John & Ors v Express Newspapers & Ors [2000] EWCA Civ 135 (19 April 2000)

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19 April 2000

B e f o r e :
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
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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)

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As Approved by the Court
Crown Copyright ©

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)