HIS HONOUR: The plaintiffs, Kevin Young, The Investors Club Limited ("The Investors Club") and Lisson Pty Limited are involved in real property investment. The prospective defendants, Neil Jenman and the Neil Jenman Group Pty Limited, might be described as consumer protection advocates. Before me is an application by the plaintiffs, pursuant to UCPR r 5.3, for preliminary discovery.
In about 2009 a dispute arose between the parties concerning certain publications on Mr Jenman's website calling into question the probity of the plaintiffs' enterprise. The plaintiffs commenced proceedings against the defendants in the Federal Court for defamation. In about October 2011, the parties entered into a deed of settlement to resolve those proceedings. It is not necessary to examine that deed in any detail. It is sufficient for present purposes to say that it was a term of the deed that the defendants (including their servants, agents and successors) would not publish any material referring to the plaintiffs, or any of their servants, agents, successors or associated entities, unless they followed a certain protocol set out in the deed. (This is the effect of the definitions in cl 1.1 and the terms of cls 2.1 and 2.2.)
Between December 2013 and September 2014, certain material was published referring to the plaintiffs. Preliminary discovery is sought to enable them to determine whether there is a basis to commence proceedings against the defendants for breach of the deed.
The material comprises emails, tweets, newspaper articles and a television program. It is primarily material published in August and September 2014 that is relied upon, but also raised are a number of emails sent between December 2013 and August 2014 by one Neville Baker. It appears that Mr Baker was an investigator assisting the defendants in the course of the defamation proceedings in the Federal Court. So much is apparent from the terms of an email sent by him to an undisclosed recipient on 10 November 2009, which is in evidence. It might also be noted that the email address shown was . There is a considerable volume of material in evidence, but it is sufficient to refer to aspects of it set out in a helpful chronology supplied by the parties.
On the weekend of 9 and 10 August, an article published in the Financial Review critical of property investment operators profiting from persuading citizens to engage in risky investments. In one of the articles Mr Jenman was quoted, describing such operators as "spruikers" who were "ripping" large sums of money from "victims." Also recorded were comments to similar effect by Mr Baker, who was described as "a former policeman-turned-private detective." None of the comments attributed to Mr Jenman or Mr Baker referred to the plaintiffs. However, in a "break out" within the article there was an account of the plight of a couple who had unwisely invested in a property after attending a meeting of The Investors Club, which was described by one of them as "like a cult."
There was a follow up article about this couple in the Financial Review the following week. In that article further comments by Mr Jenman about risky property investments of that kind, not specifically referring to that couple, were quoted. Similar comments are attributed to a "private detective" who, it was said, was "a former police officer who did not wish to be named." The inference was readily available that that was Mr Baker. In both articles Mr Jenman is described as a "consumer advocate", and Mr Baker or the unnamed former police officer was said to have spent years investigating investment schemes of this kind.
On 12 August 2014, a segment of the ABC's 7.30 program was directed to The Investors Club. The presenter introduced the segment by reference to a "property investment scheme that sold thousands and thousands of units around the country ... being accused of misleading conduct and fraud." The segment featured the couple referred to in the Financial Review articles who, it was said, were "driven to the verge of bankruptcy" by The Investors Club, and who claimed that "loan documents were falsified and their debt spiralled out of control." The couple were interviewed by a reporter, as was Mr Young. The reporter referred to their having "sought help from consumer advisors."
On the same day Mr Baker sent an email to one Paul Hulford using the address "mrtexposed@gmail.com", which suggested that the recipient might want to "keep an eye" on the 7.30 Report over the next few nights, as he (Mr Baker) had been told that there would be a story about The Investors Club "that Kevin would rather his members didn't hear about … ." On 13 August 2014, Mr Baker sent an email, using the same email address, to undisclosed recipients, providing a link to the online broadcast of the 7.30 program.
