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Case No: QBENI 2000/0219/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE MORLAND)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19 April 2000
B e f o r e :
MASTER OF THE ROLLS
LORD JUSTICE PILL
and
LORD JUSTICE MAY
- - - - - - - - - - - - - - - - - - - - -
|
SIR
ELTON HERCULES JOHN & ORS
|
Claimants/
Respondents
|
|
-
AND -
|
|
|
EXPRESS
NEWSPAPERS & ORS
|
Defendants/
Appellants
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
The Hon Michael Beloff QC and Mr Patrick Moloney QC (instructed by
Messrs Richards Butler, London EC3A 7EF for the Appellants)
Mr David Pannick QC and Mr Neil Calver (instructed by Messrs Eversheds,
London EC4Y 4JL for the Respondents)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD WOOLF MR :
1. This is a judgment of the Court. It is an appeal from an order made by Mr
Justice Morland on 3 March 2000. The defendants are respectively the company
responsible for the publication of the Express and Sunday Express Newspapers,
the Editor of those newspapers and a journalist employed by the newspapers.
2. The Order made by the judge required the second and third defendants to
serve on the first four claimants' solicitors, Eversheds, an affidavit stating
whether they knew the identity of the person or persons who provided the first
defendant with a copy of the draft of an advice of counsel which was prepared
for Sir Elton John on the instructions of the fifth claimants, who are a firm
of solicitors. The Order also required the second and third defendants to
identify those persons, if they were known to them, and to state all facts and
matters of which they know which would or might reasonably and sufficiently
assist the claimants to identify that person or persons. The appeal is brought
with the permission of Morland J.
The Facts
3. So far as they are known the facts are not in dispute. Litigation is
taking place between the first four claimants and the well-known firm of
accountants, Price Waterhouse, Coopers and Anr. In that litigation a question
arose as to whether a conflict of interest existed which would make it
inappropriate for Eversheds to continue to act as the claimants' solicitor in
the litigation. Mr Jonathan Hirst QC and his junior, Mr Neil Calver, were
instructed to advise on the position. Both Mr Hirst and Mr Calver are members
of Brick Court Chambers ("the Chambers"). By 26 January 2000, Mr Calver had
prepared a draft advice. Counsel's names appeared on the advice which was
dated 26 January 2000. The draft was placed in a sealed envelope and delivered
to Mr Hirst at his office at the Bar Council. Mr Hirst read the draft and made
manuscript annotations. On his return to Chambers the draft was discussed by
both counsel.
4. The draft was probably left in Mr Calver's room in Chambers over night.
The following day Mr Calver prepared the final advice which was duly signed and
sent to the appropriate partner of Eversheds so that it arrived around
lunchtime the same day. If Mr Calver followed his normal practice, the draft
advice would have been torn in half and deposited in a waste paper bin. By 2
February a copy of the draft had come into the possession of the third
defendant. At approximately 2.45 pm on that day Ms Baird in the presence of
another journalist tore the document she had received into small pieces. It
was subsequently disposed of.
5. Having failed to contact Mr Valner, the relevant partner of Eversheds, on
the day before, Ms Baird spoke to him on 3 February. It was obvious from this
telephone call that Ms Baird was aware of the contents of the draft advice.
However, it is unclear whether she had the version which Mr Hirst had
annotated. It is also reasonably clear that the document which had come into
her possession was either the original or a copy of the draft which had
originated in Chambers.
6. On 3 February 2000 an injunction was obtained without notice from Hallett
J. restraining the publication of the contents of the advice. The defendants
have observed the terms of the injunction and have not published the
information which came into their possession. However, by coincidence, on 4
February 2000, the Express Newspaper published an article under the headline
"Sir Elton's hair-raising battle with the tax man". The contents of the advice
were topical and material which the defendants would have wished to publish if
they had not been restrained from doing so.
7. Prior to the hearing of the appeal, someone - it is not suggested that
person had any connection with the parties to this appeal - placed the contents
of the advice on the internet. On the day of the hearing of this appeal the
claimants, having become aware of this, obtained an injunction to prevent
further publication. The person who was responsible for this action has so far
not been identified. Both parties have submitted written evidence, as to
whether the person could be identified, which conflicts. We do not consider
that it is necessary to resolve this conflict but merely note the position.
