amended Particulars of Claim will have to be revised accordingly. The pleading must make clear that the claim for damages under the 1984 DPA arises only under section 23.[29]The position under the 1998 Act is entirely different: there is a free-standing duty on data processors under section 4(4) to comply with the principles which are set out in Schedule 1B part I. By section 13 breach of those principles does sound in damages, as does breach of any of the requirements of the 1998 Act. Section 14 confers a right to rectification, blocking, erasure or destruction of personal data. Although enforcing compliance with the principles is for the Commissioner, it is clear that her jurisdiction is non-exclusive so far as claims for damages by data subjects are concerned. Paragraph 5.5[30]A discrete point arises on paragraph 5.5 of the new pleading. The Claimant alleges that the Drace-Francis memorandum constitutes “sensitive personal data” within the meaning of section 2(g) of the 1998 DPA, because it bore the meaning that Lord Ashcroft had allegedly committed a criminal offence. The objection is taken that the memorandum does not in terms specify any particular offence and so is not caught by section 2(g). I reject that contention. It is in my view at least arguable that the reference in the memorandum to the laundry arrangements of Lord Ashcroft would be understood to be a reference to the criminal offence of money-laundering. Paragraph 6.2[31]The point is taken on behalf of the Defendants that the authentication by officers of the Defendants of the documents leaked to the Times cannot amount to “disclosure” so as to give rise to a claim for damages under section 23 of the 1984 DPA. In answer Mr Tugendhat relies on section 1(9) of the 1984 Act which defines disclosure as: “disclosing, in relation to data, includes disclosing information extracted from the data; and where the identification of the individual who is the subject of personal data depends partly on the information constituting the data and partly on other information in the possession of the data user, the data shall not be regarded as disclosed or transferred unless the other information is also disclosed or transferred”.[32]I am not persuaded that that sub-section assists the Claimant. Even so, I am not persuaded that, in the circumstances which arose in the present case, the argument that authentication constituted disclosure is bound to fail and I decline to strike it out. Paragraph 9.2[33]This sub-paragraph purports to be a reason why the documents in question are private and confidential. That being so, it appears to me that the claim that damage was sustained by the disclosure, which is introduced by the words “as in fact occurred”, is out of place and should be deleted. I will return to the nature of the loss and damage now alleged when I come to paragraph 16 of the statement of case. Paragraph 9.4.7[34]Whilst it is in my view arguable, by analogy with the admissibility of admissions against interest, that the comments of those within the FCO as to the damaging effects of the leaks are relevant and admissible, the same cannot be said of comments made by the Chairman of the Conservative Party. The reference to the comment made by Mr Ancram is accordingly disallowed. Paragraph 11.3[35]As I have already held, a right to damages does arise under the 1998 DPA for breach of the principles contained therein. The Claimant alleges that the disclosure of the documents amounted to a breach of the seventh principle, which requires data users to take appropriate technical and organisational measures against disclosure. I disallow this part of the pleading for the same reason as I disallowed the allegation in paragraph 10.3, namely that disclosure may be evidence of breach of the obligation to take such measures but cannot in itself amount to such a breach. Paragraph 12: the Knapp enquiry[36]This paragraph is in two parts: firstly it alleges that the internal inquiry undertaken by Mr Knapp following the leak to the Times was inadequate and, secondly, it complains of the failure to hold any inquiry into the leak to the Guardian. It is asserted that the FCO and the DFID were thereby variously in breach of their duties of confidence and their duties under the DPAs and under the HRA (by acting incompatibly with Article 8).[37]The first point taken by Mr Caldecott is that the duties relied on are manifestly inappropriate. He further contends that the complaints as to the inadequacy of the Knapp inquiry are flawed or trivial.