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Cite as:  EWCA Civ 334
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Case No: 2000/2250/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(THE HON MR JUSTICE ROUGIER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 18th December 2000
THE MASTER OF THE ROLLS
LORD JUSTICE MAY
LORD JUSTICE LAWS
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ASHWORTH SECURITY HOSPITAL
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR NIGEL PLEMING QC and MR VINCENT NELSON (instructed by Reid Minty, London, W1X 9HZ) appeared on behalf of the Respondant.
MR DESMOND BROWNE, QC and MR RICHARD PARKES (instructed by Swepstone Walsh, London, W1M 5FQ) appeared on behalf of the appellant.
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As Approved by the Court
Crown Copyright ©
LORD PHILIPS (Master of the Rolls):
1. On 2nd December 1999 the Appellant `MGN' published in the Daily Mirror an article written by Mr Gary Jones, the `Investigations Editor', about Ian Brady, who, with Myra Hindley, was convicted in 1966 of what are popularly known as `the Moors Murders'. That article included a series of verbatim extracts from information held on a database called PACIS maintained by the staff of the Respondent, Ashworth Hospital Authority (`Ashworth'), in whose custody Ian Brady is detained. Mr Jones had received these extracts, together with additional information about Ian Brady held on PACIS, from one of his regular sources (`the intermediary'). Mr Jones subsequently paid the intermediary £1,500 for this information. The intermediary had received the information from a member of the staff of Ashworth (`the source'). The likelihood is that the intermediary paid the source for the information. Mr Jones knows the identity of the intermediary but not of the source. He believes, however, that if he discloses the name of the intermediary this will lead to the identification of the source. On 30th June 2000 Rougier J. ordered MGN to disclose the identity of the intermediary, as a means of identifying the source. MGN now appeal against that Order. They contend that it is one that Rougier J. had no jurisdiction to make and that it offends against Article 10 of the European Convention of Human Rights (`ECHR')
2. This Appeal raises the following major issues in respect of Rougier J's Order:
* Was there jurisdiction under the principle in Norwich Pharmacal Co & Others v Customs & Excise Commissioners  AC 132 (`Norwich Pharmacal')?
* Was there jurisdiction under the principle in Broadmoor Hospital and another v R  WLR 1590 (`Broadmoor')?
* Did the Order infringe S.10 of the Contempt of Court Act 1981 (`Section 10')?
* Did the Order infringe Article 10 of the ECHR (`Article 10')?
3. Before turning to these issues, it is necessary to address the relevant facts.
4. Ashworth is one of three special hospitals provided by the Secretary of State for Health pursuant to Sections 1 and 4 of the National Health Service Act 1977, as amended, for persons subject to detention under the Mental Health Act 1983 who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities.
5. Prior to 30th September 1999 Ian Brady was accommodated at Ashworth on Jade Ward. On that day he was transferred to Lawrence Ward. He took objection both to the fact of this transfer and to the manner in which it was achieved. He immediately complained to the police that he had been assaulted and renewed his complaint through the National Health Service Complaints Procedure. He also went on hunger strike, refusing to take food or nutritionally sweetened drinks. At the same time he began a media campaign, writing repeatedly to the BBC and others and issuing information through his Solicitor. He complained about the way that he had been treated and gave details of his hunger strike and the manner in which it was affecting him.
6. Substantial media interest was stimulated and Angela Anderson, Ashworth's Director of Communications, found it necessary to issue a total of twelve press releases between 1st October 1999 and 11th January 2000 in answer to inquiries for information. The second of these, on 2nd October, began by stating:
"Ian Brady, a patient at Ashworth Hospital, has exercised his right to refuse permission for the hospital to disclose any clinical details about him"
7. The press releases did no more than outline the manner in which Ian Brady was being treated. On 29th October it was announced that as he had refused food for a total of 30 days, a programme of `re-feeding' had been introduced. This involved force feeding by means of a naso-gastric tube.
8. On 2nd February 2000 Ian Brady obtained leave to apply for judicial review, challenging the continuing decision to force feed him. Pursuant to his application, which was supported by Ashworth, the hearing took place in private. The Judge, Maurice Kay J., announced however that judgment would be given in open Court. It was delivered on 10th March 2000. It ruled that the force feeding was lawful in that it was reasonably administered as part of the medical treatment given to Brady for the mental disorder from which he was suffering. By virtue of S.63 of the Mental Health Act 1983 consent was not needed for such treatment. The Judgment set out, in detail, particulars of Ian Brady's clinical history which related to this conclusion.
9. The article in the Daily Mirror spanned two pages under the heading:
"DEATH WISH DIARY
HUNGER STRIKE BRADY IS
DETERMINED TO DIE"
10. Much of the article consisted of extracts from what was described as `a "confidential" diary of his deteriorating condition kept by the authorities at Merseyside's Ashworth Hospital where he is serving out his life sentence.' A short extract will give the flavour of these:
Received a letter this pm, author unknown, containing plastic rosary beads and a small religious medal. Brady disposed of same.
During conversation re the subject of no alcohol for patients over the festive period, stated `What do you expect, with the ex-governor of a terrorist prison in charge?'
Still refusing food. Ian is taking fluids in the form of regular cups of coffee. Now weighs 13st, a loss of two pounds since yesterday.
Avoiding speaking with staff, offering only abrupt and hostile replies. Ian appeared very vague and a little disorientated towards his surroundings.
Ian was observed pacing the day area before returning to his usual daytime location in the smoking lounge.
He appeared to have co-ordination difficulty, dropping items he was carrying several times and finding it difficult to retrieve them. Weight 12st 12lbs.
