X Ltd v Morgan-Grampian (Publishers) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE McCOWAN |
| Judgment Date | 12 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1212-6 |
| Docket Number | 89/1197 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 1989 |
[1989] EWCA Civ J1212-6
The Master of the Rolls
(Lord Donaldson)
Lord Justice Ralph Gibson
Lord Justice McCowan
89/1197
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR. JUSTICE HOFFMANN)
Royal Courts of Justice
MR. CHRISTOPHER CLARKE Q.C. and MS. HEATHER ROGERS (instructed by Messrs. Oswald Hickson, Collier & Co.) appeared for the Appellants (First and Second Defendants).
MR. GEOFFREY ROBERTSON Q.C. and MR. ROBIN OPPENHEIM (instructed by Messrs. Bindman & Partners) appeared for the Appellants (Third Defendant).
MR. JOHN McDONNELL Q.C. and MR. RAYMOND DAVERN (instructed by Messrs. Lovell White Durrant) appeared for the Respondents (Plaintiffs).
On 22nd November 1989 Hoffmann J. ordered Mr. Goodwin, who is a young journalist, to disclose the notes of a conversation which he had had with an anonymous informant ("his source"), in the course of which he had come into possession of highly confidential information contained in a business plan of the plaintiffs. I do not identify the plaintiffs and an order has been made forbidding their identification or the publication of any matters which would lead to that identification, because if such occurred the damage which they seek to avoid would be done and any rights which they may have would be lost. The plaintiffs, who are two associated private companies, needed to raise additional working capital and formulated this plan for submission to prospective lenders. There were only four copies of the document and only one copy was ever left unguarded and that only for the space of one hour during the afternoon of 1st November 1989. That was, however, sufficient for that copy to disappear.
Hoffmann J. concluded that it was a reasonable inference from the evidence that it was stolen and that Mr. Goodwin's source was either the thief or had been in touch with the thief. The plaintiffs thought, probably with reason, that discovery of Mr. Goodwin's notes would reveal the identity of his source and directly or indirectly enable the plaintiffs to recover the missing copy of their business plan and to obtain injunctive relief against any unauthorised person who had seen the contents of the plan. The deadline fixed by Hoffmann J. for compliance with his order was 3 p.m. on 23rd November.
The two Morgan-Grampian companies publish a respected journal called "The Engineer" and Morgan-Grampian PLC were Mr. Goodwin's employers. At an earlier stage in the proceedings the plaintiffs had sought an order against them that they reveal Mr. Goodwin's source. They have never known it, but they accepted that Mr. Goodwin's knowledge, obtained in the course of his employment, was vicariously their knowledge. In the circumstances, all that they could do at that stage in order to comply with such an order was to instruct Mr. Goodwin to make his notes available to the plaintiffs and this they did. I say "at that stage", because, if the refusal is maintained, they would be obliged to take serious disciplinary action against him or risk the inference being drawn that their instruction was not intended to be taken seriously. In the event, Mr. Goodwin did not comply with that instruction, and, as a result, the plaintiffs sought an order against Mr. Goodwin personally.
In this situation Mr. Goodwin was faced with a dilemma from which he deserved, if possible, to be rescued. On the one hand Hoffmann J., having concluded that the plaintiffs were entitled to disclosure of Mr. Goodwin's notes, was prepared to brook no delay. This was understandable. On the other, Mr. Goodwin may well have been convinced that his order should not have been made and indeed the judge gave Mr. Goodwin leave to appeal, although, in the light of section 18(1)(h)(iii) of the Supreme Court Act 1981, no such leave was needed. The dilemma arose because any appeal would be pointless once he had complied with the court's order as framed by Hoffmann J. and it was by no means certain that this court could hear and determine the appeal within 24 hours.
In these circumstances, Mr. Goodwin applied to this court for an immediate hearing of the appeal or a stay on Mr. Justice Hoffmann's order. It was not practicable to arrange an immediate hearing of the appeal without disrupting other urgent work. On the other hand, as I have said, Mr. Goodwin deserved protection from a situation in which he could be held to be in contempt of court merely because he wished to exercise his undoubted right to challenge the correctness of the judge's order and, pending that appeal, did not wish to comply with it since compliance could never be undone.
