HOUSE OF LORDS
BRITISH STEEL CORPORATION, RESPONDENTS
GRANADA TELEVISION LTD., APPELLANTS
Annotated authoritative version at:  A.C. 1096
COUNSEL (Court of Appeal): Leonard Hoffmann Q.C. and David Kitchin for the plaintiffs, B.S.C.
Alexander Irvine Q.C., J. E. Camp and Patrick Moloney for the defendants, Granada.
COUNSEL (House of Lords): Alexander Irvine Q.C. and Patrick Moloney for the defendants, Granada.
Leonard Hoffmann Q.C. and David Kitchin for the plaintiffs. B.S.C.
SOLICITORS: Clifford-Turner; Goodman, Derrick & Co.
JUDGES (Court of Appeal): Sir Robert Megarry V.-C., Lord Denning M.R. Templeman and Watkins L.JJ.
JUDGES (House of Lords): Lord Wilberforce, Viscount Dilhorne, Lord Salmon Lord Fraser of Tullybelton and Lord Russell of Killowen
DATES: 1980 March 11, 12, 13, 14; April 2
1980 April 18, 21, 22, 23, 24, 25, 28; May 7
1980 July 14, 15, 16, 17, 21, 22, 30; Nov. 7
SIR ROBERT MEGARRY V.-C. The essential facts in this motion are relatively simple, though I cannot say the same for the law. The plaintiffs, British Steel Corporation (which I shall call B.S.C.), seek an order that the defendants, Granada Television Ltd. (which I shall call Granada), should forthwith make and serve on B.S.C.s solicitors an affidavit setting forth the names of all persons responsible for supplying Granada with documents owned by B.S.C., or any copies thereof, and the names of all persons who have offered to supply Granada with such documents. The motion arises out of a television programme transmitted by Granada on Monday, February 4, 1980, in the World in Action series produced by Granada. That programme was directed towards the strike of steel workers which had existed since the beginning of the year, mainly in relation to the pay of workers employed by B.S.C. The programme consisted of a variety of videotaped material, including a number of quotations from statements made by the Secretary of State for Industry Sir Keith Joseph, and others, brief interviews with a trade union official, a picket, and a member of a strike committee, a number of comments by the reporter conducting the programme, and finally an interview with Sir Charles Villiers, the chairman of B.S.C., by the reporter. Many points were mentioned, but the main thrust of the programme seemed to be to advance the view that what was responsible for B.S.C.s difficulties was not just the low productivity of the steel workers to which B.S.C. had referred, but also poor management by those responsible for running B.S.C., and intervention by the government. That, of course, did not appear to be a view to which Sir Charles subscribed.
During the programme (a recording of which was, by agreement, shown to me in court), the documents obtained from B.S.C. played a substantial part. The programme was entitled The Steel Papers; there were various references to the documents; and there were a number of views of some of them. Both by sound and sight it was made plain that the documents were secret documents, not intended for publication; there were a number of shots showing documents with Secret stamped on them in large letters. Extensive quotations from a number of the documents were read out. A transcript of the programme has been put in evidence, and this shows that not far short of one half of the programme consisted of quotations from these documents, with the reporters connective comments; the rest of the programme was split between rather less than a quarter for the opening quotations that were in the public domain, and nearly a third for the interview with Sir Charles. [*1104]
It is common ground that B.S.C. never consented to the documents being given to Granada or being used by them in any way. On February 5, the day after the programme was broadcast, B.S.C. sent Granada a telex stating that the documents were highly confidential, and that publication of them was a breach of confidence and a breach of B.S.C.s copyright in them. B.S.C. demanded undertakings in wide terms against any publication or reproduction of the documents, and also that Granada would return the documents forthwith to B.S.C. Granada would not give these undertakings, and so on February 6, B.S.C. issued the writ and a notice of motion; and on the same day Oliver J. granted an ex parte injunction restraining the publication or reproduction of the documents. After correspondence between solicitors, the documents were delivered to B.S.C.s solicitors on February 28. On examination, it was discovered that many of the documents had been mutilated by cutting off corners on which numerals probably appeared, or by tearing or cutting off parts of documents on which manuscript comments may have appeared, or by otherwise making it difficult or impossible to identify which particular copy of a duplicated document it was that had come into Granadas possession. I have inspected some samples of the two large boxfuls of papers which were thus returned to B.S.C.; and some of them are documents which appear to have been ripped in two and then repaired with transparent adhesive tape. B.S.C.s request to be informed of the identity of the person who supplied these documents to Granada was not complied with.
It was in these circumstances that on March 6 B.S.C. issued the notice of motion that is now before me, and amended the writ to match. As I have mentioned, the only relief claimed is for an affidavit setting out the names of all persons responsible for supplying Granada with B.S.C.s documents or any copies of them, or who offered to supply them. The basis of the application is the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133. Put shortly, the decision is to the effect that a person who becomes involved in the tortious acts of others, even if innocently, is under a duty to assist a person who is injured by those acts by giving him full information by way of discovery and disclosure of the identity of the tortfeasor. Such an action may be brought even though the plaintiff has no other cause of action, and seeks no other relief, though it cannot be brought against someone who is not involved in the wrongdoing beyond being a mere witness or having some relevant document in his possession. The action is a descendant of the old bill of discovery in Chancery. Under the auxiliary jurisdiction, equity used to aid litigants in the courts of law, as well as litigants in equity, by compelling discovery; the courts of law had no means of doing this. But in addition to this process, which has now long been part of the ordinary process of litigation, there was a procedure whereby a would-be plaintiff could bring a bill of discovery in equity in order to find out who was the proper person to bring his action against; and it is this process which led to the Norwich Pharmacal case.
In that case, the owners of a patent for a chemical compound found that their patent was being infringed by illicit importations of the compound which had been manufactured abroad. The owners sued the Customs and Excise Commissioners for discovery of the documents which would show [*1105] who were the importers, and the commissioners not only disputed the plaintiffs rights to bring such an action, but also contended that public policy precluded the making of the order. The House of Lords rejected these defences, and held that the action should succeed.
Now in the motion before me, there was no real issue on the Norwich Pharmacal case. On behalf of Granada, Mr. Irvine did not dispute that the documents had reached Granada as a result of wrongful acts by a person or persons unknown to B.S.C., nor did he suggest that Granada had received them in ignorance of any wrongdoing. He accepted the inevitable conclusion that Granada had known very well that they were receiving and using documents in contravention of B.S.C.s rights. The indorsement on the writ bases B.S.C.s claim on breach of confidence, breach of copyright and conversion; and it seems plain that these claims are well founded. I do not think that this conclusion is affected by the statement in the affidavit of Mr. Boulton, the Head of Current Affairs for Granada, that Granada were firmly of the view that they received the documents in circumstances not involving any dishonesty or criminal conduct. Mr. Irvine did stress, however, that Granada did not solicit the documents, or make any agreement about them, and that no money or benefit in kind was sought or paid or given in return for the documents; and I see no reason to question Mr. Boultons assertion that this was the case. The documents, he said, were volunteered by a source with a keen sense of indignation about the dealings between B.S.C. and the government before and during the strike. He also said that a firm promise was made to the source that no step would be taken that might reveal or risk the disclosure of the sources identity.
It is difficult to see what meaning is to be ascribed to the word honesty if it is to be applied to the conduct of an employee who has access to his employers confidences and is receiving his pay from them, and yet at the same time is secretly removing highly confidential documents from his employers and passing them to third parties so as to enable them to criticise the employers in public. It would be more frank to describe this as dishonesty in what is claimed to be a worthy cause. However, I do not think that I need go into this further. Nor do I need to discuss in any detail the conduct of Granada in receiving the documents, making use of them, and then, after some delay, returning them to B.S.C. in a mutilated state. Mr. Irvine prudently refrained from advancing any contention that Granada had been entitled to do what they did; and he accepted that at the lowest the documents must have been obtained in breach of confidence, and said that there might well be a foundation for bringing criminal charges. This, of course, sharply distinguishes Granada from the Customs and Excise Commissioners in the Norwich Pharmacal case, for the commissioners involvement with the wrongdoers there was entirely innocent. All Mr. Irvines efforts were directed towards establishing that Granada should not be ordered to disclose to B.S.C. the names of those who supplied Granada with the documents or offered to supply them. In this, he relied on two main propositions. The first and most complex was that the court had a discretion to refuse to order disclosure where disclosure would be in breach of some ethical or social value, and that the confidential relationship between newspapers or other media of information and their sources of [*1106] information was an ethical or social value which the court ought to protect by refusing to order any disclosure. The second proposition was simply that Granada were protected against the demand for disclosure by the privilege against self-crimination. I propose to consider this second point first.
The privilege against self-crimination did not emerge as a possible defence until Mr. Boultons affidavit, sworn the day before the hearing began, had put forward the material on which it was based. He said that there is a real risk that if Granada were to identify its source, then, with B.S.C. in its present mood, criminal proceedings might result against both the source and Granada. No contention that this privilege protected Granada appears to have been advanced previously in the interchanges between solicitors or otherwise. This plea committed Mr. Irvine to a somewhat delicate balancing act. The words I have just quoted come from a sentence which began with the assertion by Mr. Boulton that I previously mentioned, stating that Granada were firmly of the view that they had received the documents in circumstances not involving any dishonesty or criminal conduct. Despite that, Mr. Irvine had to establish that Granada had reasonable grounds for believing, and did believe, that if they disclosed the source of the documents, there would be a real and appreciable danger that in the ordinary course of things, and under the ordinary operation of law, they would be prosecuted for some criminal offence: see Reg. v. Boyes (1861) 1 B. & S. 311 at 330, approved in Ex parte Reynolds (1882) 20 Ch.D. 294. The latter case makes it plain that the privilege against self-crimination can be invoked only by someone who does so in good faith for his own protection, and not for some ulterior purpose: it is a privilege against self-crimination, and not a privilege against the incrimination of others, or for the protection of them or their property. Thus in Reg. v. Armagh Justices (1883) 18 I.L.T.R. 2, a woman who refused to testify that a publican had sold her a naggin of whiskey out of hours was held not to have been entitled to do so, the reason, I think, being that her refusal was made to protect not herself but the publican.