[38]Mr Tugendhat concedes that, in relation to the inquiry into the leak to the Times, he cannot rely on the DPA 1998 or the HRA, neither of which were in force at the time. But he contends that proper enquiries are required by the eighth principle under the DPA 1984. In relation to the failure to hold any inquiry after the leak to the Guardian, Mr Tugendhat contends, in reliance on Kilic v Turkey (ECHR 28.3.00, unreported), that Article 1 of the Convention requires contracting states to carry out some form of effective investigation where there has been a breach of a Convention right. Mr Tugendhat further rejects the criticisms of the breaches relied upon and points out that the adequacy of the Knapp inquiry is already put in issue by Further Information supplied as to the claim on 10 July 2001. He adds that the reason for pleading paragraph 12 as part of the claim was that it was the Claimant’s understanding that the Defendants were adopting the position that the findings made by Mr Knapp were an end of the matter.[39]In my judgement this part of the Claimant’s case is fraught with difficulty. Taking first the alleged inadequacy of the Knapp inquiry, it does not appear to me that this can amount to a breach of any common law or equitable right of confidence or privacy; rather the opposite. As to the alleged breach of duty under the DPAs, I see no basis for the contention that the holding of an internal inquiry, however inadequately it may be said to have been conducted, can amount to a breach of the duty of the FCO under either the 1984 or the 1998 Act. As to Kilic , that was a case concerned with an allegation of breach of article 2, the human right to life, and it is not in my view to be taken to be authority for the existence of a duty to conduct an investigation in the case of every alleged breach of a Convention right. It is to be noted that the former is couched in horizontal terms (“Everyone has the right…”), whereas the latter is couched in vertical terms (“The High Contracting Parties shall secure…”).[40]As to the breaches of duty alleged, they are at best insubstantial. The Knapp inquiry was not directed at the authentication of the documents but rather with the circumstances under which their contents came to be disclosed to the newspaper. It is difficult to see why Mr Knapp should be criticised for not investigating DFID’s office in Barbados given that, on Lord Ashcroft’s case, it was the FCO and not DFID which was responsible for the leak. I do not consider that significance can sensibly be attached to a comment by Mr Knapp in the course of taking evidence from a witness.[41]Even if I am wrong in my view that there is no valid legal basis for this part of the claim, I would in any event have disallowed it in the exercise of my powers of case management. The avowed purpose of this litigation is to discover the identity of those responsible for the leaks. A possibly prolonged investigation into the manner in which Mr Knapp (who is not alleged to have been guilty of bad faith or involved in a cover-up) conducted his inquiry would be an unjustified diversion from the core issues and would be disproportionate. I should add that I do not accept that the adequacy of the Knapp inquiry is already in issue. The reference to it in the Further Information was in the context of the Claimant’s application for disclosure and does not amount to a substantive complaint. Paragraph 13[42]This paragraph introduces a new cause of action, namely misfeasance in public office, which was reviewed by the House of Lords in Three Rivers District Council v Governor and Company of the Bank of England [2000] 2WLR 1220 . In that case Lord Steyn at 1231-2 said:
“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintive. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful. … These decisions laid the foundation of the modern tort; they established the two different forms of liability; and revealed the unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith… The present case is not one of targeted malice. If the action in tort is maintainable it must be in the second form of the tort. It is therefore necessary to consider the distinctive features of this form of the tort. … The basis for the action lies in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals. It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith… The plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act”
