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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Vardy v Rooney [2022] EWHC 1209 (QB) (29 April 2022) URL: https://www.bailii.org/ew/cases/EWHC/QB/2022/1209.html Cite as: [2022] EWHC 1209 (QB) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
REBEKAH VARDY |
Appellant |
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- and - |
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COLEEN ROONEY |
Respondent |
____________________
David Ball (instructed by the CPS) for the Defendant
Mr H. Tomlinson QC and Ms S. Mansoori QC (instructed by Kingsley Napley LLP) appeared on behalf of the Claimant
Mr D. Sherborne and Mr B. Hamer (instructed by Brabners LLP) appeared on behalf of the Defendant
Mr A. Wolanski QC and Ms C. Hamer (instructed by Simons Muirhead Burton LLP) appeared on behalf of the Respondent
Mr D. Price QC (Solicitor-Advocate, David Price Solicitors & Advocates ) appeared on behalf of the Applicants
____________________
Crown Copyright ©
Mrs Justice Steyn:
Introduction
(a) An application by three journalists, Andrew Halls, Simon Boyle and Amy Brookbanks ("the Applicants"), to set aside the witness summonses issued on 7 April 2022 in relation to each of them pursuant to CPR rule 34.3(4) on the grounds that (i) questioning will or is likely to disclose the identity of the source or sources of information contained in the publication for which they are responsible contrary to section 10 of the Contempt of Court Act 1981 ("the 1981 Act") or, alternatively (ii) the claimant does not have (and ought not to be granted) permission to rely on the witness summaries served on 26 April 2022. No application to set aside is made by the fourth journalist, Michael Hamilton.
(b) The claimant's application for permission to rely at trial on the amended witness summaries served on Mr Halls, Ms Brookbanks, Mr Boyle and Mr Hamilton on 26 April 2022.
"Pursuant to s.10 of the Contempt of Court Act 1981 and/or the protection of journalistic sources under Article 10(1) of the European Convention on Human Rights , and pursuant to paragraph 4 of the Order, the Respondent can neither confirm nor deny whether it has documents within its control which fall within the scope of paragraphs 1.1 and 1.2 of the Order."
"Pursuant to s.10 of the Contempt of Court Act 1981 and/or the protection of journalistic sources under Art.10(1) of the European Convention on Human Rights , and pursuant to paragraphs 3 and 4 of the Order:
2.1 the Respondent can neither confirm nor deny whether it has documents within its control which fall within the scope of paragraphs
1.1 and 1.2 of the Order; and
2.2 it is not possible for the respondent to give reasons for withholding any documents or information which it may be withholding."
Protection of sources: the law
"Rights of source protection have a long history in English law, and are also implicit in the right to freedom of expression protected by Article 10 of the Convention . Today, these rights - which I shall call `the Source Protection Rights' - find domestic expression in s.10 of the Contempt of Court Act 1981 ."
"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."
"The scope of the protection is somewhat wider than it might appear on its face. The protection is not confined to sources who provide information that finds its way into the public domain; it embraces those who provide information that is communicated and received with a view to publication: X Ltd. v Morgan-Grampian (Publishers) Ltd. [1991] 1 AC 1, 40 (Lord Bridge) . And the section not only confers a right not to disclose information which identifies a source, it extends to information which may do so. Source identification need not be probable. The protection exists if identification `may' follow, or there is a `reasonable chance' that it will follow: Secretary of State for Defence v Guardian Newspapers Ltd. [1985] 1 AC 339, 349 (Lord Diplock) , Morgan Grampian , 372 (Lord Bridge)."
"1. Everyone has the right to freedom of expression. This right shall include freedom to...receive and impart information and ideas without interference by public authority...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."
"The following principles are now clearly established, and not controversial:-
(1) The onus lies on the applicant to show that disclosure should be ordered.
(2) It must be shown that disclosure is necessary for one of the four legitimate purposes identified in s 10 . It is not enough, for this purpose, to show that the information is relevant to the claim or defence: Maxwell v. Pressdram 310G-H (Parker LJ). It is not even enough to show that the claim or defence cannot be maintained without disclosure: Goodwin v UK [1996] 22 EHRR 123 [39], [45] . The need for the information in order to bring or defend a particular claim is not to be equated with necessity `in the interests of justice'.
(3) In In re An Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660, 704 , Lord Griffiths gave this guidance as to the meaning of the term `necessary' in this context:
'I doubt if it is possible to go further than to say that "necessary" has a meaning that lies somewhere between "indispensable" on the one hand, and "useful" or "expedient" on the other, and to leave it to the judge to decide towards which end of the scale of meaning he will place it on the facts of any particular case. The nearest paraphrase I can suggest is "really needed".'
(4) This requires proof that the interests of justice in the context of the particular case are `so pressing as to require the absolute ban on disclosure to be overridden': Morgan-Grampian 53C (Lord Oliver). In the language of Strasbourg, the disclosure order must correspond to a pressing social need, and must be proportionate. It must be `justified by an overriding requirement in the public interest': Goodwin [39].
(5) Hence, it is necessary for the applicant to satisfy the Court, on the basis of cogent evidence, that the claim or defence to which the disclosure is relevant is sufficiently important to outweigh the private and public interests of source protection, and that disclosure is proportionate.