Mr. Irvine also faced the problem of identifying the crimes for which Granada feared prosecution if they revealed their sources of information. What was it that they feared, despite their firm view of their own innocence? A prosecution for handling stolen goods or any other offence under the Theft Act 1968 did not help Granada much, as by section 31 the privilege does not apply to civil proceedings of the nature mentioned in the section (including the recovery of property), though any statements or admissions made in consequence cannot be used in evidence in a prosecution: I put it shortly. So Mr. Irvine addressed himself to conspiracy to steal and conspiracy to defraud. He relied on sections 1 (1), 5 (1), of the Criminal Law Act 1977 as showing that apart from conspiracy to defraud, conspiracy at common law had been replaced by the offence of conspiracy under that Act, so that conspiracy to steal could not come within the Theft Act 1968, and so escaped section 31. The result was the same for conspiracy to defraud, he said, for although it still existed at common law, it too was not an offence within the Theft Act 1968. Mr. Irvine also cited Reg. v. Scott  A.C. 819 as showing that it was an [*1107] offence to conspire to contravene section 21 of the Copyright Act 1956. He further relied on Rank Film Distributors Ltd. v. Video Information Centre, a decision of the Court of Appeal on February 15 last, a transcript of which was put before me, as well as a report of the case in The Times, February 16, 1980 (now reported  3 W.L.R. 487).
The whole essence of the Rank case was copyright. The case against the defendants was that they were making and selling illicit copies of copyright films, transposed on to magnetic tape. An Anton Piller order was made ex parte against them, and this included provisions requiring them to answer interrogatories and give discovery of documents which would disclose the names of those who supplied them with the films, and also those to whom the defendants supplied the illicit copies. Over the dissent of Lord Denning M.R. the majority held that these provisions of the order should be deleted from it because, if the information was given, it would tend to criminate the defendants of an offence under section 21 of the Copyright Act 1956. The offences thus created are summary offences punishable on a first conviction with a fine not exceeding £50, a sum which must be trivial in relation to the huge profits which appear to be obtainable from this copying. For the illicit copier, section 21 is indeed a blessing, a blessing which must be envied by those who infringe patents or trade marks and cannot claim any corresponding immunity from disclosure under an Anton Piller order because there is nothing to make the infringements criminal. However, in the Rank case the privilege was also claimed in relation to conspiracy to contravene section 21 as well as conspiracy to defraud, and it may be that at any rate some of those who infringe patents or trade marks will find some comfort under the latter head. I forbear to explore this last point.
The Rank case, however, did not long stand alone; for within a fortnight it was considered by another Division of the Court of Appeal in Ocli Optical Coatings Ltd. v. Fox, February 28, 1980, a transcript of which was put before me (now reported sub nom. Ocli Optical Coatings Ltd. v. Spectron. Optical Coatings Ltd.  F.S.R. 227). This too was a case of an Anton Piller order, made in relation to the manufacture and sale of vacuum-deposited thin film coatings used for optical and electrical purposes, and particularly in relation to computers. The contention was that the defendant company was using confidential information of the plaintiffs, obtained and disclosed in breach of confidence by other defendants. At first instance, the judge applied the Rank case and excluded from the order those parts which required the defendants to disclose the names and addresses of the persons who had supplied the defendants with copies of documents or information derived from the plaintiffs intellectual property, as well as the names of those to whom these had been supplied. The same was done in relation to an application for an order requiring the disclosure of the whereabouts of documents and other articles infringing the plaintiffs rights. However, on appeal it was held that if any criminal proceedings were taken, they would almost certainly be proceedings under the Theft Act 1968, and not under section 21 of the Copyright Act 1956. On the footing that there was no real or appreciable risk for apprehending prosecution under section 21, the court accordingly restored the portions of the Anton Piller order [*1108] which the judge had omitted, and so required the defendants to make disclosure. In the case before me, it has not been contended that there is any apprehension of peril under section 21 which would arise from Granada revealing the source of the documents; any case under the section exists without this. But the Ocli case is important, I think, in making it clear that in this field the court will look at the realities and disregard the theoretical.
Mr. Irvine also contended that the privilege entitled a person to refuse to provide any information which might be used as a step towards obtaining any evidence against him relating to the commission of an offence. For this he relied on Rex v. Slaney (1832) 5 C. & P. 213. I do not think that that case supports so wide a proposition. True, it makes it plain that the privilege is not confined to questions which will in fact criminate the witness, but extends to those which tend to criminate him; for otherwise the questions might go from one thing to another, without any direct crimination, and yet enough would be elicited to found a charge against him. In that case, concerning criminal libels, the privilege did not prevent the witness from being required to say whether he knew who had written a defamatory document; but it did allow him to refuse to say who it was, since it might be himself. This seems to me to fall far short of Mr. Irvines wide proposition. It appears to me to be one thing to say To answer this question would tend to incriminate me, and another to say To answer this question might lead to a train of inquiry which, if pursued, might lead to some evidence which, if adduced, might tend to criminate me. If the privilege extended that far, a witness who was guilty of a gang affray which had nothing to do with the case in which he is testifying could refuse to say who any of his friends were, since to e identify them might lead to those who could give evidence against him, if he were charged with making an affray.
However that may be, in this case I cannot see any reality in the fear of a charge of conspiracy. There is not the slightest evidence of any conspiracy. Indeed, Granadas explicit evidence is that the documents were volunteered, and reached them without any prior agreement or solicitation by them. If a question is put to a witness which itself indicates some jeopardy to him if he answers it one way, then that will normally support the privilege. But if there is nothing in the question or anything else to indicate anything save an innocent question, the court must be satisfied from some other source of the tendency to criminate: see In re Genese, Ex parte Gilbert (1886) 3 Morr. 223, 226, 227, per Lord Esher M.R. He can claim the privilege if he
states circumstances, consistent on the face of them with the existence of the peril alleged, and which also render it extremely probable: see Short v. Mercier (1851) 3 Mac. & G. 205, 217, per Lord Truro L.C.
The words extremely probable relate to the existence of the risk, and not to whether a prosecution will in fact be brought; for the latter, all that is required is an appreciable chance: see In re Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 (No. 2)  A.C. 547, 581, per Shaw L.J.; and see at p. 574 per Lord Denning M.R., approved at p. 627, per Viscount Dilhorne. What is there [*1109] in this case to show that there is any real risk of Granada being liable to be prosecuted for any offence save under the Theft Act 1968, which for this purpose Mr. Irvine accepted was of no avail to Granada? Mr. Irvine was reduced to contending that if the identity of the person who delivered the documents was disclosed, that person might falsely allege against Granada that there had been a prior conspiracy. In this world, I suppose, almost anything might happen: but it seems quite impossible to regard such a wild and speculative surmise as being a fear or apprehension with any substance in it. The whole edifice which Mr. Irvine laboured to erect seemed to me to rest on wholly exiguous foundations of evidence, and to be a last-minute make-weight devoid of reality. Accordingly I reject this contention.
I turn to the second main head, that of Granadas claim that the court has a discretionary power to refuse to order disclosure, and that this ought to be exercised in this case. Mr. Irvine put before me at the outset of his address eleven propositions. At my request, he helpfully reduced these to typescript on Day 2 in a slightly amended form, which on Day 3 he subjected to some small but significant further amendments. At the heart of these propositions was the contention that it was in the public interest that the media of information, whether newspapers, television or otherwise, should normally not be forced to disclose their sources of information, for otherwise much of the information would cease to flow to them, and they would be disabled from doing their beneficial work.
Before I turn to the manifold authorities that were put before me, I should mention that I attempted to persuade Mr. Irvine to identify those who were entitled to the benefit of this special position. On the footing that it extends to newspapers and television companies and their staff does it apply to free-lance journalists or free-lance television reporters, obtaining information in the hope of persuading a newspaper or television company to buy the results? Does it apply to an author gathering material for a book for which he hopes to find a publisher? Does it apply to a crank or a busybody preparing a pamphlet that he will publish at his own expense? What of manufacturers or advertising agents engaged in market research? Does it apply even to newspapers and television companies and their staffs if the material is being gathered for some article or programme which is intended merely to entertain and not to expose some evil or wrong? I asked these questions because it seemed to me that the answers might help in identifying the basis on which the alleged exemption rests. Is it, indeed, an exemption for newspapers and television companies and members of their staffs, whatever they do, or is it an exemption which depends upon the person concerned being engaged in some investigations in what he believes to be the public good? If one takes the cant phrase investigative journalism, does the emphasis lie on the first word or the second?
My endeavours were unsuccessful, in that for the most part Mr. Irvine could not be tempted to give me any specific answers to my questions; in the main he rested on the authorities that he put before me. However, it was plain that the general thrust of his contentions was that the court had to balance the public interests involved both for and against disclosure. On this footing, I think that the basic answer to my questions might be a [*1110] contention that information that is used with a serious purpose has a greater weight in the scales than information that is used for other purposes or not at all. There would thus be a sliding scale, as it were, and so there would be no need to lay down categories of persons or purposes.
I think that I should take the matter by stages. First, there has been no contention that the exemption has been recognised as amounting to a privilege which, as of right, entitles a person to refuse to testify or disclose matters, such as the privilege which enables a client to exclude confidences between him and his solicitor and counsel. That, I think, clearly appears from two cases arising out of the inquiry in 1962 and 1963, usually known as the Vassall Inquiry, namely, Attorney-General v. Clough  1 Q.B. 773 and Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477: see especially the latter case at p. 489, per Lord Denning M.R. In these cases, journalists giving evidence were held to have no immunity from answering proper questions which required them to disclose their sources. The whole question is not one of rights, but of how far the court has a discretion, and of the factors that should be weighed in exercising that discretion.