. Lord Steyn added that causation is an essential element of the cause of action.[43]The official said to be guilty of misfeasance is Mr Williams, the third Defendant. It is clear from the opening words of paragraph 13 of the statement of case that he is charged with targeted malice and in the alternative with the second form of the tort mentioned by Lord Steyn. It is to be noted that the (so to speak) actus reus is the authentication of the documents by Mr Williams. The Claimant relies as evidence of his state of mind upon a record of words spoken by him on 27 July 1999 and on a memorandum compiled by him on 02 August 1999. It is to be noted that the August memorandum came into existence after Mr Williams had seen Mr Knapp and well after he authenticated the documents to the journalist.[44]The charge of misfeasance in public office is a grave one. Proof of the necessary state of mind requires clear evidence. Mr Tugendhat asserts that the purpose of authenticating the documents must have been to injure Lord Ashcroft. But that does not appear to me to be an inference which is warranted in the circumstances of this case or by the matters particularised in paragraph 13.1. It is to be borne in mind that by the time Mr Williams was asked by the journalist about the documents, they had (on the Claimant’s case) already been authenticated by Mr Moody. I have already drawn attention to the timing of the August memorandum. The mere fact that disclosure would obviously be damaging to Lord Ashcroft, even if true, does not justify the conclusion that such was the specific intention of Mr Williams. I therefore disallow the case of targeted malice on his part.[45]There remains the question whether there is an arguable case that the act of authenticating the documents was an illegal one carried out with reckless indifference to the probability of injury to Lord Ashcroft. As I understand it, the alternative case for the Claimant is that(i) authentication amounted to disclosure and so was, as Mr Williams knew or ought to have known, unlawful and(ii) that Mr Williams acted as he did recklessly, having foreseen that damage would or might result to Lord Ashcroft from the documents being publicised. Not without some hesitation, I have come to the conclusion that this allegation is one which I should allow to stand. Paragraphs 14 and 15[46]In the draft Re-Amended Particulars of Claim paragraph 14 follows immediately after paragraph 13, which contains the allegation of misfeasance. Since paragraph 14 alleges that the FCO was indifferent to the probability of causing damage to Lord Ashcroft, it is not surprising that paragraph 14 was assumed to form part of the Claimant’s case on misfeasance. Mr Tugendhat explained, however, that the rubric “Past and present breaches of the data protection principles, otherwise than by disclosure” which at present comes immediately before paragraph 15 was intended to come immediately before paragraph 14. He further pointed out that the allegation in paragraph 14 was not in any event directed at Mr Williams.[47]Accepting that explanation, I must consider whether the documents relied on in paragraph 14.1-3 inclusive and paragraph 15.3 give rise to any valid complaint by Lord Ashcroft. On the face of it the documents cited in paragraph 14.1-3 are relied on in support of the averment that the FCO was indifferent to the damage caused to Lord Ashcroft. That averment does not appear to me to be material to the case advanced on behalf of Lord Ashcroft that there were breaches of the DPA principles otherwise than by disclosure. The alleged indifference of the Defendants is not relevant to the allegation of breach. I therefore disallow it.[48]That does not, however, dispose of the question whether the documents referred to in these paragraphs can arguably ground a complaint by Lord Ashcroft. I have already explained why in my view under the 1984 DPA a right to compensation arises only under section 23. The documents in question all precede the 1998 DPA. But Mr Tugendhat argued that the first principle under the 1998 Act requires that data be processed fairly and that the information in the documents must be both accurate and relevant. His submission is that there is a continuing duty to prune irrelevant material stored otherwise than manually. Accordingly he contends that the Claimant is entitled to a remedy under section 14 of the 1998 DPA.[49]I agree that an arguable case can be mounted along these lines. The difficulty, however, is that, as it appears to me, that is not how the Claimant puts his case in paragraphs 14 and 15 in their present form. Whilst therefore I do not say that this part of the case cannot be advanced, I take the view that the wording of these paragraphs requires surgery. The surgery should include (but should not be limited to) the deletion from paragraph 15.1 of the words “without prejudice to the generality of the foregoing” and the deletion of paragraph 15.2, which appears to be no more than a vehicle for obtaining further disclosure. Paragraph 16: damage and distress[50]Mr Tugendhat contends in the light of Rotaru v Romania (application number 28341/95) 04 May 2000, and Mr Caldecott accepts, that damage to reputation is a legitimate head in the context of this case. Mr Caldecott draws attention, however, to the introduction for the first time of a claim that Lord Ashcroft suffered distress, injury to feelings and embarrassment both in his personal capacity and in his capacity as Treasurer of the Conservative Party. No such allegation is to be found in the existing pleading and the purported explanation for its introduction now (namely that it arises out of the new claims under the DPAs) is, he says, disingenuous. Whilst I accept that the arrival that this head of damage comes surprisingly late in the day – that may be a topic which the Defendants will wish to pursue in cross examination of Lord Ashcroft – that cannot in my view be a reason for disallowing the amendment if the allegation of distress is tenable in law.