We could have imposed a stay, but Mr. Goodwin had already adopted a highly equivocal attitude as to whether it was for him or for the courts to decide whether the identity of the source should be divulged. In the circumstances, we considered it more appropriate to vary the judge's order so that Mr. Goodwin's obligation became either to disclose his notes to the plaintiffs as the judge had originally ordered or to put them into a sealed envelope with an affidavit verifying the contents, the envelope to be delivered to the court and not to be opened unless and until any appeal against the judge's order had been finally dismissed by this court or by the House of Lords. Should the appeal finally be upheld and the judge's order set aside, the envelope was to be returned to Mr. Goodwin intact.
This order, as it then seemed and still seems to me, fully preserved Mr. Goodwin's legitimate rights. If, as appeared to be the case, he wished to challenge the judge's order, all that he had to do was to put his notes in the envelope and to swear the affidavit. This would not of itself have identified his source to anyone. But what the amended order did not do, and was indeed specifically designed to prevent, was putting Mr. Goodwin into a position in which he could indulge in a game of "Heads I win; tails the plaintiffs lose—if I can succeed in my appeal well and good, but if I cannot, I will disobey the court's order". In the event this is precisely what Mr. Goodwin appears to have had in mind, because he complied with neither of the alternatives under the revised order within the time specified or at all.
Subsequently, Mr. Goodwin appeared before Hoffmann J., who found him guilty of contempt of court. However, he postponed sentence until after the hearing of this appeal. Mr. Goodwin is, as the judge found, a very young trainee journalist who only left university this summer. His investigative talent, which he displayed in this instance, will no doubt stand him in good stead in the future and I hope that he will have a long and distinguished career. However, his inexperience has inevitably led him to consult with others of greater experience and, whatever he may say about the decision being his alone, I do not doubt that he has been guided by their advice, and they must bear a very heavy burden of responsibility for that advice.
In an affidavit sworn in the Chancery Division on 24th November Mr. Goodwin deposes as follows:—
"3. On being employed by the "The Engineer" I determined to join the National Union of Journalists, and had taken steps to lodge a membership application prior to the commencement of these proceedings. My membership was approved in the course of the proceedings and I have been able to consult senior NUJ officials about my position at crucial stages in the case. While they have been [sic] offered advice and have been supportive of the decisions I have taken, I accept full responsibility for my decision to disobey the court order, which was mine alone.
4. These proceedings have placed me in a conflict which I have been unable to reconcile between my duty to obey the law and my duty to protect my source. The information about the Plaintiff company was provided to me pursuant to an undertaking that I should not divulge the name of the contact. I do not believe that the information involved in this case was supplied to me pursuant to some criminal enterprise or from any personal or competitor inspired malevolence towards the Plaintiff company. I cannot therefore see a moral justification for breaking my undertaking. I have, in effect, pledged my word of honour to my source that I will not disclose his or her identity, and I have not been released from the promise by the source. This personal obligation is complementary [to] my professional obligation as a journalist under the NUJ code of conduct, to protect my sources of information.
5….
6. I was in court on Wednesday morning and heard the reasons for Mr. Justice Hoffmann's order. I returned to work, but was contacted by my solicitor at approximately 3.30 that afternoon and told that the Court of Appeal wished to know, before considering the application for a stay of execution, whether I was minded to disobey the order in any event, or whether I would be prepared to hand over my notes to the court in a sealed envelope only to be opened in the event that the appeal was rejected. I explained that I had not at that stage finally made up my mind whether to comply with an ultimate order to hand over my notes, and I understand that this was communicated to the court. It varied the order, directing me to deliver up my notes in a sealed envelope, to await the decision of the Court of Appeal.
7. That evening, and the following morning, I had anxious consultations with NUJ officers, and with professional colleagues before coming to a final decision. Once again, I accept full responsibility for the decision I...
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