HOUSE OF LORDS
Lord Slynn of Hadley Lord Browne-Wilkinson Lord Woolf Lord Nolan Lord Hobhouse of Wood-borough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
ASHWORTH SECURITY HOSPITAL
(RESPONDENTS)
v
MGN LIMITED
(APPELLANTS)
ON 27 JUNE 2002
[2002] UKHL 29
LORD SLYNN OF HADLEY
My Lords,
1. My Lords, I fully agree with my noble and learned friend Lord Woolf that this appeal should be dismissed for the reasons he gives. His analysis of the case law and the principles involved to my mind makes two things in particular abundantly clear. The first is that the jurisdiction recognised in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 to order disclosure of, inter alia, the identity of a source of information or documents does not depend on whether the person against whom the order is sought has committed a tort, a breach of contract or other civil or criminal wrong. It is sufficient but, it is important to stress, also necessary that that person should be shown to have "participated" or been "involved" in the wrongdoing which is at the basis of the application for discovery.
2. This latter requirement together with the residual discretion of the court as to whether it is right that an order should be made in all the circumstances provide a safeguard against an unjustified order for discovery. No one can or should forget the importance of the freedom of the press but it is plain as article 10 of the European Convention for the protection of Human Rights and Fundamental Freedoms (1953) and section 10 of the Contempt of Court Act 1981 require, that there are restrictions which are to be accepted as necessary in a democratic society.
3. The second point is that it is not a necessary precondition of the exercise of the jurisdiction that the applicant should have begun, or had an intention to begin, legal proceedings in respect of the allegedly wrongful act—in cases like these against the source. My noble and learned friend's reference to the speeches in British Steel Corp v Granada Television Ltd [1981] AC 1096 and in particular to the judgments of Lord Denning MR, at p 1127, and of Templeman LJ, at p 1132, in the Court of Appeal seems to me to establish this point conclusively despite the very well argued submissions of Mr Browne QC to the contrary.
4. As to whether in this case the order was justified, I have no doubt that there was a sufficient and proportionate justification. The fact that Mr Brady may have initiated or consented to some publication of his medical records cannot possibly deprive the hospital of the protection which they patently need.
LORD BROWNE-WILKINSON
My Lords,
5. I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Woolf and Lord Hobhouse of Woodborough. For the reasons that they give, I, too, would dismiss this appeal.
LORD WOOLF
My Lords,
6. This appeal is concerned with the right of a newspaper to refuse to reveal its sources. It arises out of the publication on 2 December 1999 of an article in the "Daily Mirror" which was written by their investigations editor, Mr Gary Jones. The article included verbatim extracts of the medical records of Ian Brady (one of the Moors murderers), a patient at Ashworth Security Hospital ("Ashworth"). He was, at the time of the publication, engaged on a well publicised hunger strike.
7. Ashworth Hospital Authority is responsible for the management of Ashworth. The authority is the claimant in the proceedings and respondent before your Lordships. The authority is one of the three special health authorities established by the Secretary of State for Health pursuant to sections 1 and 4 of the National Health Services Act 1977, as amended, for persons subject to detention under the Mental Health Act 1983 as requiring treatment under conditions of special security on account of their dangerous, violent or criminal propensities.
8. On 19 April 2000, Rougier J ordered the defendant, MGN Ltd, the publisher of the "Daily Mirror", by its proper officer within two working days to make and serve upon the authority a witness statement:
(i) explaining how it came to be in the possession or control of any medical records kept by the claimant in respect of Ian Brady whether that possession or control be of originals, copies or extracts;
(ii) identifying any employee of the claimant and the name of the person or persons (and any address, telephone and fax numbers known for such a person or persons) who were involved in the defendant acquiring possession or control of the said records.
9. MGN appealed against that order and on 18 December 2000 the Court of Appeal dismissed that appeal. In the course of the further appeal to their Lordships, MGN contend that Rougier J had no jurisdiction to grant the order, but that if he did have jurisdiction to grant the order, he was not entitled to do so in the circumstances of this case.
Background facts
10. On 30 September 1999, Ian Brady was transferred to another ward. He took objection both to the transfer and to the manner in which it was effected. In addition to making complaints to the police and through the National Health Service complaints procedure he went on hunger strike. At the same time he began a media campaign, writing repeatedly to the BBC and others and issuing information through his solicitor complaining about the way that he had been treated, giving details of his hunger strike and the manner in which he was affected.