8. The Chambers were naturally concerned about the breach of security which
had occurred. They did not, however, carry out any form of investigation,
either among the 55 members of chambers, the four pupils, the three or four
mini-pupils or the staff of 25 clerks etc. In addition there is a firm which
is employed to carry out cleaning and a firm employed to carry out security
services. Between eight and 13 identifiable people could have been engaged to
perform these duties. They were not questioned. Visitors to the Chambers,
including solicitors and clients, were also not approached.
9. The judge was right to say :
"It is a matter of speculation who it was that obtained the draft advice or a
photostat of it. In the absence of any evidence that there has been a leak of
confidential information before or since this incident, it is unlikely that the
culprit is in-house. It is more likely to have been an employee of the
cleaning firm, the outside waste disposal company or possibly a scavenger on a
waste dump. Whoever it was, I consider that it is unlikely that the person
would have passed the draft advice direct to Ms Baird. The probabilities are
that the culprit passed on the draft advice for financial reward to a
professional hawker to the media of confidential information about
celebrities."
10. The judge also indicated that Ms Baird had acted entirely properly in
taking the steps which she had to protect her source. This is obviously
correct. He also endorsed everything said by Miss Boycott in paragraph 3 of
her statement which says :
"(a) It is a long standing journalistic principle not to reveal the source of
confidential information provided for possible publication.
(b) This principle is recognised by the Code of Practice of the Press
Complaints Commission which is annexed to this written statement. Paragraph 15
of that Code provides ... that :
'Journalists have a moral obligation to protect confidential sources of
information'.
(c) Similarly, the Code of Conduct of the National Union of Journalists, which
I also annex to my statement, states ... that :
'A journalist shall protect confidential sources of information'.
(d) The reason for the rule is that it is vitally important, if the press is to
perform its public function in our democracy, that a person possessed of
information on matters of public interest should not be deterred from coming
forward by fear of exposure. To encourage such disclosures, it is necessary to
offer a thorough protection to confidential sources generally.
(e) If a newspaper or journalist were known to have disclosed a confidential
source, the flow of information to them would be likely to dry up. As is
obvious, if flow of information to newspapers dries up, there are serious
consequences for investigative journalism and for the publication of material
in the public interest, as well as for the newspaper and journalist
concerned."
11. There had been no previous incident of this sort involving the Chambers.
Since the matters came to light, the Chambers have reviewed their security and
have introduced precautions which should make it more difficult for there to be
a repetition of what has occurred. No system, however, can be entirely
foolproof.
The Judge's Approach
12. Morland J carefully examined the legal principles which have to be
applied. He referred to the importance of a free, independent and vigorous
press and cited from Lord Steyn's speech in R v Home Secretary ex parte
Simms [1999] 3 WLR 328 at p.337B-C where Lord Steyn said :
"The free flow of information and ideas informs political debate. It is a
safety valve: people are more ready to accept decisions that go against them if
they can in principle seek to influence them. It acts as a brake on the abuse
of power by public officials. It facilitates the exposure of errors in the
governance and administration of justice of the country."
13. Morland J then added :
"So that journalists can effectively discharge their right indeed their duty
to expose wrongdoing, abuse, corruption and incompetence in all aspects of
central and local government and of business, industry, the professions and all
aspects of society, they have to receive information including confidential
information from a variety of sources including seedy sources and disloyal
sources."
14. He pointed out that the codes referred to by Miss Boycott are buttressed
by statute in s.10 of the Contempt of Court Act 1981. S.10 provides :
"No court may require a person to disclose, nor is any person guilty of
contempt of court for refusing to disclose, the source of information contained
in a publication for which he is responsible, unless it be established to the
satisfaction of the court that disclosure is necessary in the interests of
justice or national security or for the prevention of disorder or crime."
15. He added that :
"that the principle of non-disclosure of sources remains supreme unless
overridden by the establishment of the necessity of disclosure for a specified
interest."