Re blood tests, he stated `They can take the lot'"
The Relief Sought
11. After an exchange of Solicitors' letters Ashworth began proceedings on 25th January 2000 which, ultimately, sought the following relief:
"(1) An Order that the Defendant do forthwith deliver up to the Claimant all medical records or copy medical records or extracts therefrom in its possession, power, custody or control relating to the Claimant's care or treatment of Ian Brady, being a patient at Ashworth Hospital.
(2) An Order that the Defendant do forthwith be restrained from publishing, distributing or otherwise disseminating any information contained in the said medical records relating to Mr Brady.
(3) An Order that the Defendant do by its proper officer within two working days make and serve upon the Claimant a witness statement:
a) Explaining how it came to be in the possession or control of any medical records kept by the Claimant in respect of Mr Brady, whether that possession or control be of originals, copies or extracts.
b) Identifying any employee of the Claimant and the name of the person or persons (and any address, telephone and fax numbers known for such person or persons) who were involved in the Defendant acquiring possession or control of the said records."
12. An interim Order was made in terms of the first head of relief sought, but Mr Jones explained that, in accordance with his normal working practice, he had destroyed the material that he had received after writing his article. At the trial this was accepted, as was his statement that there was no intention to publish anything further based on that information. This led Rougier J, who described Mr Jones as `a straightforward witness' to decline to order the second head of relief. He did, however, make an Order in the terms of the third head of relief.
What did Mr Jones receive?
13. Before us there was a lively dispute between Counsel as to the information that was received by Mr Jones. No hint of this issue is to be found in the Judgment, but it proved to be one of some significance. It was Ashworth's case that Mr Jones received, by facsimile, a print out of that section of the database in which the extracts that he quoted had been recorded. Mr Desmond Browne, Q.C, for MGN, submitted, however, that the evidence demonstrated that the source had edited the print-out to remove sensitive material before providing it to the intermediary.
The PACIS Database
14. It is common ground that the extracts quoted in the Mirror article originated from Ashworth's PACIS database. Mr Brewster, Ashworth's Information Manager, produced at the trial 17 pages of print-out from the database. These had been redacted to exclude all matter except the extracts that were quoted in the Mirror article. That which remained constituted no more than about 5% of the original print-out.
15. Dr James Collins, the Consultant Forensic Psychiatrist who was Mr Brady's Responsible Medical Officer under the Mental Health Act, gave evidence that the 17 pages included `a wealth of material, far more than was published'. He added `I do not know who did the editing to select this material'. He went on to explain what the pages in question would have contained:
"These are the daily running records, and they will include medical nursing, social work, psychology, rehabilitation stuff; running records of the patient....
Care team meeting minutes would be within this record, so the discussions the care team have on the ward about where they think the case is up to, what they should be doing next, Mr Brady's mental state at any given time. The minutes of those meetings would be within this record."
16. He added that this material would have been considerably more sensitive than the extracts that were published. Mr Jones was asked about the material that he received. He said that he received a series of faxed sheets. Initially he said `it was more than one page. I cannot remember how many, but there were several pages'. Subsequently he said that there were probably about a dozen, though he could not say exactly. The printing filled up the full A4 pages. It appeared to be the daily diary in its entirety:
"...the material we printed was that which is of interest to us. There was no clinical detail to the records...
I would say probably there was twice the amount of information than we published that I had possession of, and it was not very detailed, it was not very important to me, and I cannot remember exactly what it contained....
To me it just seemed a diary of eye witness accounts of Brady's movements on a daily basis."
17. Mr Jones was asked whether some portions of the notes were rather more sensitive than the ones he did use. He replied that he did not remember any other sensitive points.
18. Mr Browne submitted that, unless Mr Jones' evidence was rejected as untruthful, it must follow that the pages he received were not facsimiles of a print-out from PACIS. The source in Ashworth must have edited the print-out in order to remove sensitive material.
19. I can find no trace in the proceedings below of a suggestion that the source `sanitised' the PACIS print-out before passing it to the intermediary - indeed MGN's skeleton argument suggests that `the material might have been printed out, left lying in a ward and picked up by a visitor'. I do not accept Mr Browne's submission that one is driven by Mr Jones' evidence to conclude that the source edited the print-out. I would not impugn the Judge's conclusion that Mr Jones was a straightforward witness, but his description of the information that he received was vague and contained inconsistencies. He was so uncertain about the number of pages that he received that I have no difficulty in reconciling his `about a dozen' pages with the 17 pages of the print-out. On his own description of the diary that he received, the extracts that he selected for his article can only have been a fraction of the total material, not about half of it.
20. I have concluded that the overwhelming likelihood is that the source provided to the intermediary a print-out from the PACIS database of the daily `running records' in relation to Ian Brady for the period from 1st to 29th October 1999 and that this was faxed on by the intermediary to Mr Jones in its entirety. From this information Mr Jones selected the short extracts that were included in his article.
Ashworth's Data Recording System
21. The PACIS system was used to record all data about patients at Ashworth, in preference to hand copy records. There was a degree of grading of information, so that some had access restricted, while `general information' was available to all who had access to the database. Because those caring for psychiatric patients require information about them for a wide variety of purposes, access to the database was conferred widely on staff at Ashworth. Those who had access to Ian Brady's file within PACIS included the staff on his ward, his Patient Care Team, site managers, medical care staff, health record staff, the pharmacy, all doctors in the directorate and their medical secretaries, all psychologists and social workers and security staff. In all about 200 people had access to all the material on the general records held on PACIS.