11. Because of the substantial media interest which Ian Brady generated, the director of communications of Ashworth found it necessary to make 12 press releases between 30 September 1999 and 11 January 2000 answering inquiries for information. The release of the 2 October 1999 began by stating: "Ian Brady, a patient at Ashworth Hospital, has exercised his right to refuse permission for the hospital to disclose any clinical details about him". On 29 October, it was announced that he had refused food for a total of 30 days and that a program of "refeeding" had been introduced, which involved force feeding by means of a nasogastric tube.
12. On 2 February 2000, Ian Brady obtained permission to apply for judicial review, in order to challenge the continuing decision to force feed him. The hearing was held in private but, due to the public interest in the case, Maurice Kay J delivered his judgment in open court: see R (Brady) v Ashworth Hospital Authority [2000] Lloyd's Med R 355; (2001) 58 BMLR 173. Maurice Kay J ruled that force feeding was lawful since it was reasonably administered as part of the medical treatment given for the mental disorder from which Ian Brady was suffering. By virtue of section 63 of the 1983 Act consent was not needed for such treatment. The judgment set out in detail particulars of Ian Brady's clinical history which related to his decision.
The source of the information sent to the Daily Mirror
13. It was Mr Jones's evidence that he did not know the identity of the initial source of the information, but that he assumed it to be an employee of Ashworth. However, he accepted that he did know the identity of the intermediary who supplied the material to him. It is also accepted that knowledge of the intermediary would in all probability lead to the identity of the original source. Mr Jones had previously dealt with the intermediary on the understanding that he would be paid for stories supplied. On this occasion he paid £1,500.
14. It was found by the Court of Appeal and was not disputed on this appeal that it was the overwhelming likelihood that the source provided the intermediary with a print out from Ashworth's computer database which is used to record data about patients ("PACIS"). This meant the source was probably an employee of the authority.
15. Rougier J found that the extracts of the information published in the article were no more than a watered down version of material which Ian Brady had placed already in the public domain in furtherance of his campaign.
The importance of confidentiality in relation to patients medical records
16. The importance of confidentiality of medical records is emphasised when a new member of staff is engaged at Ashworth. The contract of employment contains a clause:
"Disclosure of information. You must not whilst you are employed or after your employment ends disclose to any unauthorised person information concerning the authority's business or the patients in its care nor must you make any copy, abstract, summary or précis of the whole or part of a document relating to the authority."
17. It is part of the agreed facts that leaks to the press have a detrimental effect on security; treatment of patients and staff morale, because they may inhibit proper recording of information about patients; may deter patients from providing information about themselves; may damage the patient-doctor relationship, which rests on trust; may lead to assaults by patients on a patient about whom information is disclosed; may create an atmosphere of distrust amongst staff, which is detrimental to efficient and co-operative work; and give rise to fear of future (and potentially more damaging) leaks.
18. In the case of patients at Ashworth, it is particularly important that accurate records are kept because otherwise warning signs indicating that a patient is in a condition in which he could be a danger to himself, his fellow patients or the staff could be overlooked so inhibiting preventative action being taken.
19. It is not in dispute that Ashworth has itself carried out an appropriate investigation in an attempt to discover the source of the leak without success, and that the only way in which the source is likely to be discovered is as a result of an order such as that made by Rougier J. It is also not in dispute that the reason for seeking an order for disclosure is to discipline the person responsible for the leak which in practice would mean that that person would be dismissed.
20. After the publication in the "Daily Mirror", Ashworth tightened security and since then there has been no further breach of security. This increased security has involved reducing access to PACIS which has a detrimental effect on the running of Ashworth. Furthermore, the judge concluded that if confidence in the security of a database is undermined, the use of the database for recording sensitive information would be inhibited and this would have the effect of dissuading patients from providing information about themselves. As the judge stated:
"Once it were known among patients that their records might well be leaked there would, in all probability, be a sharp downturn in the essential therapeutic patient-doctor relationship where trust is of fundamental importance."
21. The judge also concluded that "it is not so much the nature of this leak, but the fact that it happened at all, which is all-important, for, unless stopped, that which has occurred once may well occur again".
The issues which MGN Limited raises on this appeal
22. By a letter of 11 March 2002, Kerman and Co., the solicitors to MGN, wrote to the Judicial Office of the House "to make it absolutely clear what issues are and are not in dispute on this appeal". The letter initially identified the points which MGN are not taking as follows:
(i) They do not dispute that the authority has an independent right in the confidentiality of the records, assuming that the contents of the records were truly confidential.
(ii) Nor do they contend that the jurisdiction, which they describe as the Norwich Pharmacal jurisdiction, should be confined to cases of tort.
(iii) On the assumption that the sending by the intermediary of Ian Brady's running records to Mr Jones was a tortious act, MGN no longer contend that MGN was not innocently mixed up in that act "so as to trigger the operation of the Norwich Pharmacal jurisdiction against them".