In the 7.30 program the reporter mentioned that The Investors Club had changed its name to "The Property Club." In fact, in October 2006 Mr Young and his wife registered a company, Property Club Pty Ltd. While it is not a party to these proceedings, I understand that the Property Club is effectively the successor of The Investors Club and the plaintiffs contend that it is an "associated entity" for the purpose of the deed. In a tweet of 14 August 2014, Mr Jenman referred to the Property "Club" being "exposed by ABC, accused of rip-off and fraud." The rest of the tweet, anything but complimentary to the Property Club, need not be quoted.
On 27 August 2014, Mr Baker sent an email to undisclosed recipients, again providing a link to the online broadcast of the 7.30 program, as well as making derogatory comments about Mr Young and The Investors Club. Further critical comments about Mr Young and the Property Club were tweeted by Mr Jenman on 3 and 4 September 2014.
On 18 September 2014, the Daily Telegraph published an article headed "spurious spruiking." The article reported an investigation by the Queensland Office of Fair Trading into the Property Club, said to have been founded by Mr Young and previously known as The Investors Club. Reference was made to complaints of ill- advised investments by two women in Brisbane and a couple in Sydney. The defendants were not mentioned in the article. However, on the same day that it appeared Mr Jenman published information on Twitter linked to it.
In November 2014, there was correspondence between the plaintiffs' solicitor, Mr David Geddes, and Nationwide News, the publisher of the Daily Telegraph, concerning the source of the article. In response to enquiries by Mr Geddes, legal counsel for Nationwide News denied that Mr Jenman was the source of any of the information in the article. It was revealed that Mr Baker was a source, having been contacted in early September 2014. However, it went on to say that Mr Baker did not provide any of the examples that were reported in the article, and that Nationwide News declined to provide any further details about the information provided by him. It added that Nationwide News had been informed that he was not employed by Mr Jenman, and was not acting for Mr Jenman in any capacity at that time.
On 27 October 2014 Mr Geddes wrote to the solicitors for the defendants making similar enquiries concerning the articles in the Financial Review and the Telegraph and the 7.30 Report. Copies of these articles and the transcript of the television program were attached. The defendants' solicitors responded that their clients denied having been the source of any information in relation to the plaintiffs "in any of the articles attached" (which I take it to mean newspaper articles and the 7.30 Report transcript). They also asserted that Neville Baker was not "an employee of the Neil Jenman Group Pty Limited or any related entity."
Also in November 2014, Mr Geddes wrote to the editor and the relevant journalists of the Financial Review in relation to the articles in that newspaper, and to the ABC producer and reporter in relation to the 7.30 program. The letter to the Financial Review sought the substance of information provided by Mr Jenman and Mr Baker, and whether any information was sourced from any other person understood to be acting on behalf of Mr Jenman. The letter to the ABC asked whether Mr Jenman or Mr Baker was the source of any information in relation to the program and, again, whether any information was obtained from any other person understood to be acting on behalf of Mr Jenman. There was no reply to either letter.
Following other correspondence between the parties' solicitors, Mr Jenman has removed his tweets relating to the plaintiffs from the Twitter website.
Rule 5.3(1) provides:
"5.3 Discovery of documents from prospective defendant
(cf Federal Court Rules, Order 15A, rules 6, 7 and 9)
(1) If it appears to the court that:
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief."
A helpful review of the principles governing preliminary discovery is to be found in the judgment of McColl JA in Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69, a case involving r 5.3. In the course of this review her Honour cited with approval passages from the judgment of White J in Morton v Nylex Ltd [2007] NSWSC 562. Relevantly for present purposes, her Honour said at [46] - [49], [51] - [52]:
"46 It is convenient to set out the key principles relevant to an application for preliminary discovery. To a large part these are taken from the primary judge's exposition of the jurisprudence in this area which was accepted by all parties. Some of the principles are drawn from case law developed in relation to Federal Court Rules O 15A r 6. There are textual differences between the two provisions. No party suggested anything turned on those differences for the purposes of this case.