Second, in some respects newspapers were for a long while undoubtedly treated as being in a special position as regards being forced to disclose their sources of information. A practice grew up that in libel cases the courts would normally not compel a newspaper, prior to the trial of the action, to disclose the source of its information. The rule which was applied to interrogatories in Hennessy v. Wright (No. 2) (1888) 24 Q.B.D. 445n. was applied to discovery of documents in Hope v. Brash  2 Q.B. 188, to a trade periodical in Plymouth Mutual Co-operative and Industrial Society Ltd. v. Traders Publishing Association Ltd.  1 K.B. 403, to an action for malicious prosecution in Maass v. Gas Light and Coke Co.  2 K.B. 543, and, a little surprisingly, to a defendant who was an M.P. in Adam v. Fisher (1914) 30 T.L.R. 288; but it was withheld from the writer of a letter in a newspaper as regards the source of his information in South Suburban Co-operative Society Ltd. v. Orum  2 K.B. 690: see also Lyle-Samuel v. Odhams Ltd.  1 K.B. 135.
Running through the cases there are two strands of reasoning for the rule, one that the process of discovery ought not to be used for the ulterior purpose of enabling the plaintiff to discover the name of someone against whom he could bring another action, and the other that there was some public interest in not requiring defendants in the position of newpapers to disclose their sources of information. At the same time, it is abundantly clear that the matter was one of discretion: disclosure should not be compelled without sufficient cause. A further stage was reached when in 1949 the rule which now stands as R.S.C., Ord. 82, r. 6 was introduced. This applies to all defendants in defamation, whether newspapers or otherwise, and it lays down a flat prohibition and is not merely discretionary; yet it is confined to interrogatories, and to the defences of fair comment or publication on a privileged occasion. Presumably the extension to everybody, in a strengthened form, of part of the rule which applied to newspapers has not taken away the benefits of the rest of the rule from newspapers. It should be observed, however, that the rule is one which was applied at the interlocutory stage, and not at the trial. I [*1111] think that it is important to distinguish between, first, the interlocutory stage; second, evidence at the trial; and, third, the relief claimed in the action. To this I shall have to return.
With that, I come to Mr. Irvines eleven propositions. I think that they may be summarised in this way. His first two propositions are at the heart of his argument, and I will set them out verbatim in a moment. The other nine are, I think, mainly reasons for supporting the first two propositions, or amplifications of particular parts of those propositions; and although of course I have considered them and given them, I hope, due weight, I shall not reproduce them here. The first two propositions are as follows: the words in square brackets in the first were added by Mr. Irvine on Day 3 by way of amendment, and I have divided the second into two sub-propositions for ease of reference.
1. There is a recognised discretion in the courts to exclude relevant evidence, or to abstain from requiring the disclosure of evidence (by way of discovery or interrogatories), which should be exercised when considerations of [a recognised] public interest and policy, in the circumstances of the particular case, outweigh the interests of the party desiring the evidence to be given or disclosed.
2 (1). The categories of public interest are not closed; and (2) the courts will refuse to order disclosure where (a) disclosure would be in breach of some ethical or social value and (b) on balance, that interest is best served by refusing to order disclosure.
The most fundamental question lies in the first part of the first proposition. I say nothing about criminal cases; but is it true that in civil cases the court has a recognised discretion to exclude relevant evidence? I have no doubt whatever that a judge may and sometimes should discourage the adduction of evidence that he considers to be unfair or objectionable in some way; but does he have the power, as a matter of law, to refuse to admit it? The question probably does not arise often; counsel, knowing that the decision of the case lies with the judge in all save the few cases that are heard with a jury, will usually have the forensic sense not to press a judge with evidence which the judge finds objectionable. Where there is a jury, there is some Australian authority which suggests that the judge cannot exclude admissible evidence, though he may well warn the jury about it in suitable terms: see Manenti v. Melbourne and Metropolitan Tramways Board  V.L.R. 115; and again counsel may exercise forensic prudence. Lord Sumner and at least some members of a strong Board of the Judicial Committee seem to have thought that relevant evidence which a judge could have excluded in a criminal case could not be excluded in a civil case: Ibrahim v. The King  A.C. 599, 610.
As against that, there is the statement in para. 1 of the Sixteenth Report of the Law Reform Committee on Privilege in Civil Proceedings (1967) (Cmnd. 3472). This refers to the law restricting the categories of privilege to the minimum, but according to the judge a wide discretion to permit a witness, whether a party to the proceedings or not, to refuse to disclose information where disclosure would be a breach of some ethical or social value and non-disclosure would be unlikely to result in serious injustice one which was applied at the interlocutory stage, and not at the trial. [*1112] discretion, Attorney-General v. Clough  1 Q.B. 773 and Attorney-General v. Mulholland  2 Q.B. 477 are cited; and at p. 492 of the latter case Donovan L.J. undoubtedly expressed the view that the judge has an ultimate discretion not to order a witness to answer a question if to do so would do more harm than good. Danckwerts L.J. simply expressed his agreement; and this may have related to what Donovan L.J. said on this point and not merely to the main decision, which was that the journalists did not have any privilege which allowed them to refuse to answer proper questions. However, in In re Buchanan (1964) 65 S.R.(N.S.W.) 9, the Supreme Court of New South Wales, sitting in banco, treated this as relating only to the relevance and propriety of the question, so that if the judges conclusion is that the question is both relevant and proper, he has no further discretion to excuse the witness from answering. In other words, the question is not one of balancing a relevant and proper question against the strength of the objections to answering it, but one of merely scrutinising the question for relevance and propriety.
The proposition of the Law Reform Committee was much discussed in what is the most important authority on the subject, D. v. National Society for the Prevention of Cruelty to Children  A.C. 171. The issue there arose in an action against the N.S.P.C.C., as I shall call it, in which the plaintiff claimed damages against the N.S.P.C.C. and also disclosure of their documents which would reveal the identity of the informant who had made unfounded complaints against her. The main issue was whether the rule of public policy which excludes evidence of the sources of information of the police (save where required to establish innocence in a criminal trial) should be extended to the sources of information of the N.S.P.C.C., a body which has statutory authority to bring proceedings concerning the welfare of children, in cases of alleged neglect or ill-treatment of children. All save Lord Edmund-Davies, who rested his decision on discretion, held that the immunity from disclosure should be extended in this way.
On the proposition in the Law Reform Committees report that I have mentioned, Lord Hailsham of St. Marylebone (at p. 227) accepted that the proposition did represent the practice that existed in 1967, though that was different from the position some 35 years earlier; and Lord Kilbrandon (at p. 242) simply expressed his entire agreement with Lord Hailshams reasoning and conclusion. Lord Simon of Glaisdale, on the other hand, was critical of the proposition, and took the view that although the judge could exert considerable moral authority to dissuade counsel from pressing a question, if it comes to the forensic crunch it must be law, not discretion, which is in command: p. 239. As I understand his speech, he did not accept that the judge has a general discretionary power to permit a witness to refuse to answer a proper question. Lord Edmund-Davies also had misgivings about Lord Hailshams treatment of the proposition of the Law Reform Committee (p. 243), though in the end he formulated a proposition (at p. 245) which had a number of resemblances to the committees proposition, and also certain differences. Put shortly, Lord Edmund-Davies considered that the court had a discretion to uphold a refusal to disclose relevant evidence where a confidential relationship exists where disclosure would be in breach of some ethical or social value involving the public interest, and where on balance the public interest would be [*1113] better served by excluding such evidence. Lord Diplock, who delivered the leading speech, and was a signatory of the report of the Law Reform Committee, did not mention the report.
In that state of affairs, the only conclusion that I can reach is that, on balance, the prevailing view is that in civil cases the judge does have some discretionary power to exclude evidence that would otherwise be admissible. I say that with some hesitation, as I too was a signatory of the Law Reform Committees report; and preconceptions may distort judgment. One thing that clearly emerges from the N.S.P.C.C. case  A.C. 171 is the reaffirmation of the view that a mere promise of confidentiality will not, without more, protect a communication from disclosure (see also Science Research Council v. Nasse  A.C. 1028). What matters is the public interest, and something must be found to countervail the strong public interest of getting the truth out in the administration of justice. Yet although not enough per se, a promise of confidence may strongly support a countervailing public interest. Another thing that emerges is that the categories of public interest are not closed. That is involved in the decision itself, in that the protection long accorded to police informers was extended by analogy to informers of the N.S.P.C.C.; but there are also express statements to that effect, for example, at p. 230.
A third matter that emerges from the N.S.P.C.C. case is the rejection of what was called the broad submission in favour of the narrow submission. The broad submission may be summarised as being to the effect that if there is a claim that the public interest would be served by withholding disclosure, the duty of the court is to weigh the alleged public interest against the public interest in uncovering the truth in the process of litigation, and to rule according to the way the balance tilts. This was unanimously rejected. Lord Diplocks rejection may have been mainly or wholly based on the unwisdom of deciding a case on a broad principle when a narrow principle suffices (see at p. 220), but I think the other members of the House rejected it on its merits, or perhaps I should say its demerits: see at pp. 225, 240, 242, 243. I need not elaborate on Lord Hailshams series of questions at p. 225 which expose the problems if all courts were committed to the general process of weighing up the conflicting claims over an undefined field in each individual case.