16. The judge referred to the relevant passages in Lord Bridge's and Lord
Oliver's speeches in X Ltd v Morgan Grampian Ltd [1991] AC 1 at
p.40D-41F and p.53C and at p.43F and p.54B. He also adopted the speech of Lord
Griffiths in Re an Inquiry under the Company Securities (Insider Dealing)
Act 1985 [1988] 1 AC 660 at p.704A-E where Lord Griffiths said :
"What then is meant by the words 'necessary ... for the prevention of ...
crime' in section 10? I do not think that much light is thrown upon this
question by an elaborate discussion of the meaning of the word 'necessary'.
'Necessary' is a word in common usage in everyday speech with which everyone is
familiar. Like all words, it will take colour from its context; for example,
most people would regard it as 'necessary' to do everything possible to prevent
a catastrophe but would not regard it as 'necessary' to do everything possible
to prevent some minor inconvenience. Furthermore, whether a particular measure
is necessary, although described as a question of fact for the purpose of
section 10, involves the exercise of a judgment upon the established facts. In
the exercise of that judgment different people may come to different
conclusions on the same facts; for an example of this one has to look no
further than Secretary of State for Defence v Guardian Newspapers Ltd.
But this cannot be avoided and the task of the judge will not be lightened by
substituting for the familiar word 'necessary' some other set of words with a
similar meaning. I do not myself think that it helps to consider the meaning
of 'necessary' when used in the narrow context of discovery of documents and
then apply it to the very broad considerations that will arise when considering
the four heads of public interest identified in section 10. I therefore derive
no assistance from the discussion of the word 'necessary' in Air Canada v
Secretary of State for Trade [1983] 2 AC 394.
I doubt if it is possible to go further than to say that 'necessary' has a
meaning that lies somewhere between 'indispensable' on the one hand, and
'useful' or 'expedient' on the other, and to leave it to the judge to decide
towards which end of the scale of meaning he will place it on the facts of any
particular case. The nearest paraphrase I can suggest is 'really needed'."
Morland J also reminded himself of the approach adopted by the European Court
in Goodwin v The United Kingdom [1996] 22 EHR R123.
17. Mr Beloff QC, on behalf of the defendants, made only limited criticisms of
the judge's approach to the law. He did, however, suggest that the judge had
wrongly attached the same importance to the private interests of Sir Elton
John, in preserving his confidentiality, as he did to the public interest in
protecting a journalist's source of information. But this criticism is not
justified. In coming to his decision that the necessity for disclosure in the
interests of justice had been clearly established the judge was not only
concerned with Sir Elton John's private interests. He was influenced by the
need to protect the legal professional privilege which would undoubtedly have
attached to the advice if it had not come into the hands of the newspaper in
the public interest. Mr Beloff argued that s.10 should not be interpreted so
as to protect a wide class such as lawyers and clients as a whole. For this
purpose he referred to the decision of the European Court in Goodwin
paras. 35 and 45. However, this is precisely what s.10 can protect. The
authorities make it clear that a broad approach should be taken to what is
meant by the interests of justice in s.10. The need for clients to be able to
consult their lawyers with assurance that they can do so without risk of their
confidence being betrayed is of general importance. The judge cited Lindsay
J's speech in Saunders v Punch Ltd [1998] 1 WLR 986 at p.998C where he
said :
"the preservation and protection of legal professional confidence as a
towering public interest."
18. If one incident of this sort could damage this well-established principle
of confidentiality, then this would support a submission that disclosure of the
culprit might be necessary to protect the interests of justice for the purposes
of s.10. The judge was of this opinion. This is clear from the following
paragraphs of his judgment :
"Clearly if there is a person or there are persons around who search for and
select confidential information subject to legal professional privilege and
hawk it around for passage to the media, the achievement of justice will be
endangered.
Clients will lose faith in their lawyers. Solicitors will lose faith in
Barristers. Members of Chambers and their staff will lose faith in each other.
Suspicion and mistrust will abound (see per Schiemann LJ in Camelot Group
Plc v Centaur [1999] QB 124 at p.137G).
