High Court holds strike out of case for destruction of documents only where perversion of course of justice and fair trial impossible

In Noel Clarke v Guardian News and Media Limited [2025] EWHC 222 (KB), the High Court dismissed Noel Clarke's (the Claimant) application to strike out The Guardian News and Media Limited’s (the Defendant) defence on the grounds that the Defendant had allegedly committed the common law offence of perverting the course of justice by deleting evidence. The judge held that the allegations were unfounded.

The judgment contains an interesting discussion of what a party must establish in order to strike out a case for perversion of the course of justice, the evidential burden that must be discharged for serious allegations, and the interplay between document preservation duties and the timing of litigation.

Background

The case arises from a series of eight articles published by the Defendant between April 2021 - March 2022, which reported that the Claimant, a well-known entertainment personality, was involved in serious misconduct, and unsavoury behaviour, based on allegations made by multiple women. The Claimant contends that these publications caused him significant reputational damage and financial loss. In April 2022, the Claimant subsequently issued a protective claim for defamation seeking damages, and later added a data protection claim. 

After a preliminary issue trial to determine the defamatory meanings of the articles, exchange of pleadings, disclosure and the exchange of witness statements, the Claimant applied, in December 2024, to strike out the Amended Defence in entirety, or alternatively the part of the Amended Defence concerning the public interest defence. 

The application to strike out 

Civil Procedure Rule 3.4(2) provides that the court may strike out a statement of case in certain circumstances, including where there has been an abuse of the court’s process or if it is otherwise likely to obstruct the just disposal of the proceedings.

The Claimant’s application asserted that the Defendant had perverted the course of justice by:

i) deleting evidence, specifically Signal messages and threads between three key journalists, one-to-one communications, audio recordings, and using 'disappearing messages,' knowing that the messages would be subject to litigation; and

ii) engaging in the ‘fabrication’ of correspondence to replace the deleted communications with new messages which had been carefully curated to benefit the Defendant in these proceedings.

The Claimant contended that messages between the journalists in around April 2021 requesting all prior Signal messages and threads to be deleted and to use a “new one, which will likely be disclosable in court”, demonstrated that the Defendant had deleted evidence in contemplation of litigation. The Defendant denied that litigation was in contemplation when these messages were sent.

The Claimant argued that deleting the Signal threads amounted to perverting justice (or attempting to), thereby providing grounds to strike out the defence. The Defendant denied this and further argued that the High Court could only strike out the defence if a fair trial was impossible. The Claimant countered that proving perversion of justice (or an attempt) was sufficient, and that the impossibility of a fair trial was an independent ground for striking out a statement of case. 

High Court's analysis 

The High Court quickly dismissed the serious allegation of the fabrication of evidence as unfounded. The Court’s analysis of the alleged deletion of evidence is considered below:

Was litigation in contemplation at the time the messages were deleted?

The High Court concluded that litigation was not reasonably contemplated and accepted that the pre-publication legal correspondence from the Claimant’s solicitors was routine prior to a high-profile article being published, and did not suggest proceedings were likely. The Defendant’s witness evidence that litigation holds were only issued upon receipt of a letter before claim was accepted. Therefore, the journalists were entitled to believe, based on the Defendant’s legal team’s guidance, that litigation was not in contemplation. The High Court also accepted that the deletions were made to remove peripheral documents in line with the Defendant’s data minimisation policy before being advised to preserve evidence. Ultimately, the High Court concluded that the mere possibility of future legal action or the Claimant seeking legal advice before publication was insufficient to trigger a duty to preserve evidence. 

What evidence had been deleted?

The High Court found that the Claimant’s allegations of deliberate and permanent deletion of all personal correspondence between the Defendant’s journalists were unfounded. Two Signal threads alleged to have been deleted were only deleted on one device, and there was no evidence that all one-to-one communications or audio recordings had been deleted. The only evidence actually deleted were four Signal threads with ‘disappearing messages’ enabled and potentially some direct Signal chats. 

Had there been a perversion of justice?

The elements of the offence of perversion of the course of justice not only requires conduct which has the tendency to pervert the course of justice, but also the intent to pervert the course of justice.

The High Court was not convinced that the deletion of evidence alleged by the Claimant had a tendency to pervert the course of justice, as the nature of the message threads was clear from the versions that survived the deletion attempt. It was difficult to see how these threads could change the outcome of the case, given the mass of other evidence. Furthermore, the High Court concluded that the Claimant’s application would fail due to the lack of intention to pervert the course of justice. The evidence was considered peripheral, deleted before any duty to preserve it arose, and handled according to the Defendant’s data minimisation policy and legal advice.

Impossibility of a fair trial – an independent ground?

The High Court considered whether the impossibility of a fair trial, after finding a perversion (or attempted perversion) of justice, is required to strike out a statement of case, as argued by the Defendant. After reviewing relevant authorities, the High Court held that both elements were necessary, especially since striking out an action or defence is not meant to punish, regardless of the conduct of the defaulting party:  striking out deprives one party of court access, which should only be done if it is proportionate after considering whether the conduct prevented a fair trial. 

The High Court also considered whether a fair trial was impossible in this case, setting aside the lack of perversion of justice, and concluded that this was not the case. The High Court determined that the truth defence would be established by witness statements from each party. It reasoned that deleting a small number of peripheral documents does not make a fair trial impossible, especially when thousands of documents and substantial witness statements have already been submitted. Therefore, the Court concluded that the Claimants’ application should also fail as a fair trial would be possible.

Key Takeaways

The judgment provides some interesting insights:

• Strike-out requires intentional misconduct and trial prejudice: courts will only strike out claims for pre-action document deletion if the claimant proves (a) deliberate acts intended to obstruct justice, and (b) those acts make a fair trial impossible. Mere deletion – even if careless – is insufficient;
• Trigger for preservation duty: organisations need only pause routine document deletion when litigation becomes a realistic expectation, not when litigation is merely possible. Pre-publication legal posturing (“rights reserved”) as in this case does not automatically require preservation;
• Allegations demand proof, not speculation: accusing opponents of evidence destruction or fabrication requires concrete evidence (e.g. messages instructing deletion, forensic proof of tampering). Courts will reject claims based on assumptions or rhetorical arguments.
• Proportionality over punishment: striking out a case is a last resort. Courts prefer other sanctions such as drawing adverse inferences, or imposing cost penalties unless misconduct significantly interferes with the trial process.

With thanks to Owen Greaves for his assistance in preparing this post.