In the present case, the importance of this lies in the fact that in its original form, Mr. Irvines first proposition was in substance a re-statement of the broad submission that the N.S.P.C.C. case had rejected. His amendment, inserting the words a recognised in front of public interest, was needed to carry him past the barrier of the N.S.P.C.C. case. This, however, as Mr. Hoffmann pointed out on behalf of B.S.C., then wrought havoc on paragraph 2 of the second proposition; for this, instead of basing itself on a recognised public interest, sought to invoke broad and indefinite concepts of ethical and social values. Throughout this case, as well as other cases, there is always the difficulty of the protean meaning of the phrase public interest when used by itself. I use it, of course, not in the sense of something which catches the interest of the public out of curiosity or amusement or astonishment, but in the sense of something which is of serious concern and benefit to the public. The phrase recognised public interest thus refers to a public interest in the latter sense which has [*1114] become recognised as such. Has there arisen a recognised public interest in the press and television companies not being obliged to disclose their sources of information, and, if not, ought such an interest now to be recognised?
Before I attempt to answer that question, there is another factor that I should mention, one which did not appear in Mr. Irvines eleven propositions, and one about which little was said in argument; and it distinguishes this case from many of those cited. That is that this is a case in which the relief sought appears to be equitable relief, descended from the bill of discovery in equity; and the general rule is that equitable relief is discretionary. In the Norwich Pharmacal case  A.C. 133, I think that it was recognised that the relief was discretionary (see at pp. 176, 182, 190, 199 and 206), though I have not found any explicit ascription of this to the equitable nature of the remedy. Even if one says that ordinary discovery as part of the process of litigation has shed its equitable nature because it is now regulated by rules of court, that leaves untouched an action in which the substantive relief sought is or includes an order disclosing the names of certain persons. Such an action seems to me to be just as much an action for equitable relief as an action for specific performance or an injunction. If that is right, then the significance is that the court is called upon to exercise the wide general jurisdiction to consider all the relevant factors of the case in deciding whether the discretion ought to be exercised in favour of granting the relief. That question would not he the narrower one of weighing matters of public interest or policy.
I feel some hesitation on this matter, for two reasons. First, though touched on in argument, it was not explored in any detail; and I hesitated to incur the delay involved in restoring the case for further argument, especially when the press of other work had made it impossible for me to prepare this judgment as soon as I had hoped. Second, as I have already mentioned, part of the plaintiffs claim in the N.S.P.C.C. case  A.C. 171, as set out in her statement of claim, was a direct claim for discovery which appears to be of the Norwich Pharmacal type. The case arose at the interlocutory stage, on whether there should be what may be called orthodox discovery; but, as Lord Diplock pointed out at p. 219, the judges reasoning at the interlocutory stage would also rule out discovery as part of the substantive relief. Yet despite this linkage between the interlocutory order and the final relief, no question appears to have arisen as to the discretionary nature of the substantive remedy of discovery. In those circumstances I think that I should consider the question of discretion in both its narrower and its wider aspects.
The first question, I think, is whether there is a recognised public interest in the press not being required to disclose their sources of information. For brevity, I shall in general speak only of the press, on the footing that what applies to the press applies also to those who provide the public with television programmes: see, for example, Isbey v. New Zealand Broadcasting Corporation (No. 2)  2 N.Z.L.R. 237; Brill v. Television Service One  1 N.Z.L.R. 683. Where it is desirable to do so, I shall mention television separately. There is no difficulty in accepting that much information is given to the press under a pledge of confidentiality, and that some sources of that information would dry up if that confidentiality [*1115] were not to be preserved. Equally I would accept that in many cases the press has exposed wrongdoings which otherwise might have remained concealed for a long time or for ever. Furthermore, I can see no possible grounds for refusing to accept the proposition that it is in the public interest to preserve the liberty of the press. That liberty does not, of course, mean that the press is free to do with impunity whatever it chooses; but, speaking generally, it does mean that the press is free to publish what it wishes without prior censorship, and that what it publishes is then subject only to the ordinary law of the land. I also accept that it is in the interests of the public that there should be a regular supply of reliable news.
Given all that, has it been established that there is a recognised public interest in the press being entitled to refuse to disclose the source of its information; and, if not, ought there to be? Mr. Irvine contended that the first of these propositions was established by the special position that had long been accorded to the press in defamation at the interlocutory stage, by Attorney-General v. Clough  1 Q.B. 773 and Attorney-General v. Mulholland  2 Q.B. 477, and by a dictum of Lord Scarman in Express Newspapers Ltd. v. McShane  A.C. 672, 693.
I shall turn to the Express Newspapers case in due course; but as for the other authorities, I do not think that they carry the point. The inter locutory stage, directed to shaping the proceedings for the trial, certainly does not determine the law to be applied at the trial: see Attorney-General v. Clough at p. 790, per Lord Parker C.J. At this stage, interrogatories are very much a matter of discretion for the master or judge; and, in exercising this discretion, the master or judge is entitled to take the view that, as in the public interest a rule of practice has grown up against requiring the interlocutory disclosure of a newspapers sources, the interrogatories should be disallowed: see Lawson v. Odhams Press Ltd.  1 K.B. 129, especially at p. 136; and see Georgius v. Oxford University Press  1 K.B. 729. But that is very far from saying that the courts have held that there is a recognised public interest to this effect at the trial. In Attorney-General v. Clough  1 Q.B. 773, 792, Lord Parker C.J., after rejecting the contention that the confidential relationship between the press and its informants had crystallised into a class of privilege known to the law, went on to say that he conceived it to remain open to the court to say that in the special circumstances of a particular case public policy did demand that the journalist should be immune. That, however, falls far short of saying that there is a recognised public interest and policy for the press; indeed, it tends to negate any such recognition by emphasising the special circumstances of a particular case.
The dictum of Lord Scarman in Express Newspapers Ltd. v. McShane  A.C. 672, even taken in isolation, offered little enough comfort to Mr. Irvine. Lord Scarman said, at p. 693:
The question is: if industrial action poses a substantial threat to a defined public interest, e.g. the freedom of the press and the right of the public to be informed, is the threat a factor which the court should properly put into the balance together with the other relevant factors when asked to grant an interlocutory injunction restraining the industrial action? [*1116]
Taken in its context, the dictum seems to me to help Mr. Irvine not at all. The subject matter of the case was the ambit of the famous statutory formula in furtherance of a trade dispute as conferring immunity from liability in tort in a case of secondary blacking. The reference to the freedom of the press and the right of the public to be informed as a defined public interest had nothing to do with any immunity of the press from disclosing its sources, but concerned the ability of the press to publish newspapers, and the ability of the public to buy them when published and so obtain information from them. In those circumstances, I do not see how the words a defined public interest as applied to freedom to publish and purchase newspapers can fairly be transmuted into a recognised public interest in the press not being required to disclose its sources.
Doing the best that I can with the authorities put before me, I have failed to find anything which I can regard as establishing the recognised public interest for which Mr. Irvine contends. Indeed, the authorities seem to me to point the other way. I may add that I have considered Senior v. Holdsworth, Ex parte Independent Television News Ltd.  Q.B. 23, which concerned a witness summons to a television company to produce all the film which its team had taken of a pop festival, whether transmitted or not. The summons was set aside as being so wide as to be oppressive; but there were various dicta concerning the rights of the press and television companies which were cited to me. I have considered these of course, but I do not think that they add much of any relevance to the other authorities. I certainly do not think that they give any real assistance to Granada.
I therefore turn to the question whether such an interest ought to be established by the courts. The N.S.P.C.C. case strongly indicates that in these matters development normally proceeds through evolution by extension of recognised principles, or by analogy to them: see at pp. 225, 235, 241, 242; Science Research Council v. Nasse  A.C. 1028, 1066, 1073, 1081, 1087, 1088. Thus the rule for police informers was extended to those who informed the N.S.P.C.C. I do not say that there can never be a new category: but in deciding whether to recognise any claimant, the principles to be deduced from the settled law will provide guidance. Indeed, there is high authority for saying that only by analogy can any extension be made: see the Nasse case at p. 1081.
In the present case it is far from easy to see on what principle it ought to be declared that there is a recognised public interest and policy in protecting press sources against disclosure. As I have said, the press has often exposed wrongdoings which otherwise might have remained hidden. In that sense, and to that extent, the press no doubt is promoting a public benefit. But unlike the police or the N.S.P.C.C., whose major function is to prevent wrongdoing and take remedial action when it occurs, these activities are but a minor part of the usual functions of the press. The press seeks, not always successfully, to make money by providing the public with a particular form of useful service. In the press, news predominates over entertainment, though of course I do not suggest that news cannot be made entertaining, or that the balance between news and entertainment will not vary considerably from day to day and between one newspaper [*1117] and another. With television, entertainment predominates over news. But however much or little these generalisations may be accepted, it cannot be disputed that the so-called investigative journalism occupies but a small part of the space in the press and the time of the television programmes. No doubt a striking piece of investigative journalism assists in selling newspapers and in attracting the public to watch commercial television programmes, thereby encouraging advertisers. If such journalism damped sales and repelled viewers, or perhaps if it merely stood neutral, it is unlikely that it would be undertaken. After all, it costs money; and although no doubt there are a number of instances of crusading zeal which would seek to ignore financial discouragement, there must be some limits. All this, it seems to me, is very different from the police and the N.S.P.C.C.
There is a further consideration. It has not been suggested that the press or television companies have been accorded any legal duties or powers in carrying out investigations and making exposures. For the police there is a duty, and for the N.S.P.C.C. there is a statutory power: but for the press and television companies there appears to be nothing save the exercise of their free choice. They can do as much or as little as they wish. At most, there could, I suppose, be said to be a self-imposed duty; and such a duty seems to be a slender foundation for extending to them the rule for the police and the N.S.P.C.C.