Such a source presents a very real and continuing danger to the interests of
justice threatening the confidentiality of legal professional privilege, a
cornerstone in the achievement of justice. Balancing the competing interests
of justice and of investigative journalism, in the exercise of my discretion in
my judgment I do not consider it disproportionate to order and do so order the
Defendants to disclose the identity of the source. In order to give the
Defendants reasonable time to consider my judgment I order disclosure by not
later than noon on Wednesday."
19. Having made these comments the judge proceeded to balance the competing
public interests which are involved in this case. Ordinarily when a judge
makes his decision in this way there is little scope for this Court to
intervene.
20. In this case, however, the Court is in a position to ascertain and then
weigh the facts as well as the judge because no witnesses were called and the
facts are largely not in dispute. We are therefore in an equally good a
position as the judge to draw the appropriate inferences from the facts.
Accordingly the outcome of this appeal depends on whether the judge attached
far too much significance to what would be the consequences to legal
professional privilege if the culprit was not detected.
Our Conclusions
21. It is not in dispute that, but for the fact that we are concerned here
with a journalist's source of information, this is a situation where it would
be appropriate for the court, in the exercise of its discretionary equitable
jurisdiction, to order a person who has become involved in the tortious acts of
others to assist the person who has been wronged by providing information as to
the identity of the wrongdoers. This has been well settled since the decision
of the House of Lords in Norwich Pharmacal v Customs & Excise
Commissioners [1974] AC 133, Lord Reid at p.175B. A statutory fetter is,
however, placed on the exercise of this equitable jurisdiction by s.10 of the
Contempt of Court Act 1981. Absent s.10, the common law would have been
developed to provide a similar protection to that provided by s.10 because it
also accepts that a high level of protection should be attached to freedom of
the press.
22. S.10 imposes on the judge a two stage process of reasoning. First, he has
to decide whether disclosure is necessary in the interests of justice etc. If
he is not so satisfied then he cannot order disclosure. If he is so satisfied,
he still is left with the task of deciding whether as a matter of discretion he
should order disclosure. The second stage involves weighing the conflicting
interests involved; the need for disclosure on the one hand and the need for
protection on the other.
23. The recent decision in Camelot Group Plc v Centaur Communications
Ltd [1999] QB 124 also involved a leak of confidential information and
s.10 of the Contempt of Court Act 1981. This Court considered that the judge
in that case was right to decide that the public interest in enabling the
plaintiff to discover a disloyal employee, who was engaged at a high level and
who leaked confidential information, was greater than the public interest in
protecting the sources of journalists. Schiemann LJ said towards the
conclusion of his judgment (at p.138C-E) :
"To some extent the effect of disclosing the identity of one source who has
leaked unimportant material can have a chilling effect on the willingness of
other sources to disclose material which is important. If the other sources
are put in the position of having to guess whether or not the court will order
disclosure of their names then they may well not be prepared to take the risk
that the court's decision will go against them. That is a consideration,
however, which will only be met if there is a blanket rule against any
disclosure. That is, however, not part of our domestic law or of the
Convention. So the well informed source is always going to have to take a view
as to what is going to be the court's reaction to his disclosure in the
circumstances of his case."
24. This paragraph of the judgment was referred to in argument. It was
suggested that it indicates that it was Schiemann LJ's view that unless there
could be a "blanket rule" against any disclosure, the protection provided for a
source is valueless. This would be to misread what Schiemann LJ said. He is
recognising that only a "blanket ban" would provide total reassurance for the
source but he was not suggesting that a more limited protection would not be
preferable to no protection. S.10 itself does not contemplate a total ban. It
does indicate that by enacting s.10 Parliament was intending that disclosure
should be ordered only if a compelling case for doing so was established. As
in Camelot the employee was working at a high level the case was made
out. That does not mean that on the different facts here the same conclusion
should be reached.
25. In Saunders v Punch Ltd [1998] 1 WLR 986 Lindsay J had to balance
the public interest in the protection and preservation of legal professional
privilege against the public interest in the disclosure of a source of
information published in breach of that privilege. Lindsay J, having referred
referred to R v Derby Magistrates' Court, ex parte B, went on to point
out that "it is possible to exaggerate the force of the argument that once
any exception to the general rule is allowed the client's confidence is
necessarily lost" and that he had considerable difficulty "to picture a client
holding material back from his advisors because of a fear that if the
confidence created was somehow broken the court, whilst coming to his aid with
an injunction might, by reason of a modern statutory provision and of the
careful weighing up of the conflicting public interests which it requires,
decide not necessarily to assist him further with a disclosure order".