22. Any person who had access to material could print this out from any terminal at Ashworth without leaving any audit trail indicating that this had been done, or by whom.
23. The confidentiality of patients' medical records was strongly emphasised whenever a new member of staff was engaged at Ashworth and the standard contract of employment contains the following clause:
"DISCLOSURE OF INFORMATION
You must not whilst you are employed or after your employment ends disclose to any unauthorised person information concerning the Authority's business or the patients in its care nor must you make any copy, abstract, summary or précis of the whole or part of a document relating to the Authority."
Tightening of Procedures
24. Ms Roberts, the Ashworth Project Director agreed that the publication in the Mirror had led to a rethink about `who should have access to what' and to a `tightening of procedures to limit information on a "need to know" basis'. She had also recommended the introduction of an audit trail facility, which would identify which authorised users had had access to particular files. She commented, however, that in order to put in place a robust security system it was necessary to know how the leak to the Mirror had occurred. Even then, no system could guarantee that someone with access to information would not improperly make it public.
Attempts to Find the Source of the Leak
25. As soon as the publication in the Mirror occurred, Ashworth carried out an internal investigation in an attempt to find out how the leak had occurred and who was responsible for it. The investigation was unsuccessful. No criticism has been made of its adequacy. Compliance with the Order made by Rougier J. is the only way in which the identity of the source is likely to be discovered.
The Effect of the Leak
26. Rougier J. recorded that:
"Witnesses called on behalf of the claimant have given me reasons which I find compelling, whereby a leak such as this has the effect of creating a highly detrimental impact on the security of the hospital, the treatment of its patients, and the morale of the staff."
27. The Judge then went on to set out these reasons. Mr Browne has challenged each of them, arguing that they were nothing like as compelling as the Judge suggested. I propose to consider shortly the challenge made to the most important of these.
Inhibition on Staff Recording Information
28. The Judge found that:
"...in a psychiatric hospital the fullest possible knowledge of a patient is requisite, since it enables the hospital to provide the least restrictive environment and to treat and to manage its patients safely, and thereby to prevent them either running into danger from other patients or becoming a danger themselves....
The knowledge that such information may find its way into unauthorised hands may well have the effect of inhibiting the appropriate recording of information to the patients' detriment. To a slight degree that has already happened here, according to Dr Collins, the medical officer responsible for Ian Brady."
29. Mr Browne argued that this consideration was not compelling as, on the evidence, it had only happened `to a slight degree'. This was a reference to a more cautious attitude spoken to by Dr Collins in respect of recording material on the database. It is correct that the evidence did not demonstrate that the Mirror publication had led to a significant change in the willingness of staff at Ashworth to record information on the database. At the same time there was evidence which justified the Judge's conclusion that if confidence in the security of a database is destroyed, there will be inhibition upon the use of the database for recording sensitive information. Common sense tells one as much.
Inhibition on Patients Providing Information and Damage to the Therapeutic Patient/Doctor Relationship
30. The Judge found that knowledge of leaks was liable to have the effect of dissuading patients from providing information about themselves and that:
"Once it were known among patients that their records might well be leaked there would, in all probability, be a sharp downturn in the essential therapeutic patient/doctor relationship where trust is of fundamental importance. I have heard that many of these patients become quite paranoid about what is written about them."
31. Mr Browne made the point that there was no evidence that this in fact occurred after the Mirror publication. This is correct, but there was ample evidence from staff at Ashworth that public disclosure of information provided in confidence would be likely to destroy trust and hinder therapy. Again, it seems to me that this proposition is self-evident.
Damage to Staff Relationships
32. The Judge found that:
"The presence of a mole in the ranks creates an atmosphere of mutual distrust amongst the staff which is highly detrimental to efficient and co-operative working."
33. Mr Browne made the point that so many of the staff had had access to the information leaked that there was no scope for the finger of suspicion to point to any individual. This is beside the point. Ashworth hospital has had an unhappy history, which it is unnecessary to explore in this Judgment. This left its staff, however, particularly vulnerable to an incident such as the leak to the Mirror. Ms Roberts gave evidence of clinicians reporting to her that the incident had impacted on their clinical work. She said:
"I think it is difficult to emphasise the importance and the time and the energy and the commitment that the new management team have been putting into trying to build up confidence of establishing a new management arrangement, number of new appointments, of trying to say, put the past behind us and move on. These sorts of events make people feel it is more of the same. We will be dogged by these kinds of occurrences."
The Risk of a Recurrence
34. The Judge held:
"I think too much emphasis has been laid upon the fact that the authority were unable to point to a great deal of damage on the lines that they fear having taken place as a result of this particular leak. In my judgment, it is not so much the nature of this leak, but the fact that it happened at all, which is all important, for, unless stopped, that which has occurred once may well occur again. I do not see that however much the procedure was tightened it could ever be made watertight."
35. Mr Pleming, QC, for Ashworth, relied heavily on this finding. He submitted that should MGN's appeal be allowed, this would act as a signal, not merely to the source but to other hospital staff, that patient confidentiality could be disregarded with impunity. Mr Browne challenged the Judge's finding that unless stopped, that which had occurred might occur again. In so doing he relied upon `the (perhaps surprising) responsibility of the source in what he should select for release'. I have already given my reasons for rejecting this analysis of the facts. Mr Browne also relied on the tightening of Ashworth's security procedures, but the evidence was that these could not ensure that the source did not strike again. Finally Mr Browne urged that the Mirror publication about Brady was `one-off' and that there was an apparent lack of interest by the media in Ashworth patients other than Brady.