It may be said that investigative journalism is by no means always beneficial to the public. There have been instances of the exposure of scandals which in the event have turned out to be no scandals at all, but only the prelude to expensive claims for defamation. There have been instances, too, where the fair conduct of criminal trials has been impaired by the publication of information from which the jury was being shielded. None could say that there was any public advantage in the publication of the unjustified libels or in bringing unfairness to criminal trials. There have also been instances of grave and unwarranted invasions of privacy. These matters, however, do not seem to me to be of any great relevance to what I have to decide. The police and the N.S.P.C.C. are by no means immune from making mistakes. Sometimes prosecutions are brought that turn out to be unfounded, and sometimes investigations are made that prove to be based on false information, as in the N.S.P.C.C. case  A.C. 171 itself; yet these blemishes do not deprive the police or the N.S.P.C.C. of their special position. I would readily assume that for the press and television the balance lies much on the credit side, and that their activities in this field are in the main beneficial to the public. Yet there is an important difference, as it seems to me, in that whereas the police and the N.S.P.C.C. are wholly devoted to activities which are plainly in the public interest, without being impelled by any profit motive or considerations of mere newsworthiness, the same cannot be said of the press or television companies.
In one sense, of course, the activities of any organisation which makes useful goods or provides useful services, and gives employment to many, may be said to be in the public interest; and the same may be said of those who provide entertainment, for nobody would want life to be grey and cheerless. In this sense, the press and television are plainly included. But I do not think that in the sphere with which I am concerned the phrase [*1118] public interest is used in so wide and general a sense. Instead I think that there must be something in the nature of a compelling demand for the services in question in order that the life of the community may be carried on in a civilised manner. Crimes must be prevented or detected, children must be protected, national security must be preserved, and justice must be done. It is at least highly desirable, too, that there should be a regular supply of reliable news; but I do not think that investigative journalism can claim so high a place.
As the N.S.P.C.C. case shows, a duty to do such things is not essential, though no doubt it helps. The press is not to be excluded from this category merely because it investigates or exposes under none save a self-imposed duty. But it stands outside because I cannot see that the function that the press discharges is one in which there is any sufficient public interest and policy which requires the confidentiality of its sources to be preserved at a trial. Certainly there is no statutory recognition of its position in these matters such as the N.S.P.C.C. was accorded when it was given power to take proceedings for the protection of children. I would therefore hold that there is no recognised public interest and policy for the press and television as claimed by Mr. Irvine.
Let me suppose that this is wrong, and that there is the recognised public interest and policy for the press and television for which Mr. Irvine contends, and that I ought to weigh this against the interests involved in requiring a disclosure of sources. One of Mr. Irvines subsidiary propositions, in its amended form, was that there was no reported case in England in which the private interest of the plaintiff has been held to override the public interest in protecting the medias sources of information. The words in England were inserted in order to allow for In re Buchanan (1964) 65 S.R.(N.S.W.) 9, to which I have already referred. The proposition, which puts the plaintiffs private interest in apposition to the public interest, seems to me to be plainly fallacious in its formulation. The plaintiffs private interest seems to me to be a mis-description for the paramount public interest that in litigation all relevant evidence should be available to the court. However private the interest that the plaintiff seeks to protect, the real balance is between the public interest in justice being done, and whatever public interest there is in protecting the medias sources of information. I do not think that authority for this need be cited, though if authority be required, it may be found in the N.S.P.C.C. and the Nasse cases, passim, and elsewhere.
Now in this case, B.S.C. are not seeking to discover Granadas sources as part of some other claim: the action is a direct action simply to discover the sources. Discovery of the sources is not merely a means to an end; it is the end itself. The evidence of Mr. Siddons, a director of the Secretariat of B.S.C., is that inquiries have been made to discover the person or persons responsible for removing the documents; and these inevitably have created an unpleasant atmosphere among B.S.C.s employees, particularly at their head office. A cloud hangs over a number of people, many of whom must be entirely innocent. Inevitably there must be suspicion and uncertainty about whether there will be any further disclosures of confidential information, and to whom. On behalf of Granada, Mr. Boulton asserts that it is plain that B.S.C. have embarked on a punitive expedition. [*1119] That may or may not be so; but punishment apart, I think that any organisation, including Granada itself, would want to take precautions against any further disclosures of information which is considered to be confidential, and against placing any further confidential information in the power of an undiscovered employee who has committed a grave breach of confidence. As well as being unpleasant, such an atmosphere is plainly likely to militate against efficiency.
If, contrary to my opinion, I have to weigh Granadas claim to a public interest in preserving confidentiality against the public interest in full disclosure being made in litigation, I feel no hesitation in holding that the balance comes down on the side of disclosure. There is no other way in which B.S.C. can obtain the information, and they plainly need it to protect themselves against a real peril. To deny them this information would be a denial of justice to plaintiffs who clearly have been seriously wronged. Even at the interlocutory stage, if the fair disposal of a case cannot be achieved without ordering discovery, then as a last resort discovery will be ordered: see Science Research Council v. Nasse  A.C. 1028, 1067, per Lord Wilberforce, commenting on the use of the term balancing.
Finally, there is the question of a Norwich Pharmacal order as an equitable remedy. If it is right to consider such an order as being discretionary, like the generality of equitable remedies, then it is necessary to consider all proper questions which may affect the exercise of the discretion, and not merely questions of the public interest. I do not think that damages would be an adequate remedy. They would be very difficult to assess, and I cannot see how any sum that would be likely to be awarded could adequately recompense B.S.C. for the continuing injury done to them by leaving in their midst an undiscovered and undiscoverable employee who has been guilty of so grave a breach of confidence. Nor can Granada claim to be in the state of innocence that the Commissioners of Customs and Excise were in in the Norwich Pharmacal case  A.C. 133. Granada received a large number of documents which they knew were confidential and had been illicitly brought to them; they used them for a critical television programme, making considerable play of their secrecy, and doubtless taking full advantage of the publics curiosity about things secret; and when at last they returned them, they mutilated them, knowing full well that they had no right to do so. From first to last B.S.C. has done nothing to injure or provoke Granada. In those circumstances, the contention that B.S.C. should drop it all and let bygones be bygones almost took my breath away. Such a phrase can have no application where all the injury is on one side. I have never heard of a quid non pro quo.
In the result, if the general discretion applicable to equitable remedies has to be exercised in this case, I would unhesitatingly exercise it in favour of B.S.C. I can see nothing in Granadas claim to preserve confidentiality which comes near to countervailing B.S.C.s claim to the relief which they seek. It is indeed trite that there is no confidentiality in iniquity; and Granadas participation in the breach of confidence, if nothing worse, was flagrant. The case is one not of the exposure of iniquity, but of exposure by iniquity, and of exploiting the fruits of wrongdoing. What Granada are saying is that although they have knowingly and publicly infringed [*1120] B.S.C.s confidences, they are entitled to maintain the confidentiality that they promised their dishonest source of information. I say nothing about Granadas right to remain silent about information honestly supplied: that does not arise.
One point that I should add is that although in form this is merely a motion, it was rightly accepted on all hands that if the order sought by B.S.C. was made, that would dispose of everything of any real substance in the action, save only the question of damages, if B.S.C. chose to pursue this. Thus although the proceedings were in form interlocutory, they were treated on both sides as if they were in substance final for the purposes of the relief claimed. What has once been disclosed cannot be subsequently undisclosed.
As this judgment is of some length and complexity, it may be of assistance if I try to summarise the main points. Here, as elsewhere, I use the term press as including television companies.
(1) Granada are not protected against having to disclose the identity of their source of information by any privilege against self-incrimination, because there is no real peril of Granada incriminating themselves by making the disclosure. (2) Granada have no absolute privilege against disclosing the source of their information, and they have rightly not sought to contend that they have any such absolute privilege. (3) There has long been a practice, which may have ripened into a rule of law, that at the interlocutory stage the press will normally not be required to disclose their sources of information: but this does not apply at the trial of the action. (4) It is not yet entirely clear whether the court has a discretion after the interlocutory stage to exclude relevant evidence and so to exempt the press from disclosing their sources of information, or whether there is merely a discretion to discourage rather than exclude. The prevailing balance seems to be in favour of the former of these two views, though I can see much force in the latter. (5) If there is a discretion to exclude, it does not exist in the wide form of requiring the court in each case to balance the advantages of exclusion against the disadvantages, regarded from the point of view of the public interest. What is required is that there should be shown to be considerations of a recognised public interest which support exclusion sufficiently strongly to outweigh the recognised public interest that all relevant and proper evidence should be available at the trial. (6) No public interest in the press not being forced to disclose their sources of information at the trial has yet been recognised; and there are insufficient grounds for holding that such an interest ought to exist. (7) If, contrary to my view, there is or ought to be such an interest, then in this case I do not consider that it outweighs the public interest in enforcing B.S.C.s legal claim to be given the information that they seek. (8) If B.S.C.s claim to disclosure is to be treated as a claim to equitable relief lying in the discretion of the court on general grounds, then I think that the balance of those general grounds lies firmly in favour of granting the remedy. (9) Although in form this is a motion and not the trial of the action, I think that the parties were right to treat it as being in substance the trial of the action for the purpose of the relief claimed in the motion. [*1121] In the result, for the reasons that I have given, I hold that this motion succeeds. The precise form of order will be for discussion.
Order that the defendants do forth-with make and serve on the plaintiffs solicitors an affidavit setting forth the names of all persons responsible for supplying them with confidential documents being the property of the plaintiffs or with any copies thereof.
Leave to appeal.
APPEAL from Sir Robert Megarry V.-C. [*1122]
May 7. The following judgments were read.
LORD DENNING M.R. The Steel Papers were highly confidential. Granada Television used them in a programme which contained severe criticism of the British Steel Corporation. The question is: Can Granada be compelled to disclose their source of information?
All of us remember the steel strike at the beginning of this year. It is described in my judgment in Duport Steels Ltd. v. Sirs  1 W.L.R. 142, 148-149. The men employed by the British Steel Corporation came out on strike for higher wages. On the face of it, the dispute was between the workers and the management. But it developed into a confrontation between the trade union and the government. The media gave the dispute full coverage. Each side went on the air to give its point of view. There was a battle in which each sought to get the support of public opinion.