47 First, '[i]n order for it to 'appear' to the Court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case': Morton v Nylex (at [25]).
48 Secondly, while 'the mere assertion of a case is insufficient…[i]t will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground': Morton v Nylex (at [25]).
49 Thirdly, 'belief requires more than mere assertion and more than suspicion or conjecture. [It] is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action': St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 (at 26) per Hely J, referring in turn to John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 (at [13], [14], [17] and [73]) per Emmett J. The use of the word 'may' indicates the court does not have to reach "a firm view that there is a right to relief': Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC7; (2008) 166 FCR 64 (at [58]).
…
51 Fifthly, 'the question posed by [UCPR 5.3(1)(a)] … is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent [but]… whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences': St George Bank Ltd (at 26) (emphasis in original); see also Morton v Nylex (at [33]). Thus application of the rule will not be precluded by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief, as there might be matters of defence which could defeat a prima facie case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500 (at [41]) per Lindgren J; referred to with approval by the Full Federal Court (French, Weinberg and Greenwood JJ ) in Telstra Corp Ltd (at [60]).
52 Sixthly, as Hely J said in St George Bank Ltd (at 26), 'the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case'."
The submissions of Mr Dawson, who appeared with Ms White for the plaintiffs, centred on the media publications: the newspaper articles and the television broadcast. Mr Dawson acknowledged that preliminary discovery would not be called for in relation to the tweets authored by Mr Jenman. However, he noted that those tweets had been removed and that the time and resources associated with bringing proceedings in respect of them alone would not be warranted, referring to s 60 of the Civil Procedure Act 2005. However, proceedings would clearly be warranted if it appeared that Mr Jenman was supplying material about the plaintiffs to the media outlets, in which event, as Mr Dawson put it, he would be "off the leash in a much more serious way."
Mr Dawson submitted that the material discloses that the plaintiffs have reasonable cause to believe they may have a right of action against the defendants. In particular, there is reasonable cause to believe that Mr Jenman, either himself or through Mr Baker, supplied material to the media about the plaintiffs in breach of the deed. As to Mr Baker, Mr Dawson relied upon his contribution to the publications against the background of his having been involved in the Federal Court proceedings in support of Mr Jenman in 2009. He argued that a question fairly arises whether Mr Baker was acting as the defendants' agent as to attract the relevant provisions of the deed.
Mr Dawson referred to the denial in the defendants' solicitors' letter, referred to above, that Mr Baker was an employee of the Neil Jenman Group or any related entity. He argued that, even if that were so, the whole of the material demonstrates relationship between Mr Baker and Mr Jenman amounting to agency.
In the course of oral argument, reference was made to a number of Mr Baker's emails between December 2013 and January 2014. What emerges from them is that Mr Baker was in communication with two employees of The Investors Club, who believed him to be representing or associated with Mr Jenman. Mr Baker on several occasions denied any such relationship with Mr Jenman, insisting that he represented no one. He maintained that stance, saying that he did not "specifically represent anyone else", in a lengthy email about The Investors Club to one Swarnie Condon. In the course of that email he referred to the case of the couple whose dealings with The Investors Club were reported in the Financial Review articles and the 7.30 Report.
Mr Dawson argued that it was significant that the Financial Review articles, in which the comments of both Mr Jenman and Mr Baker are reported, dealt with the case of that couple, suggesting that Mr Baker was the source of that information. Similarly, it is significant that Mr Baker sent an email to Mr Hulford foreshadowing the 7.30 Report story, conveying that he had advance knowledge of it. Further, Mr Baker was acknowledged by Nationwide News as a source for the Daily Telegraph article (although the information he provided was not revealed). Mr Dawson noted Mr Baker's 2009 email, disclosing that he was investigating Mr Young and The Investors Club for the purpose of the Federal Court proceedings, and he argued that it is likely that he continued in that role until those proceedings settled in October 2011.