(6) When making this assessment, the Court must bear in mind that incursions into journalistic confidentiality may have detrimental impacts on persons other than the individual source(s). Disclosure may have a `detrimental impact...on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves': Goodwin [69].
(7) The court must be satisfied that there is, `no reasonable, less invasive, alternative means' of achieving whatever aim is pursued by a source disclosure application: Goodwin ibid. "
"The judgment...in Goodwin v UK [2022] EHRR 123 included this important state or principle at p.143, para.39:
'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.'"
"would lead to discomfort on the part of the source, and therefore some degree of chilling effect in some, if not many, cases." ([51]),
this factor did not
"have anything like the great weight given to the non-disclosure of identity (a true " Goodwin" case)." ([52]).
Confidentiality of the source
"Journalists have a moral obligation to protect confidential sources of information."
"...a journalist's protection under Article 10 cannot automatically be removed by virtue of a source's own conduct. In the Court's view, these considerations are also relevant in a situation where a source comes forward, as in the present case."
"It should be noted that the concept of a confidential source does not feature expressly in the statutory provisions. Nonetheless confidentiality, or perhaps the absence of it, would be a very relevant factor to consider in considering where the interests of justice lie."
And at [28] he held "Nigel is a source for the purposes of the first part of s.10 , and his information is capable of being information for those purposes".
Necessity in the interests of justice
"19. The protection afforded against disclosure of journalistic sources is not, however, absolute. Measures requiring the disclosure of such sources can be justified by `an overriding requirement in the public interest': see paragraph 39 of the judgment of the ECtHR in Goodwin v United Kingdom [1996] 22 EHRR 123 at page 143 . This reflects the test of `necessary in a democratic society' in Article 10(2) ECHR, which requires the court to weigh whether the restriction is proportionate to the legitimate aim pursued ( Goodwin at [40]). The ECtHR went on to explain in the same case that `necessity' must, in any case be `convincingly established'. At paragraph 45 the court said:
'...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.'
...21. In his speech in X Ltd v Morgan-Grampian Lord Bridge emphasised the following:
(a) `...where a judge asks himself the question: "Can I be satisfied that disclosure of the source of this information is necessary to serve this interest?" he has to engage in a balancing exercise', (see 41E);
(b) The starting assumptions in that exercise are (i) the protection of sources is itself a matter of high public importance; (ii) nothing less than necessity will serve to override it, and (iii) that necessity can only arise out of another matter of high public importance, being one of the four matters listed in the section, (see 41E-F);
(c) Whether necessity of disclosure is established is a question of fact, not of discretion, but, like such questions as whether someone has acted reasonably, it is one which requires `the exercise of a discriminating and sometimes difficult value judgment' (see 44C);
(d) The balance is between the weight to be attached to the importance of disclosure in the interests of justice on the one hand and that of protection from disclosure in pursuance of the policy which underlies section 10 on the other hand, (see 44 C-D)."
The impact of the nature of the information
"The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value."
"22. There was some debate before us as to the extent to which the court might vary the weight to be given to the protection of the source dependent on the nature of the information which is sought to be protected. Lord Bridge in Morgan-Grampian said at 44 E-F:'One important factor will be 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...the greater will be the importance of protecting the source.'
23. One must be careful how far one takes that proposition. It is certainly not the case that one ceases to afford protection to the source because the source is providing information which is low down on the public interest spectrum. Read as a whole, I understand Lord Bridge's speech to be saying that one starts with the assumption that the protection of the source is always a matter of high importance, and it becomes yet more difficult to override that public interest in cases where there is a real public interest in the information provided by the source."
"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 Witness Summons applications
The claimant's application for permission
Applicants' application to set aside the summonses
(1) Their professional role.
(2) Their relationship with the claimant.
(3) Any communications which they have with the claimant concerning (a) in Mr Halls' case the Gender Selection Article, (b) in Mr Boyle's case the Flooded Basement Articles, and (c) in Ms Brookbanks' case the Pyjamas Article.
(1) Mr Halls was responsible for the Car Crash Article, the Soho House Article and the Gender Selection Article referred to in the witness summary dated 25 March 2022. Questioning in relation to his witness summaries will or is likely to disclose the identity of the source or sources of each article. In addition, he is responsible for the Flooded Basement Articles referred to in the witness summary for Mr Boyle and equivalent questioning will or is likely to disclose the identity of the source or sources.
(2) Mr Boyle is responsible for the Flooded Basement Articles and he provided information for the Marriage Article. Questioning in relation to his witness summaries will or is likely to disclose the identity of the source or sources.
(3) Ms Brookbanks is responsible for the Pyjamas Article. Questioning in relation to her witness summaries will or is likely to disclose the identity of the source or sources.
The defendant's application to compel disclosure by Ngn
"...although the Judge drew back from treating the case as one in which X had consented to the disclosure of information that he was a police informer, the scope for protecting him was limited by the fact that both sides knew who he was and that the claimant believed, rightly or wrongly, that he was an informer."
Mr Sherborne submits that the same point applies here because the defendant believes the claimant to be the source thus limiting the scope for protecting her as a source.
Conclusion
(1) The claimant's application for permission to rely on the amended witness summary of Mr Hamilton is granted;
(2) The witness summonses in respect of Mr Halls, Mr Boyle and Ms Brookbanks are set aside; and
(3) The defendant's application for an order for disclosure and inspection against NGN is refused.