36. I consider that the Judge's evaluation of the likelihood of further disclosures of patient information from within Ashworth was correct. Dr Collins gave evidence that, while the Mirror publication was the first occasion upon which there had been a leak of hospital notes, the general view within the hospital was that there had probably been leaks by hospital staff to the media, in the form of stories. This picture tallies with evidence given by Mr Jones that the intermediary:
"...has a number of sources within the hospital, who has been the supplier of accurate information in the past."
37. This evidence suggests that the disclosure of hospital records represents an escalation in a series of disclosures from Ashworth and raises a real danger that if the source is not identified, further disclosures of confidential records may occur.
38. Mr Browne made the point that there had been no leak from Ashworth since the Mirror publication. I do not find that surprising. I would expect the intermediary and the source to be lying low, awaiting the result of these proceedings.
39. With this summary of the facts, I turn to the first major issue of law.
Norwich Pharmacal Jurisdiction
40. In Norwich Pharmacal Co v Customs & Excise Commissioners  AC133 the issue that remained when the case reached the House of Lords was whether the Court had jurisdiction to order the Commissioners of Customs and Excise to disclose information, received in confidence, that would identify importers of goods which infringed the Plaintiffs' patents, where no other claim for relief lay against the Commissioners. The House of Lords held that the Court had an equitable jurisdiction to make the Order sought.
41. At the outset of his Judgment Lord Reid examined the history of discovery as a remedy in equity and identified the principle that:
"discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in respect of the same wrong."
42. He went on to consider the position of a party, such as the Commissioners, who were not wrongdoers but had facilitated the wrongdoing. After referring to a number of early authorities, he held at p.175:
"They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.
I am the more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make full disclosure even though the person wronged has no intention of proceeding against him. It would I think be quite illogical to make his obligation to disclose the identity of the real offenders depend on whether or not he has himself incurred some minor liability. I would therefore hold that the respondents must disclose the information now sought unless there is some consideration of public policy which prevents that."
43. In the present case Ashworth advanced the following propositions founded on Norwich Pharmacal:
1. Where a person becomes involved in the tortious acts of others the Court imposes upon that third party a duty to assist one injured by those acts by giving him full information by way of disclosure of the wrongdoer.
2. Where a person gets mixed up in the unlawful acts of others (which need not be tortious) he incurs a similar liability to that set out in 1.
44. The first proposition as a general principle, is not controversial. Mr Pleming conceded, however, that the second was unsupported by authority.
45. Ashworth's contentions on the application of these principles to the facts of the present case were as follows:
1. The abstraction by the source of the extract of Ian Brady's confidential records was tortious.
2. The transfer of the confidential information to MGN, through Mr Jones was tortious.
3. MGN were `mixed-up' in the tortious conduct within the principle in Norwich Pharmacal.
4. The abstraction and transfer of the information was unlawful and the same consequences follow.
46. MGN's case in relation to Ashworth's attempt to found jurisdiction on Norwich Pharmacal was as follows:
1) The information transferred was not confidential in nature and involved no wrongdoing.
2) If the information was confidential in nature, it ceased to be confidential when Brady put it into the public domain.
3) If the information was confidential, the confidence was Brady's, not Ashworth's and Ashworth had no standing to take proceedings to enforce it.
4) The principle in Norwich Pharmacal only applies to tortious conduct. The breach of confidence alleged in this case was not tortious.
Was the Information Confidential?
47. MGN contended that the information disclosed was so banal as to be incapable of being confidential. The Judge rejected this contention. He held:
"It is well settled that there is an abiding obligation of confidentiality as between doctor and patient, and in my view when a patient enters a hospital for treatment, whether he be a model citizen or murderer, he is entitled to be confident that details about his condition and treatment remain between himself and those who treat him. Furthermore, there must be a subjective element as to what any one patient would consider so personal that he would not wish it to be divulged."
48. I am in no doubt that the information disclosed was confidential. While much of the information quoted in the Mirror article was banal, Dr Collins drew attention to the fact that it included clinical observations, albeit that Mr Jones did not recognise them as such. There is, however, a further and important point. The relevant information, when considering whether a breach of confidence occurred, is the whole of the PACIS print-out that was transmitted to Mr Jones, not merely those passages that he chose to reproduce in his article. Having regard to the overall nature of this material, as described by Dr Collins, it is clear that it was confidential.
Had the Information Disclosed been Placed in the Public Domain by Brady?
49. Rougier J. held that the extract published in the Mirror was `no more than a watered down version of that which Ian Brady himself has thrust into the public domain in furtherance of his campaign'. He went on to hold that any confidence was Brady's and not Ashworth's. On that basis he concluded that Ashworth could not found jurisdiction on breach of confidentiality.
50. Had Brady sought to complain that the publication in the Mirror included confidential material about him, it is likely that his own conduct in putting similar information into the public domain would have provided the answer to his complaint. What is at issue, however, is whether Brady's conduct removed the confidential character of the detailed diary of observations that had been placed on the PACIS database by various members of Ashworth staff. That question is linked with the question of whether any confidence in the information attached to Brady alone, or whether it also attached to Ashworth.
Was the Confidence that of Brady Alone?
51. Focusing on the article published in the Mirror, Rougier J. held that Ashworth had no right to confidentiality in the information that it contained. His reasoning was as follows:
"On reading the article I am unable to detect anything contained therein which strays outside the limits of what might be termed Ian Brady's personal right to confidentiality. I am not impressed by the argument that merely because the descriptions of the man come from various sources within the hospital, that automatically creates a state of confidentiality of which the hospital could take advantage, but I wish to make it quite plain that that is a decision which I have reached upon the facts of this case, and upon a reading of this article. I must not be taken to be voicing any general proposition that data recorded about a patient in a fashion such as this could not, in an appropriate case, attract the shield of confidentiality in favour of the hospital."
