R v Howell (Errol) (pet dis)

CourtHouse of Lords
JudgeLord Diplock, Lord Simon of Glaisdale, Lord Keith of Kinkel, Lord Scarman, Lord Roskill
Judgment Date11 Feb 1982
JurisdictionEngland & Wales

[1982] UKHL J0211-1

House of Lords

Lord Diplock

Lord Simon of Glaisdale

Lord Keith of Kinkel

Lord Scarman

Lord Roskill

Harman
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Lord Diplock

My Lords,

1

In a case which has attracted a good deal of publicity it may assist in clearing up misconceptions if I start by saying what the case is not about. It is not about freedom of speech, freedom of the press, openness of justice or documents coming into "the public domain"; nor, with all respect to those of your Lordships who think the contrary, does it in my opinion call for consideration of any of those human rights and fundamental freedoms which in the European Convention on Human Rights are contained in separate articles each starting with a statement in absolute terms but followed immediately by very broadly stated exceptions.

2

What this case is about is an aspect of the law of discovery of documents in civil actions in the High Court. The practice of compelling litigating parties in the course of preparing for the trial of a civil action to produce to one another, for inspection and copying, all documents in their possession or control which contain information that may, either directly or indirectly, enable that other party either to advance his own cause or to damage the case of his adversary or which may fairly lead to a chain of inquiry which may have either of these two consequences, is peculiar to countries whose systems of legal procedure are inherited from the English courts of common law and from the court of Chancery (in which discovery originated). Nothing resembling this forms any part of the legal procedure in civil actions followed in countries of the Civil Law, from which are drawn the majority of States that are parties to the European Convention on Human Rights. The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.

3

The case, in my view, turns on its own particular facts, which are very special. Miss Harman, the appellant in this appeal, was at the relevant time acting as solicitor for a plaintiff, Williams, in an action he had brought against the Home Office for declaratory relief and damages arising out of what he alleged to be his unlawful confinement in a "control unit" in Hull prison while undergoing a sentence of 14 years imprisonment for armed robbery. While so acting as solicitor to Williams under the legal aid scheme for which she was remunerated from public funds Miss Harman was also in the employment of the National Council for Civil Liberties (N.C.C.L.) as a legal officer. In the course of the interlocutory proceedings in Williams v. Home Office application was made by Miss Harman on behalf of Williams for discovery of documents by the Home Office. Some 2,800 documents were disclosed of which 800 were made up by Miss Harman into two bundles. Nine copies of these bundles were prepared for the judge, counsel and solicitors for use by them (subject to any objection to admissibility) at the trial. They included six documents containing minutes of high level policy meetings and memoranda for which the Home Office had unsuccessfully claimed public interest immunity in an application heard by McNeill J. in January 1980: Williams v. Home Office [1981] 1 All E.R. 1151.

4

In the course of the proceedings for discovery and before the claim for public interest immunity of the six documents was heard, the Treasury Solicitor acting for the Home Office in the action drew Miss Harman's attention to the possible conflict of interest that might arise out of the duality of her functions as solicitor to Williams in the action and as legal officer of the N.C.C.L. A letter of 17th October, 1979, included the following paragraph:—

"My client does, however, require that inspection of the disclosed documents and dissemination of their contents should be limited to the legal officers of N.C.C.L. and their assistants at any time concerned with the conduct of this action, except insofar as wider inspection or dissemination is strictly necessary for the conduct of the action. In other words my client would not wish the documents to be used for the general purposes of the N.C.C.L. outside your function as solicitor for the plaintiff."

5

To this Miss Harman replied:—

"As far as 'the general purposes of N.C.C.L.' is concerned you may rest assured that, as a solicitor, I am well aware of the rule that requires that documents obtained on discovery should not be used for any other purpose except for the case in hand."

6

The action came on for trial before Tudor Evans J. The hearing, which ended on 25th March 1980, took twenty-two days of which your Lordships have been informed, the first five were taken up by the opening speech of counsel for Williams (who is not one of the counsel appearing for Miss Harman in the instant appeal). In the course of this speech either (as has been assumed for the purpose of the argument in this appeal) he read aloud in full all eight hundred pages of the documents that Miss Harman had prepared or, at very least, he read out aloud what Miss Harman in her affidavit described as "all material parts" of them. After the hearing ended Tudor Evans J. reserved judgment which he did not deliver until 8th May 1980. In the meantime, Miss Harman in her capacity as solicitor for Williams in the action, but in no other capacity, retained possession of her copy of the two bundles.

7

My Lords, it is evident that, so far as the proper conduct of the litigation between Williams and the Home Office is concerned, success for Miss Harman's client could not be in any way promoted by her giving further publication to the documents in the bundles, whether to a member of the press or anyone else, during the period between the close of the hearing and the delivery of his reserved judgment by the judge. Indeed no attempt has been made on her behalf to suggest that there was. She was entitled to retain those documents until after judgment had been delivered, for use in considering the advisability of appealing and for use in the appeal itself if brought—as in fact it has been. But it never has been contended that what she did with the documents in showing them to a journalist between 28 March and 8 April 1980 was done on the instructions of Williams or to promote a successful outcome of his litigation against the Home Office, although it was only on his behalf as his solicitor in that litigation that she had them in her possession at all.

8

In the judgment of the Master of the Rolls in the instant case there is set out the account given by Miss Harman in her own affidavit of what she did. She allowed a journalist, Mr. David Leigh, whom she knew and whose declared purpose was to write a feature article for The Guardian newspaper on the subject of the "control unit" at Hull prison, to attend her office and in her presence to inspect all the documents in the two bundles and to make notes about them and extracts from them. These included the six documents for which the Home Office had unsuccessfully claimed public interest immunity from discovery. But Tudor Evans J. after hearing argument had ultimately ruled that although they satisfied the wider criterion of relevance for the purposes of discovery, they were nevertheless inadmissible in evidence at the trial, Mr. Leigh's feature article, based upon material which he had been enabled by Miss Harman to extract from the bundles of documents, appeared in The Guardian for 8 April 1980 under the heading "Papers released through a court case—brought by a civil rights group in which judgment is awaited— have raised questions about the running of the Home Office after its blunder in setting up in secrecy control units for inmates: David Leigh reports".

9

The contempt of court of which Miss Harman has been found guilty by Park J. and on appeal by a unanimous Court of Appeal (Lord Denning M.R., Templeman and Dunn L.JJ.), was in allowing Mr. Leigh access to the bundles of documents belonging to and disclosed by the Home Office (that were in her possession solely in her capacity as solicitor to Williams in his civil action against it) not for any purpose connected with the conduct of that action, but for some collateral or ulterior purpose of her own or of the civil rights group referred to in Mr. Leigh's article as having brought the action, viz., the N.C.C.L. of which she was also legal officer.

10

I take the expression "collateral or ulterior purpose" from the judgment of Jenkins J. in Alterskye v. Scott [1948] 1 All E.R. 469. I do not use it in a pejorative sense, but merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, she was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people's documents. So the questions of law in this appeal are: whether it is the duty of the solicitor of one party to civil litigation, who in the course of discovery in that litigation has obtained possession of copies of documents belonging to the other party to the litigation, to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose of his own not reasonably necessary for the proper conduct of the action on his client's behalf; and if so, whether a breach of that duty constitutes a contempt of court?

11

That such initially is the duty of the solicitor to a party to civil litigation and has been ever since the unification of the courts of common law and chancery in 1875, is not, as I...

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