![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just ÂŁ5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Duffy & Anor v Sunday Newspapers Ltd & Ors [2017] NIQB 71 (19 July 2017) URL: https://www.bailii.org/nie/cases/NIHC/QB/2017/71.html Cite as: [2017] NIQB 71 |
[New search] [View without highlighting] [Printable RTF version] [Help]
[2017] NIQB 71 | Ref: | STE10273 |
Judgment: approved by the Court for handing down | Delivered: | 19/07/2017 |
(subject to editorial corrections)* |
BETWEEN
Plaintiffs:
Defendants:
STEPHENS J
Introduction
(a) an interlocutory injunction to prohibit the fifth defendant from any further disclosure of the contents of covert audio recordings of conversations which are alleged to have been between the plaintiffs and which the prosecution in the criminal proceedings assert establish that the plaintiffs participated in a conspiracy to murder and are members of a proscribed terrorist organisation; and
(b) an order for interrogatories to compel the editor of and a journalist for, the "Sunday World" to reveal the name or at least the status of the source or sources who disclosed to them the contents of the covert audio recordings; and/or
(c) a similar order to reveal the name or at least the status of the source or sources under the principles contained in Norwich Pharmacal Co v Customs and Excise [1973] 2 All ER 943.
Potential stay of these civil proceedings and a reporting restriction order
"Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith."
Section 4(2) then gives a means of protection against prejudice to the administration of justice by providing for postponement of reporting. Section 4(2) provides:
"In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."
Potential consolidation of the three actions
Factual background
The plaintiffs causes of action and the defence of the newspaper defendants and the defence of the Chief Constable
"Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."
The plaintiffs assert that covert recordings could only have been obtained for the specified purpose of a criminal investigation and that to disclose the recordings to the newspaper defendants and for them to disclose the recordings to the public was to process it in a manner incompatible with that purpose.
Schedule 1 Part I paragraph 4 states that:
"Personal data shall be accurate and, where necessary, kept up to date."
Schedule 1 Part I paragraph 7 states that:
"Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."
The plaintiffs assert that the Chief Constable was in breach of this obligation to take measures against unauthorised or unlawful processing of personal data.
"(a) is authorised by or under any enactment to supply it, …"
The plaintiffs assert that the individual from whom the first three defendants obtained the personal data could not be a person authorised by or under any enactment to supply it.
Legal principles in relation to an interlocutory injunction
"Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy s12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of s12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Art 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal." (emphasis added).
In Callaghan v Independent News and Media Limited [2008] NIQB 15 I applied that degree of flexibility stating that "the more serious the consequences the less cogent the evidence needs to be to satisfy that test." There can be a similar degree of flexibility depending on the seriousness of the consequences in other areas of the law see for instance Jordan's Applications [2014] NIQB 11 at paragraph [118].
The application for an interlocutory injunction against the source
(a) Whether the plaintiffs will more likely than not succeed at trial against the source or whether the plaintiffs have established a lesser degree of likelihood
(b) Whether a future threat of further infringement exists
(c) The gravity of the consequences if the risk materialises
(d) Exercise of discretion as to the grant of an interlocutory injunction
The application for disclosure of the name or status of the source
"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."
It is recognised that the applications whether under Order 26, rule 1(2) or under Norwich Pharmacal turn on section 10 of the 1981 Act.
(a) provide information that would lead to a "reasonable chance" that the identity of the source would be revealed, see Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 at page 349G;
(b) provide information that creates a serious risk of compromising the identity of the journalist's sources…" see Sanoma v Uitgevers BV v The Netherlands [2011] EMLR 4 at paragraph 92;
(c) reveal the confidential material provided by the source, see Malik v Manchester Crown Court [2008] EMLR 19 at paragraph 50;
(d) reveal information which is likely to be something that the source would be uncomfortable about having disclosed, see paragraph 51 of Sir Cliff Richard v The British Broadcasting Corporation and another [2017] EWHC 1291 (Ch).
The negative right is not only not to disclose to the parties but also not to disclose to anyone. This means that the "reasonable chance" of identifying the source or the serious risk of compromising the identity of the journalist's sources is to be assessed by reference to the knowledge not only of the parties to the action but also by reference to the knowledge of others such as potential employers of the source.
(a) in the interests of justice or
(b) in the interests of national security or
(c) for the prevention of disorder or crime.
All these gateways in section 10 fall within one or more of the catalogue of legitimate aims in Article 10 ECHR.
"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."
"The phrase "prevention of… crime" carries, to my mind, very different overtones from "prevention of a crime" or even "prevention of crimes." There are frequent articles and programmes in the media on the prevention of crime. The subject on these occasions is discussed from many points of view including the social background in which crime breeds, detection, deterrence, retribution, punishment, rehabilitation and so forth. The prevention of crime in this broad sense is a matter of public and vital interest to any civilised society." (emphasis added)
(a) Whether in the interests of justice
(b) Whether for the prevention of crime
(c) The submissions of the plaintiffs and of the newspaper defendants and of the Chief Constable as to whether disclosure is necessary
(d) Conclusions as to whether disclosure is necessary
Conclusions
(a) whether the reporting restriction order should be continued;
(b) whether the trial of these civil proceedings should be adjourned until after the criminal trial;
(c) as to the costs of these applications; and
(d) as to consolidation of these three actions.