52. I am unable to accept this reasoning. The extracts published consisted of observations of Brady by different members of the staff at Ashworth that were recorded as part of his medical records. Though they were personal to Brady, I consider that Ashworth had a clear independent interest in retaining their confidentiality. The Department of Health published, on 7th March 1996, Guidance on the Protection and Use of Patient Information. This includes the following guidance under the heading, `Who has a duty of confidence?':
"Everyone working for or with the NHS who records, handles, stores, or otherwise comes across information has a personal common law duty of confidence to patients and to his or her employer."
53. This guidance accurately states the position. Both Ashworth and its patients shared an interest in the confidentiality of patient records.
54. I do not consider that the publicity generated by Ian Brady himself in the period before the publication of the Mirror article had the effect of stripping the cloak of confidentiality from the more detailed records about Brady on the PACIS database. Ashworth was entitled to insist that those records remained confidential.
Is Norwich Pharmacal jurisdiction restricted to tort?
55. The wrongdoing in which the Commissioners for Customs and Excise were `mixed up' in Norwich Pharmacal was tortious. MGN submitted that the jurisdiction recognised in that case was one which arose only in relation to tort. If that is correct, a claimant can only invoke Norwich Pharmacal jurisdiction in a breach of confidence case, if the breach of confidence involves tortious conduct. This it will often do. If the confidential information is in, or reduced to, hard copy form, the paper on which it is recorded will often belong to the claimant. Unauthorised transfer of the information will often involve the conversion by the source of the paper on which the information is printed.
56. Mr Pleming submitted that, on the authorities, the Court focuses when considering Norwich Pharmacal jurisdiction in a breach of confidence context, not on the breach of confidentiality but on the tortious act of the source in converting or stealing the document containing the confidential information.
57. If this equitable head of jurisdiction depends upon the fortuity of whether or not a virtually valueless piece of paper on which the information is recorded belongs to the claimant, our law is in a sorry state. Do the authorities lead inexorably to this conclusion?
58. The starting point must be Norwich Pharmacal itself. In the much quoted passage from his judgement at p.175, which I have set out earlier, Lord Reid spoke expressly of a person getting mixed up `in the tortious acts of others'. Elsewhere, however, he spoke of `the wrongdoer'. None of the other members of the Committee suggested that the jurisdiction to order disclosure was restricted to cases of tort. Lord Morris spoke of `wrongdoers' (pp.178, 179) and of the protection of a plaintiff's `interests' and `rights' (pp. 178, 180). Viscount Dilhorne spoke of `a just cause of action' (p.202), `litigious matters' (p.203), `unlawfully causing him damage' (p.203), `a bona fide claim' (p.203), `infringing rights' (p.205).
59. The authorities to which Lord Reid referred and which were exhaustively analysed by other members of the Committee, involved a wide variety of causes of action. They included passing off : Orr v Diaper 4 Ch D 92; liability of stockholders for debts : Post v Toledo, Cincinnati and St Louis Railroad Co (1887) 11 N.E. Rep. 540; interference with proprietary rights that might involve breach of contract : Moodalay v Morton (1785) 1 Bro.C.C. 462; 2 Dick. 652.
60. In none of these cases did the precise nature of the alleged infringement of the Plaintiff's rights appear to have been material, nor did any member of the Committee draw any distinction between them on that basis - see, in particular, Lord Cross at p.197.
61. I can see no basis in principle for confining Norwich Pharmacal to cases involving tort. On the contrary the principle in Norwich Pharmacal should be one of general application. Under it jurisdiction to order disclosure of the identity of wrongdoers should exist in equity wherever the person against whom disclosure is sought has got `mixed up' in wrongful conduct that infringes a claimant's legal rights. That general principle emerges from the judgments of Lord Morris, Viscount Dilhorne, Lord Cross and Lord Kilbrandon. I do not believe that Lord Reid's reference to `tortious acts' was any more than a reflection of the fact that the relevant wrongdoing in Norwich Pharmacal was tortious.
62. Do the authorities preclude extending Norwich Pharmacal jurisdiction beyond the field of tort? We have been referred to a number cases in which the jurisdiction was invoked in cases which involved tort : British Steel v Granada Television  AC 1096; X Ltd v Morgan-Grampian  1 AC 1; Ricci v Chow  1 WLR1658. In each of these, express reference was made to the fact that the wrongdoing in respect of which the jurisdiction was invoked was tortious. I do not consider, however, that any of them precludes this Court from applying the principle in Norwich Pharmacal more widely. We have been referred to no decision which has held, in terms, that the principle is restricted to cases involving tort.
63. In the present case the source abstracted information from the PACIS database which he or she transmitted to the intermediary in breach of confidence and in breach of contract. The intermediary, knowing that the information had been obtained in breach of confidence, passed it to MGN, through Mr Jones. MGN, knowing that the information had been transferred in breach of confidence, published extracts from it. In these circumstances, claims for breach of confidence lie against MGN, the intermediary and the source. The basis of those claims was explored by the House of Lords in Attorney General v Observer Ltd and Others  1 AC 109. As against the source the claim can be brought in contract. As against all three it lies in equity - see per Lord Keith at p.225 and 261, Lord Griffiths at p.268 and Lord Goff at pp.281-2.
