Harrods Ltd v Times Newspapers Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,LORD JUSTICE MOORE-BICK,MR JUSTICE LAWRENCE COLLINS |
| Judgment Date | 22 February 2006 |
| Neutral Citation | [2006] EWCA Civ 294 |
| Docket Number | A3/2006/0168 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2006 |
[2006] EWCA Civ 294
Lord Justice Chadwick
Lord Justice Moore-Bick
Mr Justice Lawrence Collins
A3/2006/0168
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JUSTICE WARREN)
Royal Courts of Justice
Strand
London, WC2
MR J PRICE QC & MR D PRICE (instructed by Messrs David Price, LONDON EC4Y 1AA) appeared on behalf of the Appellant.
MR A WHITE QC & MS H ROGERS (instructed by Messrs Finers Stephen Innocent, LONDON W1W 5LS) appeared on behalf of the Respondent.
This is an appeal from an interlocutory order made on 23 January 2006 by Warren J on an application made in proceedings brought by Harrods Limited. The trial is fixed to commence on 6 March 2006, with a time estimate of five to seven days. It is of obvious importance for the parties – and to the orderly conduct of business within the Chancery Division of the High Court – that the trial date should not be lost. The appeal has been brought on in this court with expedition.
The claim in the proceedings is for damages for breach of confidence. The breach alleged is the publication of information relating to Harrods' employment practices in the context of critical articles which appeared in the Sunday Times on 13 and 20 January 2005. The defendants are Times Newspapers Limited, which is the publisher of the Sunday Times, the journalist who wrote the articles and the editor of the newspaper.
The thrust of the articles was that Harrods, under the control of its chairman, Mr Mohamed Al Fayed, had treated its senior executives in a manner which was unacceptable. The defendants assert (among other defences) that publication of the information (if confidential, which is denied) was in the public interest. In particular, it is said that publication was justified in the public interest in that the information (i) corrected a false public image which Harrods had sought to foster; (ii) corrected false denials made by Harrods as to the circumstances in which senior executives had left its employment; and (iii) disclosed unlawful treatment by Harrods of its employees and its failure to follow good employment practices.
The application for disclosure
By a notice issued on 15 September 2005 the defendants applied for further disclosure of documents falling within six main categories. In the present context it is necessary to refer only to two of those categories. Category 2 comprises "Documents relating to the termination and cessation of the employment of directors or senior executives of claimant since 1990". Particulars of the documents sought were given under 12 sub-categories. Category 3 is "Documents relating to Richard Simonin: claim against the Claimant and its Chairman".
The application came before Master Price on 25 November 2005. The claimant took the point (amongst other points) that a defence based on public interest justification must be based on material which had been in the public domain at the time of publication. As it was put in the skeleton argument prepared on behalf of the claimant for use at that hearing:
"It is not justifiable for person A to disclose confidential information regarding person B where information in the public domain does not of itself provide a public interest justification but person A nevertheless speculates that, if it was able to look through all person B's confidential information, the public interest justification might be found."
The Master took the view that that issue should be adjourned to a judge in the High Court.
The judge determined that issue against the claimant. It was on that basis that he ordered disclosure of documents set out in Schedule 1 to his order of 23 January 2006. Those are documents in ten of the twelve sub-categories under category 2, but restricted to documents relating to certain named individuals, the documents in category 3 and documents in one sub-category of category 6. There is no longer any dispute in relation to the category 6 documents.
The judge gave permission to appeal from his order; but limited that permission to an appeal on the single issue:
"whether a defendant in a breach of confidence action is entitled to rely in support of a public interest defence upon information which was not known to the defendant at the time of alleged breach of confidence."
The appellant's notice, filed on 30 January 2006, seeks to raise two further grounds, which are closely allied to that issue. The appeal has been listed with an application for permission to appeal on those further grounds. In the event it was convenient to hear full argument on all the grounds in the appellant's notice.
