High Court dismisses late application for disclosure of transcripts of audio files despite rejecting claim for litigation privilege

In a recent decision, the High Court has refused to order the disclosure of professional transcripts of audio files, where the audio files and some contemporaneous transcripts had already been disclosed: Noel Anthony Clarke v Guardian News & Media Ltd [2025] EWHC 550 (KB).

The court rejected an argument that the transcripts, which were of non-privileged telephone conversations with journalists, were privileged because they had been prepared for the purpose of litigation. While this is not surprising, it's a useful reminder that recordings, transcripts and verbatim notes cannot be privileged if the underlying conversation is not privileged.

The court nevertheless refused the application because of the delay in bringing it, the disruption to the trial that would be caused by granting the order and the lack of explanation as to why the material sought was important. The case therefore shows the importance of ensuring that a disclosure application is focused, brought in good time, and accompanied by a clear explanation as to why the material is necessary for the fair disposal of the trial.

While this case concerned an application for specific disclosure under CPR 31, as it was proceeding in the King's Bench Division, the same principles are likely to apply where a party seeks additional disclosure under Practice Direction 57AD in a case in the Business and Property Courts.

Background

This application was made in the context of proceedings for libel brought by actor Noel Clarke against Guardian News & Media Ltd.

During standard disclosure, a number of audio files were provided to the claimant, such as recordings of phone calls with journalists. Contemporaneous transcripts of some of these files were also disclosed. These transcripts had been produced by otter.AI, an artificial intelligence service, and the quality was uneven.

Following the exchange of disclosure, the defendant decided to commission professional certified transcripts of the audio files, and informed the claimant that it would be prepared to share these transcripts if the claimant agreed to share the cost. The defendant suggested that such transcripts would be required for trial in any event.

The claimant did not agree to share the costs and instead asserted that, if the defendant intended to rely on the certified transcripts, they should be properly disclosed.

When the claimant later threatened a disclosure application, the defendant responded that it had complied with its disclosure obligations by providing the audio recordings and contemporaneous transcripts. It said that the professional transcripts would not be needed for trial and also asserted that they were subject to litigation privilege.

The claimant applied for disclosure of the certified transcripts just over a week before the trial on liability. The application was heard on the second day of the trial.   

The claimant also applied for the removal of redactions the defendant had made to certain disclosed documents to protect confidential journalistic sources, under section 10 of the Contempt of Court Act 1981. That aspect of the decision is not considered in this blog post.

Decision

The High Court (Steyn J) refused to order disclosure of the professional transcripts.

The judge held that the defendant was not obliged to provide certified transcripts as part of its standard disclosure, as it had not had such transcripts when disclosure was exchanged and there was no obligation to obtain professional transcripts. Nor was there any need for the defendant to proofread or correct errors in the contemporaneous transcripts before they were disclosed.

Nevertheless, now that the defendant had in fact obtained certified transcripts, the court had the power to order specific disclosure pursuant to CPR 31.12.   

The judge rejected the defendant's argument that the certified transcripts were subject to litigation privilege because they had been brought into existence for the dominant purpose of conducting the litigation. The conversations that had been transcribed were not themselves privileged, and the authorities (including Property Alliance Group Ltd v RBS (No 3) [2015] EWHC 3341 (Ch), considered here) established that a transcript of a non-privileged conversation could not itself be privileged. It made no difference that the defendant had obtained the transcripts for the purpose of litigation.

However, while having some sympathy for the claimant's position, including because the defendant had initially suggested professional transcripts would be needed for trial, the judge was not persuaded that disclosure of the transcripts was necessary for the fair disposal of the trial. This was for several reasons:

• First, although the judge accepted that this category of documents was relevant to the defences of truth and public interest, because the recordings had been made in the course of the defendant's journalistic investigation, there had been little attempt to explain why the documents were important. The claimant already had nearly half of the files in audio form, and for nearly half of these also had the contemporaneous transcripts generated by AI. The judge was not persuaded by the claimant's submission that further material would be likely to show journalists asking leading questions, as there was no reason to think the extensive material already disclosed was insufficient to show the approach taken by the journalists.
• Secondly, the claimant was seeking a large amount of material, disclosure of which would impose an onerous task on the defendant and disrupt the trial.
• Thirdly, the claimant had known for some time of the shortcomings of the contemporaneous transcripts but had only brought the application very late in the day. No reason had been given for the delay, which of itself undermined the claimant's contention that the certified transcripts were necessary.
• Finally, the application was not properly focused. The claimant sought all of the certified transcripts, even though he had chosen to put only 12 of the 77 contemporaneous transcripts in the trial bundle.

The court therefore refused the application.