64. Proceedings were properly commenced against MGN, claiming relief additional to the disclosure of the identity of the others involved in the breach of confidence. This was not a case, such as Norwich Pharmacal where no substantive claim lay against the Defendant. The Defendant is not innocently mixed up in the wrongdoing of the source, but is a wrongdoer itself. At the outset of his Judgment in Norwich Pharmacal Lord Wilberforce said at p.173:
"Discovery as a remedy in equity has a very long history. The chief occasion for its being ordered was to assist a party in an existing litigation. But this was extended at an early date to assist a person who contemplated litigation against the person from whom discovery was sought, if for various reasons it was just and necessary that he should have discovery at that stage. Such discovery might disclose the identity of others who might be joined as defendants with the person from whom discovery was sought. Indeed in some cases it would seem that the main object in seeking discovery was to find the identity of possible other defendants. It is not clear to me whether in all these cases the plaintiff had to undertake in some way to proceed against the person from whom he sought discovery if he found on discovery being ordered that it would suit him better to drop his complaint against that person and concentrate on his cause of action against those whose identity was disclosed by the discovery. But I would think that he was entitled to do this if he chose."
65. Even if, contrary to my view, the jurisdiction to order discovery against an innocent party only arises when that party has been `mixed up' in tortious wrongdoing, I see no basis for extending that restriction to the case where the Defendant is susceptible to suit on the ground of the same wrongdoing as that perpetrated by those whose identity is sought.
66. In summary, I find that the jurisdiction of the Court was properly invoked in this case because:
(1) the principle in Norwich Pharmacal is not restricted to cases involving tort or
(2) if it is so restricted, the restriction does not apply where the Defendant is not merely innocently mixed up in the wrongdoing, but is a party to it.
67. I should add that, had it been necessary, I would reluctantly have held that jurisdiction was validly founded on the probability that, in abstracting the information, the source committed the tort of converting the 17 sheets of paper on which the information was printed, and that MGN was `mixed up' in that tort by purchasing and using the information printed on the paper - see the comments of Lord Donaldson MR in X Ltd v Morgan-Grampian  1 AC 1 at p.24.
The Broadmoor Jurisdiction
68. Rougier J. founded his jurisdiction to make the Order sought by Ashworth on the decision of this Court in Broadmoor HA v R  1 WLR 1590. This was correctly described by Counsel for MGN as an innovatory decision. As I have found a more conventional basis for the jurisdiction of the Court it is not necessary to consider whether Broadmoor might have provided an alternative route, had one been needed.
Section 10 of the Contempt of Court Act and Article 10 of the ECHR
69. Having found that there was a valid jurisdictional basis for making the Order that MGN attacks, it is now necessary to consider whether the exercise of that jurisdiction should have been precluded by S.10 of the Contempt of Court Act 1981. It is also necessary to consider the effect of Article 10 of the ECHR. That raises a question of the approach of this Court, having regard to the fact that, since Rougier J. gave judgment, the Human Rights Act 1998 has come into force. S.3 of that Act provides:
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
(2) This section -
(a) applies to primary legislation and subordinate legislation whenever enacted."
70. S.2 requires the Court to take into account the jurisprudence of the European Court of Human Rights, insofar as it is relevant.
71. These requirements should not, in practice, result in this Court applying a different approach to that which fell to be applied by Rougier J. The Courts have frequently stated that in the field of freedom of speech there is no difference in principle between English law and Article 10 of ECHR - see, for instance, A-G v Guardian Newspapers Ltd. (No.2)  1 AC 109, 283-4 by Lord Goff; Derbyshire CC v Times Newspapers  AC 534 at 551 by Lord Keith; R v Home Secretary, ex parte Simms  3 WLR 328 at p.336 by Lord Steyn.
72. More particularly, in Secretary of State for Defence v Guardian Newspapers Ltd  AC 339 Lord Scarman remarked of Section 10 at p.361:
"The section, it is important to note in this connection, bears a striking resemblance to the way in which many of the articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) which formulate the fundamental rights and freedoms protected by that Convention are framed: namely, a general rule subject to carefully drawn and limited exceptions which require to be established, in case of dispute, to the satisfaction of the European Court of Human Rights."
73. In Camelot Group Plc v Centaur Ltd  QB 124 at 132 Schiemann L.J. remarked that the 1981 Act was enacted to bring domestic law into line with the requirements of the ECHR.
74. Mr Browne contends, however, that the decisions of the English Court do not properly reflect the importance that the Strasbourg Court has attached to the freedom of the press and that Rougier J. failed to do so in the present case.
75. It is convenient at this point to set out the relevant provisions of Section 10 and of Article 10.
76. Section 10 provides:
"Sources of information
10. 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."
Article 10 provides:
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers... (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
77. Comparing these two provisions, it is apparent that Section 10 sets out to give effect to the general requirements of Article 10 in the narrow context of protection of the sources of information of the press. Article 10 permits the right of freedom of expression to be circumscribed where `necessary in a democratic society' to achieve a number of specified legitimate aims. Section 10 provides that the freedom of expression of the press may not be circumscribed by a requirement to disclose sources of information except where necessary for a number of specified purposes.
78. It seems to me that the approach to the interpretation of Section 10 should, insofar as possible:
(i) Equate the specific purposes for which disclosure of sources is permitted under Section 10 with `legitimate aims' under Article 10.
(ii) Apply the same test of necessity to that applied by the European Court when considering Article 10.