23. The letter then goes on to identify the contentions which MGN were advancing. These are:
(iv) The authority had failed to establish that the unpublished material in Ian Brady's running records was truly confidential in the sense that it was secret or not in the public domain (the confidentiality issue).
(v) As all the published information had been placed in the public domain by Ian Brady himself, MGN was not a tortfeasor in publishing the extracts from the running records (the tortfeasor issue).
(vi) The "interests of justice" exception to section 10 of the Contempt of Court Act 1981 is limited to cases where disclosure is required for existing or intended proceedings (the section 10 issue).
(vii) Whether, applying the article 10 jurisprudence to the proper construction of section 10 and to the facts of this case, the authority have established convincingly that an order for discovery was proportionate to a legitimate aim within article 10(2) and strictly necessary in a democratic society (the article 10 issue).
(viii) The Norwich Pharmacal jurisdiction to order discovery is an aid to litigation and does not extend to cases where a claimant has neither brought nor intends to bring proceedings (the Norwich Pharmacal jurisdiction issue).
24. The letter reflects conveniently the shape of the principle arguments advanced by Mr Desmond Browne QC on behalf of MGN on this appeal and I therefore propose to deal with the issues which the letter identifies as well as the issue as to the manner in which Norwich Pharmacal jurisdiction was exercised in this case. Issues numbered one and two can be taken together and I turn to them now.
The confidentiality and tortfeasor issues
25. If this was not already clear from the letter of 11 March 2002, MGN made it clear both in their written and oral arguments in support of the appeal that it is a part of MGN case that if the information relating to Ian Brady which they published was not confidential, in the sense that it was neither secret nor in the public domain, and this meant that MGN was not a tortfeasor, then disclosure could not be ordered.
26. This approach on the part of MGN Limited reveals a fundamental misconception as to the basis for ordering disclosure under the now well established Norwich Pharmacal jurisdiction. Under this jurisdiction, there is no requirement that the person against whom the proceedings have been brought should be an actual wrongdoer who has committed a tort or breached a contract or committed some other civil or criminal wrongful act. In Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133 itself, the Customs and Excise Commissioners were an entirely innocent party. The commissioners had, however, because of their statutory responsibilities become involved or mixed up in the illicit importation of the chemicals manufactured abroad which Norwich Pharmacal alleged infringed their patent. The Norwich Pharmacal case clearly establishes that where a person, albeit innocently, and without incurring any personal liability, becomes involved in a wrongful act of another, that person thereby comes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer. While therefore the exercise of the jurisdiction does require that there should be wrongdoing, the wrongdoing which is required is the wrongdoing of the person whose identity the claimant is seeking to establish and not that of the person against whom the proceedings are brought.
27. The correct position is made clear from the speech of Lord Reid in the Norwich Pharmacal case. The first passage of the speech of Lord Reid to which I would refer states, at p 174:
"So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the respondents are in an intermediate position. Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?"
28. Lord Reid answers this question in the affirmative without dealing in detail with the earlier authorities other than by making a general reference to the speeches of Lord Cross of Chelsea and Lord Kilbrandon which do so. However, Lord Reid goes on to state in further passages of his speech, at p 175, to which I will now refer that:
"They [the authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.
"I am the more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make full disclosure even though the person wronged has no intention of proceeding against him. It would I think be quite illogical to make his obligation to disclose the identity of the real offenders depend on whether or not he has himself incurred some minor liability. I would therefore hold that the respondents must disclose the information now sought unless there is some consideration of public policy which prevents that."
29. Lord Kilbrandon, having referred to the authorities and, like Lord Reid, been impressed by the views expressed by Lord Romiley MR in Upmann v Elkan (1871) LR 12 Eq 140; 7 Ch App 130, summarises the position by saying, at pp 205-206:
"There is no suggestion that in so doing he is pretending to exercise any right of relief against the discoverers.
"In my opinion, accordingly, the respondents, in consequence of the relationship in which they stand, arising out of their statutory functions, to the goods imported, can properly be ordered by the court to disclose to the appellants the names of persons whom the appellants bona fide believe to be infringing these rights, this being their only practicable source of information as to whom they should sue, subject to any special right of exception which the respondents may qualify in respect of their position as a department of state. It has to be conceded that there is no direct precedent for the granting of such an application in the precise circumstances of this case, but such an exercise of the power of the court seems to be well within broad principles authoritatively laid down. That exercise will always be subject to judicial discretion, and it may well be that the reason for the limitation in practice on what may be a wider power to order discovery, to any case in which the defendant has been 'mixed up with the transaction', to use Lord Romilly's words, or 'stands in some relation' to the goods, within the meaning of the decision in Post v Toledo, Cincinnati and St Louis Railroad Co (1887) 11 NERep 540, is that that is the way in which judicial discretion ought to be exercised."
