Supplementary memorandum submitted by Elaine Decoulos








[2007] EWHC 1213 (QB)

No. HQ06X02220



Royal Courts of Justice

Wednesday, 4th April 2007








B E T W E E N :




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Transcribed by BEVERLEY F. NUNNERY & CO

Official Shorthand Writers and Tape Transcribers




THE CLAIMANT appeared in Person.


MISS S. PALIN (instructed by Reynolds Porter Chamberlain) appeared on behalf of the First Defendant.








(As approved by Judge)



1. This is an application by the claimant in this libel action, Ms. Decoulos, for disclosure of a number of items. The present judgment deals with the first three items of which Ms. Decoulos seeks disclosure from the first defendants (Associated Newspapers), who were the publishers of the article of which Ms. Decoulos complains as being a libel on her.


2. It is necessary, I think, to say just a little about the nature of the claim. The publication complained of refers to claims that Ms. Decoulos had been harassing Mr. Schroder, who is the second defendant. The article is headed, "Billionaire haunted by his mistress". The paragraphs in that article which are germane to the present application are the last two paragraphs, which are in these terms:


"Bruno Schroder, clearly exasperated by the continuing court proceedings, tells me, 'Elaine [I interpolate that is Ms. Decoulos] has been into court on at least 30 occasions and she has lost every time. Costs have always been awarded against her. It was when she turned up at our house in Scotland that I had to take the first legal steps against her. There is no chance that we will be speaking again'."


3. In addition to suing Associated Newspapers, who published that article, Ms. Decoulos is also suing Mr. Schroder, on the basis that he contributed to that article, not least by what he is quoted as having said in that last paragraph. Furthermore, Ms. Decoulos is suing, as the third defendant, Baroness Suzanne von Maltzahn, who is described in the article as being the long term lover of Mr. Schroder, and with whom, as I understand it, he now lives. The nature of the claim, without going into details, is that she, the third defendant, is also liable for what was said to the journalist by Mr. Schroder because she conspired with Mr. Schroder to give the information to The Mail in effect in order to inflict damage on Ms. Decoulos. That is not a literal quote from the pleadings but I think it sufficiently gives the flavour of the nature of the case advanced.


4. For completeness, I should add that there is also a claim in libel against Mr. Harcus, the fourth defendant, who is a solicitor and was acting at the time for Mr. Schroder. I think he also has or does represent the third defendant as well.


5. There is an application pending, and due to he heard, I understand, on 23rd April, by the third and fourth defendants, but not by the second or the first defendant, to strike out the claim against them. It is for the purposes of that application that Ms. Decoulos seeks the disclosure to which I have referred. All of that is by way of preamble. I come now to the application.


6. The first item of which disclosure is sought is the tape and transcript of conversations between the first defendant's journalist and Mr. Schroder on 1st August 2005. That is the conversation which is said to have resulted in the two paragraphs at the end of the Daily Mail article which is the subject of Ms. Decoulos' complaint.


7. The first question I have to decide is whether, on the assumption that a tape or a transcript of that conversation exists, it would be disclosable. Miss Palin's position on behalf of Associated Newspapers is that whilst the tape or the transcript might be relevant as between Ms. Decoulos and Mr. Schroder, it has no relevance to the claim as between Ms. Decoulos and the third and fourth defendants, respectively, because it is a tape recording of a conversation which took place, as is accepted, between Mr. Schroder and the journalist and that is not the subject of the application to strike out which is due to be heard on 23rd April.


8. Ms. Decoulos advances the case that, because of her pleaded claims that both the third and the fourth defendants had a direct involvement in what Mr. Schroder said to the journalist, to the point where each of them is alleged by Ms. Decoulos to be responsible in law and liable to pay damages for what was said by Mr. Schroder, the tape recording is a document which is relevant to the issues which will arise on the striking-out application.


9. Ms. Decoulos appears today in person before me. I have to make every allowance for that, although she has become an able litigant in person, if I may say so. Knowing a certain amount about the issues that are going to arise in this action, even as between the claimant and the third and fourth defendants,

I take the view that any transcript or tape which exists or has existed in the past of that conversation between the second defendant and the journalist is relevant and would on ordinary principles be disclosable.


10. However, I am told by Miss Palin, on instructions, that the conversation was not recorded and that, therefore, no tape recording of it exists. That, of course, is not a complete answer to an application for disclosure if, as I have already found, the document in question is relevant, albeit no longer (and perhaps never) in existence.