Purposes and Legitimate Aims
79. `National security' features both as a legitimate aim in Article 10 and as a purpose in Section 10. The same is true of `the prevention of disorder or crime'. The remaining purpose in Section 10, `the interests of justice' falls to be contrasted with `territorial integrity or public safety, the protection of health or morals, the protection of the reputation or rights of others, preventing the disclosure of information received in confidence', and `maintaining the authority and impartiality of the judiciary', all of which are to be found in Article 10. What light does the lengthy catalogue in Article 10 throw on the meaning of the phrase `the interests of justice' in Section 10. This question is of some importance, for a stark difference of view has been expressed in the House of Lords which must now, I believe, be resolved by reference to the Strasbourg jurisprudence rather than according to the doctrine of precedent, should the two be in conflict.
80. In Defence Secretary v Guardian Newspapers  AC 339 at 350 Lord Diplock stated:
"...in my view the expression `justice', the interests of which are entitled to protection, is not used in a general sense as the antonym of `injustice' but in the technical sense of the administration of justice in the course of legal proceedings in a court of law,..."
81. Lord Roskill, at p.369, agreed with this.
82. These views did not form part of the reason for the decision. In X Ltd v Morgan-Grampian Ltd  1 AC 1 at p.43 Lord Bridge advanced a wider interpretation:
"I agree with the first half of this dictum. To construe `justice' as the antonym of `injustice' in section 10 would be far too wide. But to confine it to `the technical sense of the administration of justice in the course of legal proceedings in a court of law' seems to me, with all respect due to any dictum of the late Lord Diplock, to be too narrow. It is, in my opinion, `in the interests of justice,' in the sense in which this phrase is used in section 10, that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives. Thus, to take a very obvious example, if an employer of a large staff is suffering grave damage from the activities of an unidentified disloyal servant, it is undoubtedly in the interests of justice that he should be able to identify him in order to terminate his contract of employment, notwithstanding that no legal proceedings may be necessary to achieve that end."
83. Ashworth rely on Lord Bridge's interpretation, for they have made it plain that if the source is identified their intention is to dismiss rather than implead him or her.
84. In Goodwin v UK  22 EHRR 123 at p.140 the European Court recorded the fact that Lord Diplock's interpretation had been replaced by that of Lord Bridge without adverse comment. It seems to me that both interpretations are consistent with Article 10, but that the interpretation of Lord Bridge accords more happily with the scheme of Article 10. Thus `interests of justice' in Section 10 mean interests that are justiciable. I cannot readily envisage any such interest that would not fall within one or more of the catalogue of legitimate aims in Article 10. In the present case Ashworth could argue that their claim for identification of the source is in the interests of the protection of health, the protection of rights of others and preventing the disclosure of information received in confidence.
85. In The Sunday Times v The United Kingdom (1979) 2 EHRR 245 at 275 the European Court commented:
"The Court has noted that, whilst the adjective `necessary', within the meaning of Article 10(2), is not synonymous with `indispensable' neither has it the flexibility of such expressions as `admissible, `ordinary', `useful', `reasonable' or `desirable' and that it implies the existence of a `pressing social need'."
86. The Court went on at p.278 to say that it had to consider not merely whether the interference complained of corresponded to a `pressing social need' but whether it was `proportionate to the legitimate aim pursued' and whether the reasons given to justify it were `relevant and sufficient under Article 10(2)'.
87. In Goodwin v UK the Court considered the decision reached by the House of Lords in X Ltd v Morgan-Grampian. That case had involved the supply to a journal of a stolen confidential corporate plan which gave information about the finances of a company that the English Courts found would, if made public, threaten severe damage to the company and consequently to the livelihood of its employees. In the leading Judgment Lord Bridge gave these reasons for holding that the disclosure of the identity of the supplier of the plan was `necessary in the interests of justice' within Section 10:
"It would be foolish to attempt to give comprehensive guidance as to how the balancing exercise should be carried out. But it may not be out of place to indicate the kind of factors which will require consideration. In estimating the importance to be given to the case in favour of disclosure there will be a wide spectrum within which the particular case must be located. If the party seeking disclosure shows, for example, that his very livelihood depends upon it, this will put the case near one end of the spectrum. If he shows no more than that what he seeks to protect is a minor interest in property, this will put the case at or near the other end. On the other side the importance of protecting a source from disclosure in pursuance of the policy underlying the statute will also vary within a wide spectrum. On important factor will be the nature of the information obtained from the source. The greater the nature of the information obtained from the source. The greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will be the manner in which the information was itself obtained by the source. If it appears to the court that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counterbalanced by a clear public interest in publication of the information, as in the classic case where the source has acted for the purpose of exposing iniquity. I draw attention to these considerations by way of illustration only and I emphasise once again that they are in no way intended to be read as a code."
88. The European Court accepted that the order to disclose the source pursued a legitimate aim in protecting the company's rights. It held, however, that it did not satisfy the test of being `necessary in a democratic society'. The Judgment of the Court included this important statement of principle:
"Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."
89. The Court held that a large measure of protection of the Company had been achieved by an interim injunction, which prevented media disclosure of the information. The Judgment continued:
"What remains to be ascertained by the Court is whether the further purposes served by the disclosure order provided sufficient justification.
In this respect it is true, as Lord Donaldson put it, that the injunction "would not effectively prevent publication to [Tetra's] customers or competitors" directly by the applicant journalist's source (or that source's source). Unless aware of the identity of the source, Tetra would not be in a position to stop such further dissemination of the contents of the plan, notably by bringing proceedings against him or her for recovery of the missing document, for an injunction against further disclosure by him or her and for compensation for damage.