Mr Dawson noted that Mr Baker's emails date from mid-December 2013, roughly 2 years after the settlement of the Federal Court proceedings. All this suggests, he argued, a continuing relationship between Mr Baker and Mr Jenman characterised by a joint interest in the pursuit of Mr Young and his corporate interests. Further support for that view is to be found in Mr Jenman's tweet about the 7.30 program of 14 August 2014, and Mr Baker's emails about the same program of 13 and 27 August 2014, referred to at [8] - [10] above. Notwithstanding Mr Baker's protestations in the emails to the contrary, he argued, the two men might be seen as working together during the period of the relevant publications.
Mr Dawson submitted that the plaintiffs had made all reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings by the correspondence with Mr Jenman and the defendants' solicitors, and the relevant media outlets, which I have summarised. He argued that it was not incumbent upon the plaintiffs to make enquiries of Mr Baker himself as, on their case, he was clearly in the defendants' camp: cf Hatfield at [87].
The discovery sought in the amended summons is, firstly, any communication concerning the plaintiffs or the Property Club between:
Mr Jenman and Mr Baker;
Mr Jenman and/or Mr Baker and Nationwide News, or any employee, servant or agent of that company;
Mr Jenman and/or Mr Baker and Fairfax Media Publications Pty Ltd, the publisher of the Financial Review, or any employee, servant or agent of that company;
Mr Jenman and/or Mr Baker and the ABC, or any employee, servant or agent of that corporation;
Mr Jenman and/or Mr Baker and any other person;
Any other servant or agent of Neil Jenman Group Pty Limited and any other person.
Also sought is discovery by the defendants of all documents "evidencing any contract for services, employment contract, retainer or engagement between Neil Jenman (or any company of which mr Jenman is associated, including the Neil Jenman Group Pty Limited) and Neville Baker (or any company of which Mr Baker is associated)."
Mr Dawson submitted that, in the light of the discovery sought, embracing correspondence and business records, it is likely that the defendants may have possession of documents that could assist the plaintiffs in determining whether to proceed against them. Accordingly, he argued, all the pre-requisites of r 5.3(1) have been met.
Counsel for the defendants, Mr Blackburn SC, challenged the application for preliminary discovery on two bases: the plaintiffs had not established that they had been unable to obtain sufficient information to decide whether or not to commence proceedings, and they had not established reasonable cause to believe that the plaintiffs may have a right of action against the defendants. He also took issue with the breadth of the orders sought by the plaintiffs, and raised a discretionary consideration to which I shall refer later.
The submission concerning the sufficiency of information for the plaintiffs to decide whether to commence proceedings was founded upon a letter written by the solicitor, Mr Geddes, to Mr Jenman on 3 October 2014. The letter referred to the tweets published by Mr Jenman and by "third persons" referring to the plaintiffs, and noted that Mr Jenman had been quoted in a number of publications in the media said to "refer to and concern" the plaintiffs. Mr Geddes wrote that the plaintiffs "considered his conduct to breach the terms of the Deed." He conveyed the plaintiffs' demand that Mr Jenman desist from such conduct, take steps to delete the offending material from his Twitter feed and confirm in writing that he would abide by the terms of the deed, "including that they relate to the Property Club." The letter sought Mr Jenman's confirmation by a specified date that he had taken steps to remove the material from his Twitter feed and that he would abide by the terms of the Deed. If he did not do so, the plaintiffs would take steps to enforce the Deed without any further notice to him, which would "likely involve an urgent application to the Supreme Court of New South Wales for an injunction, as well as a claim for damages for breach of the Deed."
Mr Blackburn's argument was that this letter conveys that the plaintiffs, far from being uncertain whether they could commence proceedings, had decided to do so. He referred to the judgment of White J in Morten v Nylex (supra) at [33], where his Honour said:
"Preliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring (Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (Lindgren J, Federal Court of Australia, 24 May 1996, unreported); St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 154 [26]; Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238 at 241 [15]; Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [15]-[19], [25])."
