Mersey Care NHS Trust v Ackroyd (No.2)
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 21 February 2007 |
| Neutral Citation | [2007] EWCA Civ 101 |
| Docket Number | Case No: A2/2006/0460 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2007 |
[2007] EWCA Civ 101
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Tugendhat
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Neuberger of Abbotsbury and
Lord Justice Leveson
Case No: A2/2006/0460
Mr Vincent Nelson QC and Mr Jonathan Bellamy (instructed by Capsticks) for the Claimant
Mr Gavin Millar QC and Mr Anthony Hudson (instructed by Thompsons) for the Defendant
Hearing dates: 23, 24 and 26 October 2006
This is the judgment of the court to which each member has contributed.
Introduction
This is a most unusual case. Since 1 January 2002 the claimant has been the successor to the Ashworth Hospital Authority. In 1999 Ashworth Hospital was, as it is now, a special hospital provided by the Secretary of State for Health under the National Health Services Act 1977 for persons subject to detention under the Mental Health Act 1983 who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. Like the judge, we will refer to it as the hospital. Ian Brady, who is notorious as one of the 'Moors Murderers', was in 1999 and has since been detained at the hospital.
The defendant, whom we will call Mr Ackroyd, is a freelance investigative journalist. In November 1999 a source or sources at the hospital passed to Mr Ackroyd certain medical records pertaining to Mr Brady which were kept by the hospital. On 2 December 1999 some information from these records, including verbatim extracts, was published in the Mirror in an article attributed to Gary Jones. The hospital asked Mirror Group Newspapers Limited (“MGN”) to disclose the name of the person or persons who had provided it with the records. It declined to do so. The hospital therefore sought an order for disclosure of the source from MGN.
The hospital obtained an order for disclosure after a trial before Rougier J in April 2000. MGN appealed to this court but its appeal failed. The judgment of the court was given on 17 December 2000 and is reported at [2002] 1 WLR 515. The principal judgment was given by Lord Phillips MR. Both May and Laws LJJ agreed with Lord Phillips, although Laws LJ added a short judgment of his own (see below). MGN appealed to the House of Lords but its appeal again failed. Judgment was given on 27 June 2002: see [2002] UKHL 29 and [2002] 1 WLR 2033. It appears that both the hospital and the courts were proceeding on the basis that compliance by MGN with the order would reveal the name of the source. However it did not. Compliance with the order revealed only the name of Mr Ackroyd.
The hospital then invited Mr Ackroyd to identify his source or sources. He declined. So the hospital issued these proceedings against him. The hospital sought and obtained summary judgment from Gray J on 18 October 2002. The hospital's case at that time was that the application was resolved in its favour by the decision in the MGN case. Mr Ackroyd appealed to this court. His appeal was allowed on 16 May 2003: see [2003] EWCA Civ 663. The leading judgment was given by May LJ. Carnwath and Ward LJJ gave concurring judgments, although Carnwath LJ did so on a somewhat narrower basis. The court identified potentially important differences between the issues in this action and those in the MGN case. The judgments ran to 88 paragraphs. The court held that the issues between the parties merited a trial. Mr Ackroyd's evidence is that he was provided with information by more than one source but it is convenient generally to refer to his source or sources as his source in the singular. It is also convenient to refer to the source in the masculine gender.
The trial came before Tugendhat J (“the judge”). It lasted six days between 17 and 25 January 2006 and the judge gave judgment for Mr Ackroyd on 17 February 2006. He gave the hospital permission to appeal. This is that appeal. It is an appeal from a judgment which runs to 197 paragraphs. We will divide this judgment into a number of sections as follows: the principles of law, the correct approach to this appeal, the significance of the MGN case, the facts, conclusions and postscript.
Principles of law
The relevant principles are not in dispute. The jurisdiction of the court to order the disclosure of Mr Ackroyd's source is that stated in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. The judge quoted this statement from [26] of the speech of Lord Woolf, who gave the leading speech in the MGN case:
“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.”
The judge considered whether there was any relevant wrongdoing on the part of the source in some detail. He held that there was. He held at [138] that it was probable that the source was someone who was working at the hospital in the course of his or her employment, although he said that he could not decide on the evidence available to him whether he or she was employed by the hospital. He therefore said that he did not find that the source was an employee of the hospital. However, he concluded at [139] that for the purposes of deciding whether there was any wrongdoing it did not matter whether the source was employed by the hospital or not. He held that whoever the source was, if he was a person who had access to the records at Ashworth when permitted to be in the hospital for whatever reason, it is plain that he would have obtained the information subject to obligations owed by him, both to Ian Brady and to the hospital, not to use or disclose the information without authorisation or otherwise than for any purposes for which he was permitted to have access to it. The judge accordingly held at [140] that the source owed such a duty both to Ian Brady and to the hospital.
At [74] the judge noted Lord Woolf's conclusion at [36] that the need for involvement by the third party in the source's wrongdoing was a threshold requirement. In the MGN case the third party was MGN, whereas in this action it was Mr Ackroyd. When the MGN case was before Rougier J in April 2000, the question whether MGN should be ordered to disclose its source was governed by section 10 of the Contempt of Court Act 1981 (“the 1981 Act”), which reads as follows:
“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”.
By the time the MGN case reached the Court of Appeal in October 2000, the Human Rights Act 1998 (“the HRA”) had come into force. An order that a journalist disclose a source affects the Convention right of freedom of expression. Accordingly, in the MGN case, as the judge put it at [75], the Court of Appeal and the House of Lords (Lord Phillips at [69–73] and Lord Woolf at [38]) re-affirmed previous English decisions referring to, and themselves had regard to, decisions of the European Court of Human Rights. The English cases had already established that section 10 of the 1981 Act and article 10 of the Convention have a common purpose in seeking to enhance the freedom of the press by protecting journalistic sources. The judge noted that in the MGN case the courts cited sections 2 and 3 of the HRA.
The judge also observed that Mr Millar relied upon section 12 of the HRA, which provides so far as relevant:
“12(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
….
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –
(a) the extent to which –
(i) the material has, or is about to become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this...
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