The judge's reasons
The judge directed himself at paragraph 11 of his judgment – correctly in my view – that he should approach the application for further disclosure on the basis that the underlying question was what evidence would be admissible at the trial. He pointed out that:
"… if evidence is admissible on the basis that you can rely only on matters that were known to you when you published material, there cannot be an obligation to make further disclosure. Conversely, if the evidence is admissible, a document which falls within the criteria for standard disclosure, or for specific disclosure if that is thought appropriate by the court, must be disclosed …"
After referring to passages in the speech of Bingham LJ in this Court in Attorney-General v Guardian Newspapers [1990] 1 AC 109, (the " Spycatcher" case) , at page 222, the judge expressed his conclusion at paragraph 15 of his judgment:
"As a matter of principle it seems to me that evidence, and therefore the obligation of disclosure, should not be limited as Mr Price suggests. The defence surely is a reflection of the policy that the public interest in knowing of iniquity or indulging in the same principle, as I have said, erecting a false public image, is capable of outweighing the private interest in confidence. It cannot affect that essentially objective balance whether the publicist actually knew all of the relevant facts to establish that balance – whether he knew it and revealed it all, whether he knew it and revealed some of it; or whether he did not know it all but discovered later. I can see no distinction between those three cases in terms of what it is in the public interest to know."
The judge went on to emphasise that the evidence (to be admissible) – and the disclosure sought – must be relevant to the defence that was advanced. So, for example, if the defence advanced was the public interest in correcting a particular image fostered by the claimant, the evidence (and the disclosure) must be relevant to that particular image. It would not be enough that it might, more generally, portray the claimant in a bad light.
With that approach in mind, the judge analysed the pleaded defence. He reached the conclusion (at paragraph 29 of his judgment) that the questions in issue in the action included (i) the circumstances surrounding the departure of the two senior executives named in the articles of 13 and 30 February 2005 – Mr Simonin and Mr Decouvelaere – (ii) whether the rate of departures amongst senior executives was exceptional, (iii) whether there was "a culture of fear" amongst senior executives at Harrods, and (iv) the circumstances surrounding the departure of other senior executives and senior employees named (by reference to a schedule) in paragraph 3 of the amended defence. The order for disclosure which he made on 23 January 2006 reflects that conclusion.
The issues defined by the pleadings
In my view the judge was plainly correct to approach the application for further disclosure on the basis that it was essential, first, to identify the factual issues that would arise for decision at the trial. Disclosure must be limited to documents relevant to those issues. And, in seeking to identify the factual issues which would arise for decision at the trial, the judge was plainly correct to analyse the pleadings. The purpose of the pleadings is to identify those factual issues which are in dispute and in relation to which evidence can properly be adduced. It is necessary, therefore, to have in mind the issues as they emerge from the pleadings and are relevant in the present context.
Paragraph 1 of the particulars of claim served and filed on 24 May 2005 contains allegations that the claimant, Harrods Limited, owns and operates the well known department store in Knightsbridge and that Mr Mohamed Al Fayed is the chairman of the claimant. That is not in issue. The defence, served on 18 April 2005, goes further. It is asserted that Mr Al Fayed is the beneficial owner and/or controller of the claimant company. The substance of that allegation was admitted in a schedule of admissions served on behalf of the claimant on 23 November 2005.
Paragraphs 1.5 and 1.6 of the defence are in these terms:
"1.5 Mohamed Al Fayed is a man who has courted media attention. He is a figure in the public eye. He has portrayed himself through innumerable statements and interviews made and given to the media by him and on his behalf as an honourable man wrongfully and unfairly shunned by the establishment. In seeking to foster this image he has held out his ownership of Harrods and in particular his benevolence towards, and general approach to, the many people he employs at Harrods as creditable aspects of his life.
1.6 Further, Mohamed Al Fayed has repeatedly asserted to and through the media that the employees of Harrods are privileged to work there and are well-treated by him and...
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