One of the citations in that passage was from the judgment of Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) FCA 1360, 211 ALR 147, a case dealing with the provision for preliminary discovery in the Federal Court Rules 2011. At 26, Hely J said:
"The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court … . Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award … ."
(References to authority omitted.)
Mr Blackburn exemplified the principle by reference to two cases involving r 5.3: Murray v Wheeler [2013] NSWSC 137 (Bergin CJ in Eq) at [42] ff, and Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883 (Barrett J) at [5] ff. In both cases preliminary discovery was refused on the basis that the plaintiffs had not shown that they were unable to obtain sufficient information to decide whether to commence proceedings, in the light of correspondence conveying that they considered that they had a basis to do so.
Mr Blackburn noted that Mr Geddes' letter of 3 October 2014 said nothing about preliminary discovery. He also noted that the plaintiffs had a basis to pursue Mr Jenman in relation to the tweets, and argued that what they sought to do by the present application was, to adopt the words of White J, to build up a case which they had already decided, or could decide, to bring. He also argued, referring to the quoted passage of the judgment of Hely J, that there was nothing in the present application to suggest that the plaintiffs sought to determine the availability and strength of possible defences.
However, Murray v Wheeler and Contour Building and Construction v Kerr turned on the terms of the correspondence involved and the other circumstances in the case. As Mr Dawson pointed out, the present case is significantly different. For example, in Contour Building and Construction, the plaintiff's solicitor informed the defendant by letter, "We have advised our client that he is entitled to commence proceedings against you … ." Mr Geddes' letter to Mr Jenman said no more than that his "clients" considered the relevant conduct to be in breach of the terms of the Deed, conveyed his clients' demands as to the remedial measures he should undertake, and the action his clients contemplated if he did not do so. The letter should be read in the context of Mr Geddes' letter to the defendants' solicitors, to which I have referred, in which information was sought as to whether Mr Jenman had been the source of information concerning the plaintiffs in the media publications.
As Mr Dawson pointed out, the earlier letter to Mr Jenman said nothing about taking proceedings arising from the newspaper articles and the television program. It is those publications which are the focus of the plaintiffs' present application, and rightly so. Their decision not to commence proceedings only in respect of Mr Jenman's tweets appears to be a responsible one, and it cannot be said that their pursuit of enquiries in relation to the media publications are an attempt to build up a case they already have.
As to whether the plaintiffs might be entitled to make a claim for relief against the defendants, Mr Blackburn submitted that the evidence failed to establish reasonable cause to believe that Mr Jenman authorised, contributed to, or was in any way responsible for the Daily Telegraph article or the ABC broadcast, or that he made any statement about the defendants to the Financial Review. Equally, he argued that reasonable cause was not established to believe that Mr Baker had made any statements about the defendants in any of the publications or, at the time of the publications, was employed by the defendants or was acting as their agent.
Mr Blackburn relied upon the denial by Nationwide News in its letter that Mr Jenman was the source of any information in the article. Nor was there any reference to Mr Jenman or Mr Baker in the 7.30 program. He noted that both Mr Jenman and Mr Baker were quoted in the first of the Financial Review articles, but nothing they were quoted as saying referred to the plaintiffs (or the Property Club); nor was there any such reference in the second article.
As to any relationship between Mr Jenman and Mr Baker, Mr Blackburn relied upon the denial in the defendants' solicitors' that he was an employee of the Neil Jenman Group or any related entity, and the information in the letter of Nationwide News that that company had been informed that he was not employed by Mr Jenman and was not acting for him in any capacity at the relevant time. He relied also on Mr Baker's persistent denials in the emails of December 2013 and January 2014 that he represented Mr Jenman or, indeed, anyone. He contrasted Mr Baker's use of the email address neville@jenman.com.au in 2009, when he clearly was assisting Mr Jenman in the Federal Court litigation, with his use in the more recent emails of common email services with addresses not suggesting any link with the plaintiffs. The evidence, Mr Blackburn argued, points to Mr Baker acting independently of Mr Jenman or any entity associated with him.