[51]There are particular objections taken to the pleading of this head of damage. Paragraph 16.2 includes the following prefatory words:
“The documents which were the subject of the subject of the various wrongful disclosures were calculated to, and/or did, damage Lord Ashcroft in his business relationships and in his office as Treasurer of the Conservative Party”
. It appears to me that, if, as would appear, Lord Ashcroft is alleging actual damage to his business or his political office, he is obliged to spell out what that damage consists in. The various matters canvassed in the remainder of paragraph 16.2 do not do so. There is for example no allegation that the tax-free deal for Lord Ashcroft’s businesses in Belize was affected.[52]Nor does it appear to me that the inclusion of the words “were calculated to” is legitimate. Mr Tugendhat sought to justify their inclusion by analogy with section 3 of the Defamation Act, 1952. But in a case such as the present, whilst Lord Ashcroft can seek to recover general damages for injury to his reputation and for distress, he is not entitled to circumvent the need to plead and prove actual damage by reliance on the likely effect of the disclosures. I should add that the references to Mr Mackilligan are open to the further objection that he is not an official of the FCO or the DFID and is not alleged to have been acting in cahoots with Mr Richards. The Defendants cannot be answerable for any damage caused by what he did. It therefore appears to me that paragraph 16.2 requires reconsideration. It cannot stand in its present form.[53]As to paragraph 16.3, whilst I note the reasons for supposing that the leaked documents were not provided to the Ceremonial Branch of the Cabinet Office, I do not think on that account that I should disallow this part of this paragraph. But the remainder of the paragraph, which relates to the Belize shipping register, appears to me to be purely speculative and to have little, if anything, to do with either the FCO or the DFID. Neither Sir Richard Mottram nor Mr Rowlands are officials of either body. There is no evidence that the leaked report went to the Ceremonial Branch. I should in any event have ruled against this part of the pleading on case management grounds. Paragraph 17: aggravated damages[54]I see no reason why in principle Lord Ashcroft should not claim aggravated damages in this case. I do not accept the contention of Mr Caldecott that CPR 16.4 (1) (c) requires that a claim for aggravated damages be pleaded at the outset. Lateness is not a ground for excluding these particulars, if they are otherwise legitimately prayed in aid and not purely designed to facilitate a disclosure application.[55]But I think Mr Caldecott is right when he submits that in this class of case, as in libel, other derogatory statements by the Defendants may be relied on in aggravation of damages but not derogatory statements by unconnected third parties: see Pearson v Lematre [1843] 5 M&G 700. In my judgement the reliance sought to be placed in paragraphs 17.1 and 17.4 on statements made by Mr Prescott and Lord Whitty and on publications in the Times fall foul of that principle and so must be disallowed.[56]Paragraph 17.2, for what it is worth, is unobjectionable. As to paragraph 17.3, the case sought to be made is that the leak was “calculated” (i.e. likely) to discourage Lord Ashcroft from resisting the policies of the FCO and the DFID in relation to tax concessions in Belize. It is significantly not alleged that he was in fact discouraged in that regard. Nor is it apparently alleged that it was the motive of the Defendants in leaking the documents to cause such discouragement. In these circumstances I cannot see how the case at present formulated could even arguably advance the entitlement of Lord Ashcroft to either general or aggravated damages. The pleading appears to have been drafted with disclosure in mind. Save for the free-standing allegation in paragraph 17.3.3, I disallow the application to amend in relation to this subparagraph both on grounds of legal validity and on case management grounds.

Cited in 4 later judgments