Various Claimants v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 04 June 2020 |
| Neutral Citation | [2020] EWHC 1435 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2000-000004 |
| Date | 04 June 2020 |
[2020] EWHC 1435 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Mr Justice Mann
Case No: HC-2000-000004
David Sherborne, Sara Mansoori and Julian Santos (instructed by Hamlins LLP) for the Claimants
Clare Montgomery QC, Anthony Hudson QC and Ben Silverstone (instructed by Clifford Chance LLP) for the Defendant
Hearing dates: 20 th, 21 st and 22 nd May 2020
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.
Disclosure of documents relating to “Nigel”
JUDGMENT ON THE “NIGEL” CONFIDENTIAL SOURCE
Introduction
This is technically an application for inspection of disclosed documents, but the real issue in the application is whether a given individual, to whom the inspection relates, is correctly treated as a confidential source of the defendant and whether the documents should nonetheless be made available for inspection. The situation is a slightly unusual one because in this instance the identity of the individual is known. What the defendant seeks to protect is not his identity, but the fact that he was the source of various tips and/or newspaper stories. His first name is Nigel. I can safely call him that throughout this judgment, though as will appear on reflection I question whether his continued anonymity can be justified.
The background to the disclosure and what has been disclosed
In their pursuit of generic evidence, and in particular (for these purposes) in relation to the claim against the Sun where they are faced with a non-admission which requires the claimants to prove their case (without denying it), the claimants have identified Nigel as an apparent contributor of stories. His name was at one point redacted from email traffic with Mr John Sturgis, an associate news editor at the Sun. The emails (from June 2008) claim payment for various tips or stories. He also claimed for “kill fees”, ie a payment for a tip or story that the Sun did not use in exchange for not taking the story to a competitor newspaper. Originally his surname was redacted as a confidential source, but the claimants were able to identify him and it is now accepted that they have correctly identified Mr Sturgis's correspondent. It appears he was a journalist on another newspaper who was moonlighting by supplying tips to the news desk at the Sun.
The claimants have also identified him as a user of Mr Steve Whittamore, a private investigator whose activities were the subject of an investigation and report by the Information Commissioner. Those activities included unlawful information gathering. A study of Mr Whittamore's notebooks apparently reveals that Nigel was a significant user of Mr Whittamore's services. I was shown a number of entries which showed Nigel commissioning a vehicle check (finding out the owner of a vehicle from its registration number, which cannot be done lawfully), an alleged hospital “blag” (“Royal Free Hosp blag”, presumably trying to get medical information by pretence); a phone number “conversion” (trying to find out the owner of a telephone number); and finding an ex-directory number. I was shown only sample entries. There is evidence showing Nigel to be the user of those who supplied unlawful information gathering services. That has not been challenged by the defendant in this application or otherwise in connection with Nigel.
The claimants also maintain that Nigel is the source called “Nigel” who supplied information to Mr Nick Parker, who held a senior position at the Sun at the time (and who still does). It is apparent from disclosed emails that he had a source called Nigel, and it is a reasonable inference that that Nigel carried out medical information blagging, because it is suggested that he had taken over to some extent from another known medical blagger. Mr Parker was ordered to disclose the entirety of a contact list that he had maintained (and which was originally disclosed very heavily redacted). The only redactions permitted were Mr Parker's personal details and details of confidential sources who were not involved in unlawful information gathering. When the redactions were removed the Nigel who is the subject of this application was revealed (forename and surname) on that unredacted list and the claimants seek to infer that that Nigel was not a confidential source or that if he was then he must have been a user of unlawful information gathering techniques. Otherwise he would have remained redacted. The claimants seek to forge a link between the Nigel who is the subject of this application and Mr Parker, to demonstrate knowledge of unlawful information gathering techniques at a high level in the Sun newspaper. An order was made requiring the defendant to reveal the identity of the Nigel who provided information to Mr Parker. I was told by Mr Sherborne, that the defendant has said that it cannot identify that person even after asking Mr Parker.
By an order dated 1 st November 2019 the defendants were ordered to:
“… search for and disclose to the Claimants (subject to the Defendant's right to protect its confidential sources):
….
b. any SAP payment records relating to Nigel [and his associated entities] and any emails on Relativity sent to or from [Nigel's email addresses].”
The “SAP payment records” are records in which, inter alia, payments to contributors are recorded. They have (according to the claimants) provided a fruitful source of information said to demonstrate payment for unlawful activities.
The order did not allow for a relevance test to be applied. The only exception was the right to withhold information to protect a confidential source. In response to that order the defendant disclosed 79 emails and (as its solicitors explained in correspondence) withheld 1474 emails and 49 SAP payment records. No further details or date ranges were provided of emails or payments. It was explained that those documents were withheld under the “confidential source” proviso, and it was also explained that the documents had been reviewed for relevance and none of them were in fact relevant.
The claimants now apply for the provision of all the withheld SAP records and emails. They dispute that Nigel qualifies as a confidential source who is entitled to be protected, on the basis that he is a journalist, and is effectively conducting a commercial enterprise in supplying tips. They express deep scepticism that he can have been a confidential source in respect of every tip he provided (which would seem to be a large number judging by the number of emails withheld).
The defendant has served evidence in support of its stance. Mr Sturgis has provided a witness statement saying that the withheld documents should not be disclosed because “to do so would identify [the defendant's] source of information”. His witness statement goes on to say:
“4. [Nigel] was a freelance journalist who also previously worked at [another newspaper]. He was a source who provided me with information on a variety of stories and tips for publication over a number of years. This was on the understanding that he would not be identified as the source of any resulting material published. [Nigel] wanted his identity protected for the purpose of such publications. I have been shown copies of certain documents which I understand were withheld from disclosure. I confirm they identify [Nigel] as my source of information for stories or potential stories.
5. To the best of my knowledge, [Nigel] obtained all the information he provided to me legitimately.”
Miss Montgomery confirmed, on instructions, that “certain documents” was not all the documents that are in dispute; Mr Sturgis was shown only some (we do not know how many) of those disputed documents. 1
The arguments
Mr Sherborne questioned most aspects of the claim that Nigel was a confidential source. Taking the points logically, he first queried the adequacy of the evidence of confidentiality. He said it was too thin to amount to confidence which covered the entirety of Nigel's activities, which are likely to have involved many tips. The short assertion of confidentiality did not indicate when it was, whether it was an ad hoc agreement covering some stories only, or how long it might have been expected to last for. He suggested that Mr Sturgis was not particularly to be relied on in this respect, bearing in mind that several documents that he showed me indicated that Mr Sturgis was himself a user or procurer of unlawfully garnered material – he showed me emails in which Mr Sturgis suggested blagging to get information, “turning” a phone number, and of his being provided with the email address and password of a pop star (procured from an employee of the email provider) apparently so that that email account could be perused for useful information. Mr Sherborne also drew attention to previous occasions on which confidentiality for what was said to be a source was claimed, only for the claim to be withdrawn when the claimants pressed on the point, and the source turned out to be a freelance journalist. So averments of confidentiality, he said, should be treated with the greatest caution. He did, however, accept that if there was an actual agreement covering all stories provided by the journalist, then Nigel would be a confidential source for the purposes of the law on such things.
If there was a degree of confidentiality which would normally attract protection for the source, then Mr Sherborne submitted that the interests of justice in this case required disclosure. There...
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