Put shortly, Mr Blackburn's submission was that the proposition that Mr Jenman was the source of any information about the plaintiffs in any of the newspaper articles or the 7.30 Report, either directly or through the intermediary of Mr Baker, did not rise above the level of suspicion or conjecture.
I do not agree with that. The plaintiffs led evidence, that they had to do, of Mr Jenman, the defendants' solicitors and the media outlets, but they are not bound to accept assertions in response of those enquiries that there is no relevant relationship between the defendants and Mr Baker. I accept Mr Dawson's arguments that the whole of the material gives rise to a reasonable belief that Mr Jenman had a part to play in the provision of information about the plaintiffs to the three media outlets mainly, if not entirely, through Mr Baker. There is reasonable cause to believe that at relevant times Mr Baker was, to use the term in cl 1.1 of the Deed, the agent of Mr Jenman, even if he was not employed by him or any of his corporate interests. This, of course, may not be the case but, as Mr Dawson pointed out, that is the point of an application for discovery and of the remedial benefit which that process confers.
I am satisfied that reasonable enquiries to obtain information to decide whether or not to commence proceedings were made and that, in the circumstances, the plaintiffs cannot be criticised for not having made enquiries directly of Mr Baker. He could be expected to deny any association with Mr Jenman of the kind propounded by the plaintiffs, but for present purposes they would not have to accept that denial.
Mr Blackburn also challenged the breadth of the documents sought in the amended summons, should preliminary discovery be ordered. He pointed out that para 1(a) would apply to any communication between Mr Jenman and Mr Baker about the plaintiffs during the relevant period, which could extend to any exchange between the two men in which any of the plaintiffs was mentioned. On the face of it that would be consistent with the terms of the Deed, but Mr Blackburn argued that the Deed would need to be interpreted with an eye to its commercial purpose, citing International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at [8] (160). He also challenged para 1(h) to (j), relating to any communication about the plaintiffs in the relevant period between Mr Jenman and any other person, Mr Baker and any other person, and any other servant or agent of the Neil Jenman Group and any other person, describing this as "just a massive fishing expedition."
Plainly enough, what the plaintiffs seek are documents comprising communications about the plaintiffs' conduct in the property investment field and, presumably, that is how the orders sought in the amended summons should be understood. I would be happy to qualify the orders in that way if the parties require it, and I shall raise that matter when this judgment is handed down. Understood in that way, it appears to me that the orders sought in para 1(h) to (j) are appropriate, given the breadth of the terms of cl 2.1 of the Deed and the protocol in 2.2 providing for a departure from those terms.
Finally, Mr Blackburn was concerned that any discovery of documents be for the purpose only on the proceedings contemplated, that is, proceedings for enforcement of the Deed, and should not be used for the purpose of proceedings in defamation or similar reputational claims, which could raise different issues and different discretionary considerations. Mr Dawson acknowledged as much, making it clear that it is for the purpose only of proceedings for breach of the Deed that the orders are sought. Nevertheless, Mr Blackburn sought, as condition of ordering preliminary discovery, that an undertaking by the plaintiffs that the use of any documents produced would be so confined. In the light of Mr Dawson's stance, it does not appear to me that such an undertaking is required. Mr Dawson said, however, that there would be no objection to a condition that if, upon inspection of the material produced, the plaintiffs wished to assert a cause of action based on defamation, they would need leave to do so. For more abundant caution, I would impose such a condition.
Accordingly, I propose to make an order for preliminary discovery. I would make an order in the terms sought in the amended summons, subject to hearing the parties on the additional matter which I have raised, and I would impose the condition to which I have referred. I would then direct the parties to prepare short minutes and, if necessary, I shall hear argument on costs.
[2]
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Decision last updated: 16 December 2015