The Commissioner of Police of the Metropolis and Another v Times Newspapers Ltd and Another
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 24 October 2011 |
| Neutral Citation | [2011] EWHC 2705 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X00308 |
| Date | 24 October 2011 |
[2011] EWHC 2705 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11X00308
William McCormick QC and Iain Daniels (instructed by Edward Solomons, Director of Legal Services MPS) for the First Claimant and Soca Legal Department for the Second Claimant
Gavin Millar QC and Anthony Hudson (instructed by Simons Muirhead & Burton) for the Defendants
Hearing dates: 18,19,20 and 22nd July 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Second Defendant ("Mr Gillard") is an experienced investigative journalist who has written extensively on matters relating to the police and crime. The First Defendant ("TNL") is the publisher of The Sunday Times. Mr Gillard received copies of leaked documents originating from the files of the two Claimant law enforcement agencies ("the Claimants"). The date,. source and circumstances of the leak have not been disclosed to the court, and have not been discovered by the Claimants.
On 23 May 2010 Mr Gillard wrote, and TNL published, an article ("the Article") headed "Underworld kings cash in on taxpayer land fund". The Article referred to Mr David Hunt as a man "whose criminal network is allegedly so vast that Scotland Yard regards him as "too big' to take on". The words in quotation are quoted from the leaked documents, and Mr Gillard accepts that he had the leaked documents in mind when he wrote the Article. The Article is to a substantial extent plainly based on the leaked documents. Mr Hunt has sued TNL for libel in separate proceedings ("the Libel Action").
Mr Hunt is not a party to this action brought by the Claimants, and has not been able to make any representations to the court. It is essential that any reader of this judgment should understand that nothing in this judgment is intended to, or should be read as, containing any finding adverse to Mr Hunt. Mr Hunt has the same right to his reputation and to the presumption of innocence that everyone enjoys. The fact that the Claimants believe that he is the head of renowned organised crime group ("OCG") does not mean that he is guilty. It is all too well known that there have been miscarriages of justice in the past where innocent people have been convicted of crimes of which the police, journalists and others believed them to be guilty.
There is an open judgment and a closed judgment in this case. In this open judgment I repeat matters which were published in the Article. But there must be a restriction on reporting of the contents of the closed judgment in order to protect the confidentiality of the information referred to in the closed judgment. It is for that reason that the hearing before me was in private except when the parties were making submissions of law.
THE PROCEDURAL HISTORY
The Claimants commenced this action by a claim form issued on 28 January 2011. In it the Claimants alleged against TNL and Mr Gillard breach of confidence, conversion, and breach of the Data Protection Act 1998. They applied for injunctions, delivery up of the leaked documents and other relief, including an order that the Defendants disclose the sources of the leak. On 27 January 2011 I had granted an interim injunction. This is the trial of the breach of confidence claims by the Claimants. The only relief now applied for is for injunctions to restrain breaches of confidence and delivery up of those documents which the court holds that TNL are not entitled to use. Mr Gillard has not disclosed his sources, and the other claims for relief have not been pursued.
The delay between the publication of the Article in May 2010 and the commencement of these proceedings in January 2011 is to be seen against the following background.
On 25 June 2010 Mr Hunt issued two claims for libel. The first claim is against TNL, ("the Libel Action"). The second claim is against Evening Standard Ltd ("ES"), which had published an article containing similar allegations ("the ES Action"). On 30 September 2010 TNL served a Defence in the Libel Action. This included defences of Justification (or Truth) and Reynolds public interest privilege. On 15 October ES served its Defence. ES pleaded Justification, and that Mr Hunt has a general bad reputation for being the head of an OCG.
On 29 November 2010 TNL issued an application against the First Claimant ("MPS") for third party disclosure in the Libel Action. No order has been made on that application.
On 2 December 2010 I heard an application by Mr Hunt to strike out TNL's defence in the Libel Action. In the course of that hearing, Mr Millar indicated that TNL wished to reconsider the form of its Defence, and on that basis I struck out most of that part of its Defence and gave permission to apply to amend.
On 4 January 2011 counsel for TNL prepared a draft Amended Defence in the Libel Action. It made reference to the leaked information. TNL communicated it to the Claimants before serving it on Mr Hunt. It was following this that the Claimants applied for the injunction and commenced these proceedings, as stated above. Thus the injunction was granted on 27 January 2011, and the Claim Form and Particulars of Claim issued on 28 January 2011.
On 25 February 2011 TNL applied for a stay of the libel action, either generally, or pending the conclusion of the present proceedings. On 22 March 2011 and 18 April 2011 I heard and refused an application by the Defendants to vary the interim injunction ( [2011] EWHC 776 (QB)). On 15 and 21 June 2011 I heard and (as to some parts) refused applications in this action, including an application by the Defendants for disclosure ( [2011] EWHC 1566 (QB)). Meanwhile, no further steps have been taken in the two libel actions.
OUTLINE OF THE CLAIMS AND THE DEFENCE
It is convenient to start with a brief outline of the claims and the defences, and return to the law further on in this judgment.
The dispute between the parties now relates to 10 documents. In the Claim Form the injunction sought was to restrain the Defendants "from using the confidential materials (save by order of the court)". At the close of the trial the form of injunction sought was set out in a draft order, with claims that documents be delivered up, redacted and deleted in ways that correspond to the form of the injunction. The form of the injunction was to restrain the Defendants: "(1) making any use of document 4 or 6 or the information therein; (2) making any use of document 5 or 7 or the information therein, save [in the form of a plain paper transcript]; (3) making any use of the highlighted information within documents 1, 2, 8, 9 or 10; (4) making any use of document 3 or the information therein."
In the Defence the Defendants admitted coming into possession of the five documents which they had by then disclosed to the Claimants in redacted form, and they admitted that Mr Gillard knew or had reason to believe that the documents were confidential. They denied that any breach of confidence or other unlawful act had been committed by either of them. They contended that the information was properly and lawfully received, either in the course of legitimate newsgathering activities or investigative journalism on matters of public interest, or for the purposes of defending the Libel Action. They stated that their intention was to use the documents in defending the Libel Action "to the extent permitted by the court to do so".
The Claimants are public authorities. Claims for breach of confidence by public authorities are different from claims by individuals. The difference was explained by Lord Goff in A-G v Guardian (No 2) [1990] 1 AC 109, 283C-D, 258H: "although in the case of private citizens there is a public interest that confidential information should as such be protected, in the case of Government secrets the mere fact of confidentiality does not alone support such a conclusion, because in a free society there is a continuing public interest that the workings of government should be open to scrutiny and criticism. From this it follows that, in such cases, there must be demonstrated some other public interest which requires that publication should be restrained".
Since the passing of the Human Rights Act 1998, there is a further explanation for the difference: individuals have Convention rights, but public authorities do not.
Accordingly, in their Particulars of Claim the Claimants identify the basis of their claims as their obligations pursuant to HRA s.6(1) to act only in ways compatible with the rights and' freedoms' set out in Sch 1 to that Act. These obligations include a responsibility to protect the rights of individuals. Rights relevant to this case are the right to respect for individuals' private and family life (Art 8) (which includes the duty to safeguard their personal data, in accordance with the Data Protection Act 1998). Art 8 (Right to respect for private and family life) provides:
"1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and...
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