11. As it happens, in the present case, and it is relevant to refer briefly to it, Ms. Decoulos says that she had a conversation with Mr. Richard Kay, in whose column the article appeared on or about 22nd November 2005, when the journalist said that he had a tape of the telephone conversation between the journalist and the second defendant. That conversation between Mr. Kay and the claimant took place on about 22nd November 2005.


12. Ms. Decoulos also referred me to a letter written by Mr. Robin Esser, executive managing editor of the Daily Mail, dated the 11th August 2005, in which he says, in its third paragraph,


"I must confess that I do not detect any material errors of fact [I interpolate, in the article complained of] and the experienced reporter who spoke to you has a full note of his conversation with you. There are also full records of the conversations with Mr. Schroder".


13. Miss Palin fairly takes the point that the reference to "full records of the conversations with Mr. Schroder" is not, on the face of it, to be taken to include a tape recording, although plainly it is being said that there are other records.


14. In all those circumstances, as I have already indicated, it seems to me that in relation to item 1 of the disclosure sought against the first defendant, it would be right for me to make an order that a witness statement be provided on behalf of Associated Newspapers as to that document, or that tape recording. I will hear submissions later as to who is the appropriate person to make that witness statement.


15. I move on now to deal with item 2, which I will deal with rather more swiftly. Item 2 consists of the notes of the journalist of his conversations with the claimant and Mr. Schroder on 1st August 2005. As to the relevance of those documents, they appear to me, for broadly similar reasons to those given in relation to item 1, to be relevant to the pending claim by the third and fourth defendants to strike out the claim against them. It seems to me to be germane to the complaint, in the way that it is put by Ms. Decoulos, that there should be disclosure of any records that were made of conversations at a very material time between the journalist and two of the principal protagonists, because those conversations may cast light on the involvement in this affair (to put it very broadly) of the third and fourth defendants respectively.


16. What is now said on behalf of Associated Newspapers is that the notes of the journalist are no longer in the control of Associated Newspapers. It is said that this was communicated to Ms. Decoulos on 14th March in a telephone conversation with Mr. Mackenzie of Associated Newspapers' solicitors, and, further, by a letter of 3rd April 2007.


17. Ms. Decoulos, in the course of her oral submissions, told me that her recollection of the conversation with Mr. Mackenzie on 14th March was that he did tell her that there were no notes. It may be open to question whether that implied that there had been notes at one time but that they were no longer in existence, or whether some other interpretation should be put on the conversation. In my view, it matters not.


18. Ms. Decoulos further indicated to me that she, apparently at my suggestion following a hearing which took place before me in December of last year, sent an email dated the 19th December 2006 to Mr. Mackenzie of the first defendant's solicitors, in which she asked him to ensure that the journalist, who is called Mr. Knight Bruce, and Mr. Richard Kay preserve their notes regarding the article complained of and that they should provide a copy of them to her. She received no reply to that letter.


19. In those somewhat unsatisfactory circumstances, it seems to me, and Miss Palin, in effect, I think, accepts that this is so, that I should take the same course in relation to item 2 as I have taken already in relation to item 1, namely, direct that a witness statement be served on behalf of Associated Newspapers dealing with the position in relation to item 2. In particular the witness statement must explain how it is that highly material documents -- and when I say "material", I mean material to the action generally -- were once in possession of a journalist, who is either employed by or works for Associated Newspapers, have passed, as is suggested, from the newspaper's control. I say that with particular reference to CPR 31.8(2), which defines the circumstances in which it can be said that a party has, or has had, a document in his control as being: "If (a) it is or was in his physical possession; (b) he has or has had a right to possession of it, or (c) he has or has had a right to inspect or take copies of it".


20. I turn finally to item 3, which is an application for disclosure of, "Correspondence and notes of conversations between Robin Esser, the managing editor of the Daily Mail, and the second defendant and his agents". It became apparent from Ms. Decoulos' submissions in relation to this item that what she is really after is any record that may exist of a conversation in which she says Mr. Esser told her that a third party telephoned, as she puts it, on behalf of the second defendant and told him that the quote from the second defendant was genuine. It seems to me that is much too slender a basis for my making the order sought in relation to item 3, and I decline to do so.


Submitted to the Committee March 2009