Much might be said in this case against the conduct of the unnamed informer and against Granada for the programme which they put on the air. But I feel that we should for the moment look upon the facts as they appeared to the unnamed informer and Granada. A good deal of it is surmise, but that is inevitable, seeing that the unnamed informer has not come forward to put his case.
The viewpoint of the unnamed informer
The viewpoint of Granada
When Granada read the papers, they were most interested. At the first glance they were very confidential. Many of them marked Secret. Granada thought that the papers might be useful to put in a programme. They gave a firm assurance to the unnamed informer that no step would be taken that might reveal or risk the disclosure of his identity. They regarded it as a basic ethic of the journalists profession that the identity of sources must be protected.
What use should be made of these Steel Papers as they were called? It was considered by the head of current affairs at Granada Television, Mr. David Boulton. He asked the programme editors and the producer to go through the Steel Papers and assess their content and import. He got their assessment. He decided that there were a number of points which were of considerable public interest that should be ventilated. Especially as the British Steel Corporation was a public corporation accountable to Parliament. He thought that the disclosure of the documents could legitimately be regarded as a public duty. He felt, however, that the co-operation of the British Steel Corporation should be sought. The corporation should be advised that Granada had the documents: and Sir Charles Villiers, the chairman of the corporation, should be invited to take part in a programme. Mr. Boulton says that their purpose was to make a fair presentation and to afford the corporation ample opportunity to explain and answer the points which arose from the documents.
The implementation of the plan
The implementation of the plan was left by Granada to Mr. Segaller, the producer. He got into touch with Mr. Melvin, the press officer of the Steel Corporation. It was arranged that Sir Charles should give an interview on television. It was to be pre-recorded on the afternoon of Monday, February 4, 1980. It was to be used as part of a programme on The World in Action at 8.30 p.m. that day. It was to be broadcast countrywide on the whole of the Independent Television network.
That was about 10.00 p.m. on the Sunday night. But Mr. Segaller must have worked late that night. He set to work there and then on a letter. He dated it that day, Sunday, February 3, 1980, in Manchester. He had it ready by first thing on Monday morning. Then he sent it by air messenger to London. This is what it said:
February 3, 1980.
I enclose a draft outline of the contents of the World in Action programme to be recorded and transmitted today that would be Monday the 4th for the information of Sir Charles Villiers before the interview we have agreed to record. This outline includes details of B.S.C. internal papers of which copies have been passed to us in the past few days, and to which the programme will refer.
These documents, and the filmed material in the programme, form the basis for the areas of questioning detailed on another sheet, also enclosed. I think you will find that the programmes full script will stick very closely to the outline, and the questions to be put in the interview will reflect the programme material very straightforwardly.
I look forward to speaking to you again later this morning that is the Monday to confirm arrangements for Sir Charless interview in either Manchester or London.
Note: As I said, today and this morning must mean Monday, February 4, 1980.
The enclosures were three pages outlining the programme and referring to some of the steel papers specifying this or that report or memorandum but not the particular part of it which was to be used.
That letter arrived at the corporations office in Grosvenor Place on the Monday. Not long before Sir Charles and Mr. Melvin had to leave on the train for Manchester. They took it with them and read it, I expect, on the train. As soon as they got to the Granada office, Mr. Segaller, the producer, gave Sir Charles a full script of the whole programme. Granada had evidently got the programme all prepared all extracts from the steel papers photographed all words spoken all on video tape covering 20 minutes of viewing time with only another seven minutes to be filled by the interview with Sir Charles. That was to be transmitted unedited.
Sir Charles protested, he says, about their possession of the steel papers. They say that he did not protest. But whether he did so or not, there was certainly no consent on his part to their using them. At any rate, Sir Charles was interviewed. It did take seven minutes. We have seen the whole programme as it was sent out: and we have the script of it. At the outset (before interviewing Sir Charles) the commentator made full play with the steel papers. He said:
Last week a number of documents came into the possession of World in Action. They are letters, memos and internal reports from the [*1125] B.S.C. They were drawn up over the last five years and none of them was ever intended for publication. Tonight we examine these papers and the new light they appear to throw on the corporation strategy and the Governments declared policy of non-intervention.
Then the commentator goes on, time after time, to say that the B.S.C. documents received by World in Action showed this, that or the other. Sometimes it was to show poor management on the part of the corporation. At other times it was to show that there had been back-door government intervention which had produced or prolonged the strike. The programme showed extracts from the steel papers to support these suggestions.
Eventually, when the time came for Sir Charles to be interviewed, the commentator says: The strike is now in its sixth week. Here to discuss the implications of the steel papers Sir Charles Villiers, Chairman of B.S.C.
Then the commentator takes Sir Charles to task. He does it with all the skill of an expert cross-examiner who has all the papers at hand to confound the witness. Such questions as: Do you feel that your decisions were taken as a direct result of Government policy? Surely it is a Government intervention ? Your bankers are the Government and therefore the Government are essentially controlling your policy-making.
Then there was this illuminating interchange about the documents:
Several documents have your officials and executives referring to the fact that they have to consult the Government on this and on that. Does that not make it sound a little strange when Sir Keith Joseph says he is not intervening in the steel dispute?
Sir Charles: I dont know what documents youre referring to and we shall see perhaps before very long.
On several occasions the commentator interrupted Sir Charles and did not let him finish his answer. It reminded me of the many occasions when I have had to rebuke an advocate, saying: Please let him finish his answer.
In short, the commentator was making the case which the unnamed informer had made, using the steel papers to confound the British Steel Corporation and the Government and Sir Charles himself.
As soon as Sir Charles had finished his seven minutes, he went off to catch his train back to London. There were newspaper reporters waiting. He had, of course, to be cautious with them. They asked him: Was it unfair? He answered: It was not a totally unfair programme. They asked: Was it accurate? He answered: Most of the programme was accurate, but there are one or two things which were screwed up.
Next day The Daily Mail gave its impression of the programme reading it as putting the blame on the Government, with a big headline: Sir Keith blocked a pay offer to steel men. But also putting the blame on the corporation:
B.S.C. chiefs knew strike was on the way TV probe.
Secret British Steel Corporation documents show that B.S.C. bosses [*1126] apparently knew last summer that Government cash restrictions would cause a strike . It was alleged that the corporation was preparing for a 14 per cent. pay rise for the steelmen which would have averted the strike but were prevented by Industry Secretary Sir Keith Joseph from putting it on the table.
The demand for the papers
The corporation were most disturbed. On the Tuesday morning February 5 the director of their legal services sent a telex to the managing director of Granada:
The B.S.C. documents are the property of the B.S.C., are highly confidential, and B.S.C. owns the copyright in all these documents. I do not know how you obtained possession of the B.S.C. documents. However, you certainly did not receive the B.S.C. documents with the consent or approval or knowledge of B.S.C. In the circumstances your possession of the B.S.C. documents is unlawful. Your publication of the B.S.C. documents is a breach of confidence and a breach of copyright.
He demanded undertakings from Granada including an undertaking to deliver up to B.S.C. forthwith the B.S.C. documents and any copies thereof in the possession of Granada.
On the next day, February 6, the corporation issued a writ against Granada, claiming an injunction and an order for delivering up the documents. This was followed by correspondence between solicitors. By a letter of February 27, 1980, Granada agreed to submit to injunctions and to make no further use of the documents. Furthermore, they agreed to deposit the documents in the joint custody of the two firms of solicitors. The solicitors for Granada also adumbrated their defence in these words:
It is right to put on record that our clients decision to use the documents and to make the television programme arose from a firm conviction on their part that there were matters of urgent and important public interest that needed to be ventilated following relevations contained within the documents. It is also right to say that no payment of any kind was made by our clients or anyone on their behalf in respect of the documents .
The state of the papers
On the next day the papers were delivered into joint custody and inspected on behalf of the Steel Corporation. They were then found to have been tampered with so as not to give any clue to the identity of the unnamed informer. For instance, each copy of a secret document was with a number so as to show to whom it had been handed. Such as Secret Copy No. 12. The number 12 was cut off. There were not many such clues, but such as they were, they were cut off. No doubt Granada did this so as to implement their promise to the unnamed informer that they would do nothing to disclose his identity.
The corporations solicitors were so astonished by this discovery that they at once protested. They demanded to know when and by whom the [*1127] documents were mutilated: and the identity of the informer. When this information was not forthcoming, they amended the writ claiming an order on Granada to make an affidavit setting forth the names of all persons responsible for supplying them with the documents.
I must say that I regard this tampering with the documents as a most serious matter. These documents were the property of the British Steel Corporation beyond all question. They were the very subject of a pending action by the corporation against Granada. They were the most important evidence in the case. To destroy them or any part of them is just as bad as the obstruction of a witness. Just as it is a contempt of court to obstruct oral evidence by preventing a witness from attending the hearing see Rex v. Hall (1776) 2 Wl.Bl. 1110 so also it is a contempt of court to obstruct documentary evidence by destroying or defacing a piece of paper which is of importance in a pending action. Mr. Irvine tried to draw a distinction between destroying evidence and destroying the subject matter. But that is a distinction without a difference. It is no excuse to say that it was done with a good motive, such as to protect the source of the information or as I would say to conceal the identity of the informer. Whatever the motive, it is a contempt of court deliberately to mutilate a document which is likely to be called for in a pending action. Let me assume for the moment that it may be privileged or protected from disclosure. That can be discussed later. But what is not permissible is deliberately to mutilate it with the intent that it should not be available if called for.
This brings me to the law. I will first dispose of two points raised by Mr. Irvine for Granada.
First: No doubt Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133 opened a new chapter in our law. It enables a person, who has been injured by wrongdoing, to bring an action to discover the name of the wrongdoer. Mr. Irvine suggested that this was limited to cases where the injured person desired to sue the wrong-doer. I see no reason why it should be so limited. The same procedure should be available when he desires to obtain redress against the wrong-doer or to protect himself against further wrongdoing.
