John and Others v Express Newspapers and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date19 April 2000
Judgment citation (vLex)[2000] EWCA Civ J0419-21
Date19 April 2000
Docket NumberCase No: QBENI 2000/0219/A2

[2000] EWCA Civ J0419-21

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

BEFORE:

master Of The Rolls

Lord Justice Pill and

Lord Justice May

Case No: QBENI 2000/0219/A2

Sir Elton Hercules John & Ors
Claimants/Respondents
and
Express Newspapers & Ors
Defendants/appellants

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)

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...

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