When the ‘Interests of Justice’ Outweigh Freedom of Expression

DOIhttp://doi.org/10.1111/j.1468-2230.1992.tb00921.x
Publication Date01 May 1992
AuthorIan Cram
Date01 May 1992
The Modern Luw Review
[Vol.
55
When the 'Interests
of
Justice' Outweigh Freedom
U
of
Expression
Ian
Cram"
The decision of a unanimous House of Lords
in
X
Ltd
v
Morgan-Grampian Ltd
and
Others'
will
probably be remembered as the occasion when the ability of the
media to protect their sources under section
10
of the Contempt of Court Act
1981
was seriously eroded. Such an account would, however, fail to record the efforts
which were made to give substance to the general legislative policy behind
s
10
-
namely, ensuring the flow of information into the public domain via the media
(ie by protecting media sources). It
will
be argued that, whilst certain criticisms
may be made of the decision to order disclosure, the case ultimately raises doubts
about the adequacy of the statutory formula itself.
The
Facts
In a bid to raise much needed capital, the plaintiffs who were two associated private
companies submitted a plan for consideration by prospective lenders. Much of the
information was highly confidential and the trial judge, Mr Justice Hoffman, found
that its publication pending the outcome of negotiations would cause severe damage
to the plaintiffs. When one of the copies of the draft plan disappeared, William
Goodwin, a trainee journalist employed by the publishers Morgan-Grampian was
contacted by a source whose information was held by the judge to justify the inference
that the source had read the missing copy. After Goodwin spoke with the plaintiffs
to confirm the source's information, but before the defendants decided whether to
publish, the plaintiffs obtained an
ex
parte
injunction to restrain publication. Later,
at an
inter parres
hearing, the plaintiffs successfully sought orders against the
publishers and the journalist for the disclosure of Goodwin's notes. The orders were
upheld
in
the Court of Appeal. On further appeal to the House of Lords, the principal
issue was whether the defendants were protected from having
to
disclose their
source.2
Section
10
of the Contempt of Court Act
1981
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
or
for
the prevention of disorder
or
crime.
By the time of the House of Lords hearing, the plaintiffs' sole contention was that
disclosure was 'necessary
in
the interests of justice.
'3
*Lecturer
in
Law, University of Leeds.
I
11991)
1
AC
I.
2
In the course of the aooeal. the House dismissed counsel for Mr Goodwin's arpument that the House
lacked jurisdiction tiorder disclosure of the documents, since the plaintiffs hid already obtained an
injunction preventing the defendants from publishing the confidential information. Their Lordships
also found that the Court of Appeal had been wrong
to
decline
to
hear counsel for Mr Goodwin who
was, by the time of the Court of Appeal hearing, in contempt of an order of the court.
At the Court of Appeal, the plaintiffs had also claimed that disclosure was necessary for the prevention
of crime. The court (Donaldson MR and Ralph Gibson
W)
ruled that, as
this
phrase had already been
considered in
In
re
An
Inquip under the
Compunv
Securities (Insider Deuling)
Act
1985
[
1988)
AC
660,
3
400

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