Second: It was suggested that Granada might avoid disclosing the identity by pleading the privilege against self-incrimination. The simple answer is that in these courts, as in the United States, the privilege is not available to a corporation. It has no body to be kicked or soul to be damned. The public interest lies much more in making corporations disclose their misdeeds than in giving them this shield of privilege.
This clears the decks for the great question in the case: Ought Granada to be compelled to disclose their source of information? This lies, I believe, in balancing the public interests as we have done in all our recent cases, such as D. v. National Society for the Prevention of Cruelty to Children  A.C. 171 and Science Research Council v. Nasse  Q.B. 144;  A.C. 1028. This I proceed to do. [*1128]
The cases in England
For well over 100 years it has been a settled rule that, when a plaintiff sues a newspaper for damages for libel, the newspaper will not be compelled to disclose its source of information: at any rate in answer to interrogatories administered in interlocutory proceedings before trial. We have looked at all the reported cases such as Hennessy v. Wright (No. 2) (1888) 24 Q.B.D. 445n; Hope v. Brash  2 Q.B. 188; Plymouth Mutual Co-operative and Industrial Society Ltd. v. Traders Publishing Association Ltd.  1 K.B. 403; Lyle-Samuel v. Odhams Ltd.  1 K.B. 135 and Georgius v. Oxford University Press  1 K.B. 729. Sometimes this is put as a rule of practice on the ground that it is not necessary at the interlocutory stage to discover the name of the informant. At other times it is put as a rule of law on the ground that the plaintiff has an adequate remedy in damages against the newspaper and that it is not in the public interest that the name of the informant should be disclosed else the sources of information would dry up. But, whichever way it is put, the court has never in any of our cases compelled a newspaper to disclose the name of its informant. Save in the leading case of Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477, where on balance the public interest in compelling disclosure outweighed the public interest in protecting the sources of information.
The cases in the United States of America
The problem has been much considered in the United States of America. The cases show the courts there striking a balance between the various public interests. On the one hand the importance of the press not being compelled to disclose their sources of information. On the other hand the importance that a private individual should have redress for wrongs done to him. Neither interest overrides the other. Each case depends on its own facts. Three cases are instructive.
In 1958 the New York Herald Tribune published an article which was highly defamatory of the actress Judy Garland. The article was written by a columnist Marie Torre who said in it that she had got her information from an executive of a broadcasting network. Judy Garland tried all possible ways of discovering the name of the informant, but without success. She sued the columnist and asked for the name of the informant. The question went to the heart of Judy Garlands case. The court ordered the columnist to disclose the name: see Garland v. Torre (1958) 259 F. 2d 545.
In 1962 the Saturday Evening Post published an article which exposed the wrongdoing of unscrupulous real estate speculators, especially in discriminating against the blacks. The article was written by a journalist who got his information from an anonymous real estate agent in Chicago. The blacks brought a class action and asked the court to compel the journalist to disclose his source of information. The court refused. It said:
the public interest in non-disclosure of journalists confidential news sources will often be weightier than the private interest in [*1129] compelled disclosure: see Baker v. F. & F. Investment (1972) 470 F. 2d 778, 785.
In 1972 there was a break-in at the Watergate offices of the Democratic National Committee. Journalists made a close investigation to ascertain whether the highest levels of government were involved. They got confidential information from a broad range of sources. They were subpoenaed so as to give evidence about their sources of information. The court set aside the subpoenas saying:
What is involved here is the right of the press to gather and publish, and that of the public to receive news, from widespread diverse and ofttimes confidential sources: see Democratic National Committee v. McCord (1973) 356 F.Supp. 1394, 1396.
Then the court expressed its full accord with the language of Powell J. in the Supreme Court of the United States in Branzburg v. Hayes (1972) 408 U.S. 665, 710:
The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
The resulting principle
After studying the cases it seems to me that the courts are reaching towards this principle. The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by questions or cross-examination at the trial. Nor by subpoena. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power in companies or in government departments would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press. Notably in the Watergate exposure in the United States: and the Poulson exposure in this country. It should not be unduly hampered or restricted by the law. Much of the information gathered by the press has been imparted to the informant in confidence. He is guilty of a breach of confidence in telling it to the press. But this is not a reason why his name should be disclosed. Otherwise much information, that ought to be made public, will never be made known. Likewise with documents. They may infringe copyright. But that is no reason for compelling their disclosure, if by so doing it would mean disclosing the name of the informant.
In all these cases the plaintiff has his remedy in damages against the newspaper or sometimes an injunction: and that should suffice. It may be for libel. It may be for breach of copyright. It may be for infringement of privacy. The courts will always be ready to grant an injunction [*1130] to restrain a publication which is an infringement of privacy. That was well shown when Mr. Strange published drawings which Queen Victoria made for her private amusement: see Prince Albert v. Strange (1849) 1 H. & Tw. 1. So let the plaintiff sue the newspaper: without getting the name of their informant. I know that in some cases it might be relevant and useful in the interests of justice for a plaintiff to get to know the name of the newspapers informant so as to prove malice, for instance but the plaintiff will have to forego this advantage in deference to the interest which the public has in seeing that newspapers should not be compelled to disclose their sources of information.
Nevertheless, this principle is not absolute. The journalist has no privilege by which he can claim as of right to refuse to disclose the name. There may be exceptional cases in which, on balancing the various interests, the court decides that the name should be disclosed. Such as in Garland v. Torre, 259 F. 2d 545 in the United States and Attorney-General v. Mulholland  2 Q.B. 477 here. Have we any yardstick by which to determine which cases are exceptional? It seems to me that the rule by which a newspaper should not be compelled to disclose its source of information is granted to a newspaper on condition that it acts with a due sense of responsibility. In order to be deserving of freedom, the press must show itself worthy of it. A free press must be a responsible press. The power of the press is great. It must not abuse its power. If a newspaper should act irresponsibly, then it forfeits its claim to protect its sources of information.
Let me give some examples. If a newspaper gets hold of an untrustworthy informant and uses his information unfairly to the detriment of innocent people then it should not be at liberty to conceal his identity. If it pays money to an informant so as to buy scandal and publishes it then again it abuses its freedom. It should not be at liberty to conceal the source. But, if it gets hold of a trustworthy informant, who gives information of which the public ought to know, then, even though it originated in confidence, the newspaper may well be held to act with a due sense of responsibility in publishing it. It should not be compelled to divulge its source. All that I have said applies equally to television. The like principles apply to them.
Applying the principles
I have been much troubled whether Granada acted with a due sense of responsibility. Many things they did are disturbing. Not so much in the decision to use the information in the public interest, but in the way they went about it. It is most unfortunate that they left it so late to tell the corporation: and they did not give Sir Charles any opportunity to see the script before he got to the studio. I have also described the conduct of the interview by the commentator. It speaks for itself. It was deplorable. Added to this, their tampering with the papers was disgraceful. In those circumstances I hold that Granada did not act with a due sense of responsibility. If earlier warnings had been given, I would have expected the Steel Corporation to have moved for an injunction which they might have got and the programme would never [*1131] have been shown. I cannot think it right that their want of responsibility should enable them to make this damaging attack on the Steel Corporation and on the government. They behaved so badly that they have forfeited the protection which the law normally gives to newspapers and broadcasters. This protection is given only on condition that they do not abuse their power. Here Granada have abused it. They should be compelled to discover the source of their information. I would dismiss the appeal.
TEMPLEMAN L.J. B.S.C. sought and Sir Robert Megarry V.-C. granted a mandatory injunction directing Granada to identify the B.S.C. employee who provided Granada with B.S.C. documents which were the property of B.S.C. The employee acted in breach of his contractual duty to B.S.C. in handing over the documents to Granada and thereby, in further breach of his contractual duty, disclosed to Granada information confidential to B.S.C. Granada appreciated that the employee was acting in breach of his duty to B.S.C. The employee was promised that his identity would not be revealed. After studying the documents, Granada used the documents in Granadas television programme and thereby knowingly acted in breach of their duty in tort to B.S.C.
It has long been the law that one wrongdoer may be compelled by the victim to disclose the identity of another wrongdoer where their offences are connected: see the Norwich Pharmacal case  A.C. 133, 175. The decision in the Norwich Pharmacal case established that an innocent person who becomes involved in the actions of a wrongdoer may also be ordered to disclose the identity of the wrongdoer provided that disclosure is necessary to enable the victim to take proceedings against the wrongdoer. In the words of Viscount Dilhorne at p. 188:
discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it.
Lord Kilbrandon, at p. 205, adopted the words of Beaumont A.J. in Colonial Government v. Tatham (1902) 23 Natal L.R. 153, 158, that:
The principle which underlies the jurisdiction which the law gives to courts of equity in cases of this nature, is that where discovery is absolutely necessary in order to enable a party to proceed with a bona fide claim, it is the duty of the court to assist with the administration of justice by granting an order for discovery, unless some well-founded objection exists against the exercise of such jurisdiction.
B.S.C. must first establish wrongdoing. An employee who discloses information confidential to his employer is guilty of wrongdoing unless the information relates to misconduct on the part of the employer. In Initial Services Ltd. v. Putterill  1 Q.B. 396, 405 Lord Denning M.R. agreed that in the employment of every servant there is imposed by law an implied obligation that he will not disclose information or documents which he has received in confidence. Lord Denning M.R. nevertheless commented that this obligation is subject to exceptions and is not binding on the servant where the master has been guilty of [*1132] misconduct of such a nature that it ought in the public interest to be discovered. Thus the servant who conveys to a journalist information which discloses that the employer has been guilty of crime or fraud or misconduct which ought to be laid bare in the public interest does not commit a breach of duty and the journalist may safely promise to conceal the identity of the servant.
Granada do not suggest that B.S.C. were guilty of misconduct which released the employee from his duty of confidentiality or justified a promise of secrecy or justified Granadas use of B.S.C.s documents and confidential information. Granada admit that B.S.C. have established wrongdoing by their employee followed by wrongdoing on the part of Granada.