It also had a legitimate reason as a commercial enterprise in unmasking a disloyal employee or collaborator who might have continuing access to its premises in order to terminate his or her association with the company.
There are undoubtedly relevant reasons. However, as also recognised by the national courts, it will not be sufficient, per se, for a party seeking disclosure of a source to show merely that he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases his or her claim in order to establish the necessity of disclosure. In that connection, the Court would recall that the considerations to be taken into account by the Convention institutions for their review under Article 10(2) tip the balance of competing interests in favour of the interest of democratic society in securing a free press. On the facts of the present case, the Court cannot find that Tetra's interests in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist's source. The Court does not therefore consider that the further purposes served by the disclosure order, when measured against the standards imposed by the Convention, amount to an overriding requirement in the public interest."
90. It seems to me that the approach of the European Court to the question of whether disclosure of a source is `necessary' involves a single exercise in which the Court considers not merely whether, on the facts of the particular case, disclosure of the source is necessary to achieve the legitimate aim but, more significantly, whether the achievement of the legitimate aim on the facts of the instant case is so important that it overrides the public interest in protecting journalistic sources in order to ensure free communication of information to and through the press.
91. Mr Browne submitted that in a case such as this the English Court has to follow a three stage test. First it has to decide whether the interests of justice are engaged. Secondly the Court has to consider as a fact whether disclosure is necessary to achieve the relevant ends of justice. Finally the Court has to weigh, as a matter of discretion, the specific interests of the claimant against the public interest in the protection of journalists' confidential sources. It is in the final stage that the European dimension becomes particularly important.
92. It seems to me that this step by step approach leads to the same destination as the approach adopted by the European Court, and I am content to follow it.
93. I have already indicated why I consider that the object of these proceedings satisfies both the test of being in the interests of justice and constitutes more than one legitimate aim under Article 10. Ashworth succeeds on the first stage. As to the second stage, there is ample authority that in order to demonstrate that disclosure of a source is necessary, a claimant must show that all other reasonable means have been employed unsuccessfully to identify the source. Mr Browne does not suggest that Ashworth falls at this hurdle. He contends, however, that Ashworth has not demonstrated that it is necessary to identify the source in order to remove the risk of further disclosures of confidential material. For the reasons that I have given I reject that submission. Unless and until the source is identified and dismissed there must be a significant risk that his or her venality will lead to the sale of further confidential information.
94. Mr Browne concentrated most of his submissions on the third stage. He contended that Rougier J. had ignored the European dimension. He had not considered whether the Order for disclosure was proportional, having regard to the importance of the freedom of the press.
95. Mr Browne placed particular emphasis on the decision in Goodwin. He submitted that the fact that the European Court, when ostensibly applying the same test as the House of Lords, reached a different result demonstrated that the English Courts were applying a different standard to that of the European Court. Insufficient weight was being given to the vital importance attached by the European Court to press freedom.
96. The argument that Goodwin established a stricter standard than X Ltd v Morgan-Grampian was advanced in Camelot Group PLC v Centaur Communications  QB 124. Schiemann L.J. rejected this submission, holding at p.135 that the different result merely reflected the fact that different Courts can reach different conclusions although applying the same principles to the same facts. Mr Browne submitted that this explanation would not wash, because the margin of appreciation applied by the European Court would have prevented such a result.
97. I consider that Schiemann L.J. correctly identified that the European Court differed from the English courts in its view of the implications that non-disclosure of the source would have for the Plaintiff company. At the same time I am inclined to accept Mr Browne's submission that the decisions of the European Court demonstrate that the freedom of the press has in the past carried greater weight in Strasbourg than it has in the Courts of this country.
98. Notwithstanding this conclusion, I have decided that the Judgment of Rougier J. should be upheld. In Goodwin, at p.137, the Commission expressed the view that only in `exceptional circumstances where vital public or individual interests are at stake' can an Order requiring journalists to disclose their sources be justified.
99. The disclosure of confidential medical records to the press is misconduct which is not merely of concern to the individual establishment in which it occurs. It is an attack on an area of confidentiality which should be safeguarded in any democratic society. The protection of patient information is of vital concern to the National Health Service and, I suspect, to health services throughout Europe. This is an exceptional case. If the Order made by Rougier J. discourages press sources from disclosing similar information in the future, this will be no bad thing. I would dismiss the appeal.
LORD JUSTICE MAY:
100. I agree.
LORD JUSTICE LAWS:
101. I have had the advantage of reading the judgment of my Lord the Master of the Rolls in draft, and I agree that this appeal should be dismissed for all the reasons given by him. I add a few words upon one aspect of the case only, having regard to our duty under the Human Rights Act 1998 to take account of the Strasbourg jurisprudence (s.2) and to act compatibly with the Convention rights (s.6(1)). The Master of the Rolls has referred to the decision of the European Court of Human Rights in Goodwin v UK (1996) 22 EHRR 123. It is in my judgment of the first importance to recognise that the potential vice - the `chilling effect' - of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer's confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a `chilling effect' in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facie (I can do no better than the Latin) contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way. That debate will arise under s.10 in the municipal legislation; it will arise more broadly by reference to Article 10 of the Convention, and in the light of the Strasbourg jurisprudence on Article 10.
102. In the present case I am entirely satisfied, for the reasons given by the Master of the Rolls, that the need to protect press sources must exceptionally give way to the need for the source to be identified.
Appeal Dismissed with costs
Leave to appeal to the House of Lords refused
Appellants to undertake to file petition to House of Lords within 28 days.
Order to be stayed, until determination of petition to House of Lords.
(Order does not form part of approved Judgment)