30. Similar statements can be found in the Norwich Pharmacal case in the other speeches of their Lordships. They make it clear that what is required is involvement or participation in the wrongdoing and that if there is the necessary involvement, it does not matter that the person from whom discovery is sought was innocent and in ignorance of the wrongdoing by the person whose identity it is hoped to establish.
31. Although initially I detected in Mr Browne's argument a suggestion that because of the activities of Ian Brady in publicising his medical condition, there was no initial wrongdoing by the source who supplied the intermediary so that that intermediary could supply Mr Jones with the material for his article, this suggestion cannot be sustained. The probabilities are that the source was a member of staff who had access to Ian Brady's file within PACIS. (According to the agreed statement of facts and issues those who had access to the file "included the staff on his ward, his patient care team, site managers, medical care staff, health records staff, the pharmacy, all doctors in the directorate and their medical secretaries, all psychologists and social workers and security staff".) As was pointed out by Lord Browne-Wilkinson in the course of argument, any members of staff would have been acting in breach of their contracts of employment if they were responsible for transmitting the contents of a file to the intermediary. They would undoubtedly be wrongdoers.
32. I also accept the conclusion of Lord Phillips of Worth Matravers MR in the Court of Appeal [2001] 1 WLR 515, paras 50-54 that, while Ian Brady's conduct in putting similar information into the public domain could well mean that he would not be in a position to complain about the publication, this did not destroy the authority's independent interest in retaining the confidentiality of the medical records contained in Ashworth's files. So the source who abstracted the information from the database not only acted in breach of confidence; he or she also acted in breach of contract.
33. The Master of the Rolls went on to conclude, in paragraph 63:
"The intermediary, knowing that the information had been obtained in breach of confidence, passed it to MGN, through Mr Jones. MGN, knowing that the information had been transferred in breach of confidence, published extracts from it. In these circumstances, claims for breach of confidence lie against MGN, the intermediary and the source."
34. On the facts of the present case the Master of the Rolls is almost certainly correct in coming to this conclusion. However, for the purposes of the present appeal, as I have already explained, such a finding in favour of the authority is not necessary. It is sufficient that the source was a wrongdoer and MGN became involved in the wrongdoing which is incontestably the position. Whether the source's wrongdoing was tortious, or in breach of contract in my judgment matters not. If there was wrongdoing then there is no further requirement that Mr Jones' and MGN conduct should also be wrongful. It is sufficient if, in the words of Lord Dilhorne in the Norwich Pharmacal case, at p 188C, that there was "involvement or participation". As MGN published the information which was wrongfully obtained, the answer as to whether there was involvement or participation must be an emphatic yes.
35. Although this requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement, the reference to participation can be dispensed with because it adds nothing to the requirement of involvement, is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion.
36. It is not the only protection available to the third party. There is the more general protection which derives from the fact that this is a discretionary jurisdiction which enables the court to be astute to avoid a third party who has become involved innocently in wrongdoing by another from being subjected to a requirement to give disclosure unless this is established to be a necessary and proportionate response in all the circumstances: see John v Express Newspapers [2000] 1 WLR 1931. The need for involvement can therefore be described as a threshold requirement. The fact that there is involvement enables a court to consider whether it is appropriate to make the order which is sought. In exercising its discretion the court will take into account the fact that innocent third parties can be indemnified for their costs while at the same time recognising that this does not mean there is no inconvenience to third parties as a result of becoming embroiled in proceedings through no fault on their part.
Section 10 and Article 10 issues
37. The third and fourth issues can also be considered together. Section 10 of the 1981 Act 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."
Article 10 of the Convention provides:
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
"(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
38. Judicial opinion differs as to the extent that section 10 was passed in order that our domestic law might reflect article 10. That this is the case can be seen by comparing the views of Schiemann LJ in Camelot Group plc v Centaur Communications Limited [1999] QB 124, 128 with Sedley LJ's in Financial Times Ltd v Interbrew SA [2002] EWCA Civ 274 (paragraphs 9 and 10). However, whatever was the objective of those promoting section 10, there can be no doubt now that both section 10 and article 10 have a common purpose in seeking to enhance the freedom of the press by protecting journalistic sources. The approach of the European Court of Human Rights as to the role of article 10 in achieving this was clearly set out by the court in Goodwin v United Kingdom (1966) 22 EHRR 123 in these terms:
"39. The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.
Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with article 10 of the Convention unless it is justified by an overriding requirement in the public interest."
The same approach can be applied equally to section 10 now that article 10 is part of our domestic law.
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