Huddleston v Control Risks: 1987

The plaintiffs were protesters against Apartheid. The defendant, a political risks consultancy, was to sell a report on the activities of anti-apartheid groups, their relationship with terrorist groups and their intentions. The claimants were concerned that the report might contain material that was defamatory of them and they wish to see it before it was released. They sought an order requiring the Defendant to permit them to inspect the report under section 33(1) of the 1981 Act conferring power to order ‘the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings’.
Held: Section 33(2) conferred a power to order the discovery of documents before the commencement of proceedings, but only in claims for personal injury or in relation to the death of any person. The claimants did not seek disclosure under this provision because their prospective claim did not fall within it. Accordingly, the claimant sought to inspect the document as ‘property’ within section 33(1). Hoffmann J said: ‘It seems to me that a written instrument or any other object carrying information such as a photograph, tape-recording or computer disc, can be both ‘property’ for the purposes of section 33(1) of the Act and a ‘document’ for the purposes of section 33(2). Whether for the purposes of a particular case it is the one or the other depends on the nature of the question which it is said may arise. In my judgment Parliament intended, whatever Marshal McLuhan might have said, to distinguish between the medium and the message. If the question will be concerned with the medium, the actual physical object which carries the information, the application is to inspect ‘property’ within section 33(1). If the question will be concerned with the message, the information which the object conveys, the application is for discovery and can be granted before writ only in the limited classes of proceedings to which section 33(2) applies. Thus in Re Saxton, dec’d, there was no question in issue about the message. The meaning of the writing was perfectly clear. The question was whether the medium, the characters written on a particular piece of paper, had been put there by the person purporting to have done so.
In this case the issue in any prospective libel action will be whether the defendants have published words defamatory of the plaintiffs. The plaintiffs are not concerned with the medium by which this is done; whether it is on A4 or foolscap, printed or typewritten, Roman or italics. What matters to them is the message. It follows that in my judgment this is not an application for inspection of property but an application for discovery which I have no power to entertain.’
Hoffmann J
[1987] 1 WLR 702
Supreme Court Act 1981 33(1)
England and Wales
Cited by:
CitedFairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .

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Updated: 31 March 2021; Ref: scu.514227