26. Mr Beloff also relies on the judgment of Lindsay J in Saunders v
Punch in support of his submission that disclosure of the source cannot be
shown to be "necessary". This is because the Chambers made no attempt
themselves to trace who was responsible for stealing the advice. Morland J
thought that the most likely culprit would be an employee of the Chambers
cleaning contractors. He added that whoever was the culprit "would probably
need a go-between so that the confidential document could reach the
journalist". Morland J may be right as to this, but because of the limited
information available any opinion as to this has to be speculative. In these
circumstances, he concluded that any enquiry conducted within Chambers was
likely to be "utterly impracticable". He did, however, regard the omission to
conduct an enquiry as a factor to be weighed in the scales though he clearly
attached less weight to this factor than Lindsay J who said at p.997 D-E :
"To an extent, whether disclosure of a source is 'necessary' in the interests
of justice can depend on whether the person seeking disclosure has made any
attempt other than by applying to the court to find the source for himself and
whether any such attempts, were they to be made, would have had any real
prospects of making the compulsion of the court order unnecessary. I do not
say that the making of such attempts is a necessary precondition of the court's
assistance, but its absence can be a powerful, even a decisive, factor against
the intervention of the court."
27. Of the two approaches, Morland J and Lindsay J, it is the approach of
Lindsay J which is to be preferred. Before the courts require journalists to
break what a journalist regards as a most important professional obligation to
protect a source, the minimum requirement is that other avenues should be
explored. It cannot be assumed that it will not be possible either to find the
culprit or, at least, to narrow down the number of persons who could have been
responsible. When weighing the conflicting public interests involved, it is to
be remembered that there is no certainty that ordering a journalist to reveal
her sources will be any more successful. If it is not successful, damage will
be caused to the public interest in protecting confidential sources without any
compensating benefit to the competing public interest of protecting
professional privilege.
28. While recognising that whenever there are conflicting public interests to
be balanced, there is room for opinions to differ as to where the balance lies,
we consider that Morland J's decision was wrong. In addition to attaching more
significance than he did to the absence of an internal enquiry by the Chambers,
we do not regard that the threat to legal confidentiality by an individual
making use of a draft advice which had been discarded as significant as Morland
J considered it to be. He was clearly wrong in concluding, as he did, that
:
"the identification of the Third Defendant's source from whichs he obtained
the draft judgment is compellingly necessary in the interests of justice so as
to override the prime need to protect journalistic sources in the interest of
ensuring a free press in a democratic society."
29. The disclosure was not established to be necessary in the interests of
justice and, even if it had been, the judge should have exercised his
discretion to refuse disclosure. In our view it is important that when orders
are made requiring journalists to depart from their normal professional
standards, the merits of their doing so in the public interest are clearly
demonstrated. If the judge's order were to be allowed to stand, there would be
a real danger that this would not be the position here. The decision would be
wrongly interpreted as an example of lawyers attaching a disproportionate
significance to the danger to their professional privilege while undervaluing
the interests of journalists and thus the public.
30. Although there has now been a publication on the internet of the contents
of the advice, which suggests that there is an individual at some stage of the
chain who is motivated to cause mischief to the claimants, this is still a
one-off infringement of professional legal confidentiality which does not
justify making an inroad on the other privilege, the privilege of the
journalist. The judge thought that there could be within the Chambers a sense
of mistrust if the perpetrator was not detected. This is unlikely. It may be
regrettable that this should be necessary, but the fact is that if the Chambers
had taken the precautionary measures which they now have taken, the leak would
probably have been avoided. Now that the danger has been brought home and the
necessary steps have been taken, there is no reason to think that "clients will
lose faith in their lawyers" because of this single incident in the
Chambers.
31. The appeal should be allowed and the order made by the judge set aside.
Order: Appeal Allowed with costs. Leave to appeal to the House of
lords refused.
(Order does not form part of the approved judgemnt)
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