B.S.C. must secondly establish that they are concerned to obtain discovery in order that they may not be denied justice. In the Norwich Pharmacal case  A.C. 133 the court assisted the victim of the wrongdoing to ascertain the identity of the wrongdoer in order that the victim might institute legal proceedings against the wrongdoer. In the present case it was argued by Granada that B.S.C. have no intention of taking legal proceedings against their employee but only intend to dismiss or reprimand or harass the employee. In my judgment the principle of the Norwich Pharmacal case applies whether or not the victim intends to pursue action in the courts against the wrongdoer provided that the existence of a cause of action is established and the victim cannot otherwise obtain justice. The remedy of discovery is intended in the final analysis to enable justice to be done. Justice can be achieved against an erring employee in a variety of ways and a plaintiff may obtain an order for discovery provided he shows that he is genuinely seeking lawful redress of a wrong and cannot otherwise obtain redress. In the present case B.S.C. state that they will not finally determine whether to take legal proceedings or whether to dismiss the employee or whether to obtain redress in some other lawful manner until they have considered the identity, status and excuses of the employee. The disclosure of the identity of the disloyal employee will by itself protect B.S.C. and their innocent employees now and for the future and is essential if B.S.C. are to redress the wrong.
In the third place B.S.C. must establish that discovery by Granada of the identity of the employee is necessary. On behalf of Granada it was submitted that B.S.C. obtained and abandoned a sufficient remedy against Granada in damages for the consequences of the wrongdoing by the employee and by Granada. It was submitted that B.S.C. suffered little harm from the television programme and that B.S.C. should not be allowed to pursue their employee. In my judgment the remedy of B.S.C. against Granada in damages in the present instance is irrelevant and plainly inadequate. B.S.C. need to establish the identity of their employee because innocent employees are under suspicion, because free and frank discussions between members of the staff of B.S.C. are inhibited, and because further wrongdoing either by the present disloyal employee or by other employees tempted to be disloyal in the future must be prevented and will be prevented if and only if the identity of the wrongdoer is [*1133] disclosed. Granada do not suggest that B.S.C. have any practicable method of discovering the identity of their employee save the method of obtaining an order of the court that Granada shall reveal his or her identity.
Thus B.S.C. are entitled to an order for discovery of the identity of their employee unless in the words of Lord Reid in the Norwich Pharmacal case  A.C. 133, 175, there is some consideration of public policy which prevents that. In the Norwich Pharmacal case Lord Reid proceeded to weigh the requirements of justice against the considerations put forward for justifying non-disclosure. The consideration put forward in the Norwich Pharmacal case was that there was a public interest in protecting the confidentiality of information given to the customs authorities by importers because the information was given by compulsion of statute and because importers would cease to give full and candid information to the customs authorities if those authorities could be compelled to reveal that information to the court and to third parties. The reasons advanced in the Norwich Pharmacal case for resisting discovery were judged by the House of Lords to be insufficient.
In D. v. National Society for the Prevention of Cruelty to Children  A.C. 171, however, the N.S.P.C.C. successfully resisted an order for the discovery of an informant who inaccurately alleged that the plaintiff had ill-treated a child. Discovery was refused because information regarding child cruelty would not be forthcoming if the N.S.P.C.C. were obliged to reveal the names of their informants and it was in the public interest that such information should be supplied to the N.S.P.C.C. Lord Diplock said at p. 218 that
The private promise must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.
In the present case the public interest claimed by Granada is an interest in securing that informants are not deterred by the possibility of disclosure from providing the press and other media with information relating to matters of general interest.
Mr. Irvine who appeared for Granada relied on the authorities which he said established the existence of a public policy immunity from the remedy of discovery enjoyed by the media for the purpose of ensuring that the public received full information on matters of public concern.
Mr. Irvine relied in particular on authorities which establish a settled rule of practice or rule of law that newspapers in libel actions are entitled, save in special and undefined circumstances, to decline to reveal their sources of information.
In Hennessy v. Wright (No. 2), 24 Q.B.D. 445n, an interrogatory demanding the name of the newspapers informant was disallowed because the question was not asked bona fide for the purposes of the libel action against the newspaper. A similar reason was given in Parnell v. Walter (1890) 24 Q.B.D. 441. Neither of these cases assists Mr. Irvine. But in [*1134] Adam v. Fisher (1914) 30 T.L.R. 288 Buckley L.J. suggested two reasons for the practice of disallowing discovery and interrogatories directed to ascertaining the source of information of a newspaper libel. One reason, he suggested, might be that a newspaper stood in such a position that it was not desirable on grounds of public interest that the name of a newspapers informant should be disclosed. In Lyle-Samuel v. Odhams Ltd.  1 K.B. 135 the reason suggested by Buckley L.J. in Adam v. Fisher was not received with any enthusiasm, but the immunity of a newspaper from disclosing its source in a libel action save in undefined special circumstances was recognised. In South Suburban Co-operative Society Ltd. v. Orum  2 K.B. 690 it was decided that the immunity of the press did not extend to protecting a defendant to a libel action who was the writer or contributor to the newspaper but not a journalist from disclosing the source of his information. In Georgius v. Oxford University Press  1 K.B. 729, 733, Denning L.J. said that in a libel action it was not necessary to find out the name of a newspapers informant in order to do justice to the plaintiff and that the remedy of the plaintiff against the newspaper should be sufficient. I agree. Such a remedy enables a plaintiff to vindicate his reputation and recover adequate damages unless the newspaper is impecunious. In the present case B.S.C.s remedy against Granada is insufficient for the reasons I have indicated. In Isbey v. New Zealand Broadcasting Corporation (No. 2)  2 N.Z.L.R. 237, 238 Cooke J., now a member of the Court of Appeal of New Zealand, held that the
practice or a principle of a common law that in an action against the proprietor of a newspaper interrogatories will not be allowed as to the name of the person who wrote the alleged libel or supplied the information on which it was founded
applied in New Zealand and extended to television and radio broadcasting. He added at p. 239 that:
while no doubt there are no small number of instances in which the ferreting out and publication of material by news media serves no true public interest, and may do little more than titillate the palate of consumers and cause distress to persons referred to, there is another category of cases in which it clearly is in the public interest that the news media should undertake the responsibility of investigation; provided, of course, that they do so with appreciation that it is indeed a responsibility.
In my judgment these authorities support Mr. Irvines submission that there is a public interest in upholding the claim of the media to immunity from disclosing their sources of information, but sound a word of warning as to the ground for claiming and granting immunity.
A similar approach is to be found in the authorities dealing with the refusal of journalists to reveal their sources to the tribunal of inquiry appointed to inquire into breaches of security in connection with spying offences committed by Vassall. In Attorney-General v. Clough  1 Q.B. 773, 788, Lord Parker C.J. referred to classes of communication which had been recognised as privileged and continued: [*1135]
In the rest of a vast area, it must be for the court to ascertain what public policy demands. If, in the circumstances of any particular case it became clear that public policy demanded a recognition of some claim to privilege, then it would be the duty of this court to give due effect to public policy and recognise the claim.
But he concluded at p. 792 that
in regard to the press, the law has not developed and crystallised the confidential relationship in which they stand to an informant into one of the classes of privilege known to the law [But] it still would remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune
Similarly in Attorney-General v. Mulholland  2 Q.B. 477, 489-490. Lord Denning M.R. commented that:
A judge is the person entrusted, on behalf of the community, to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done If the judge determines that the journalist must answer, then no privilege will avail him to refuse.
These authorities also support Mr. Irvines submission that there is a public interest in upholding the claim of the media to immunity from disclosing their sources but the authorities also establish that the immunity is not absolute and must be weighed against the interests of the community that justice shall not be denied.
Mr. Hoffmann, who appeared for B.S.C., submitted that on principle and on authority, whenever there was a conflict between public policy in securing justice and public policy in upholding the immunity of the media from disclosing their sources, that conflict must always be resolved by ordering disclosure. In the present case, he submitted, B.S.C. cannot obtain justice without disclosure of the name of their employee. Mr. Hoffmann relied on the speech of Lord Wilberforce in Science Research Council v. Nasse  A.C. 1028, 1067 where Lord Wilberforce referred to authorities, including Attorney-General v. Mulholland  2 Q.B. 477 and Attorney-General v. Clough  1 Q.B. 773 as examples
of cases where the courts have recognised that confidences, particularly those of third persons, ought, if possible, in the interests of justice, to be respected and explained that the process is to consider fairly the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it; then to consider whether the objective to dispose fairly of the case can be achieved without doing so, and only in a last resort to order discovery, subject if need be to protective measures.
Mr. Hoffmann submitted that justice cannot be achieved in the present case without disclosure and therefore that the claim by Granada to immunity from discovery cannot prevail. The Norwich Pharmacal case  A.C. 133 itself however recognised that the remedy of discovery [*1136] would not be granted, in the words of Lord Reid at p. 175, to which I have referred, that is until after weighing the requirements of justice against the considerations put forward justifying non-disclosure. In D. v. National Society for the Prevention of Cruelty to Children  A.C. 171 the order for discovery was refused although the plaintiffs chances of success in her action against the N.S.P.C.C. were thereby diminished and she was unable to institute proceedings against the N.S.P.C.C.s informant. In D. v. National Society for the Prevention of Cruelty to Children public policy considerations which protect the anonymity of police informers (see Marks v. Beyfus (1890) 25 Q.B.D. 494) and protect the anonymity of the informants to the Gaming Board (see Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department  A.C. 388) were extended by analogy to protect the anonymity of informants to the N.S.P.C.C. in an action for discovery. In my judgment public policy considerations may also in a proper case protect the anonymity of sources of information to the media in an action for discovery, albeit that an injured plaintiff may be hampered or frustrated in his quest for justice.
The considerations which the authorities disclose and which confer on newspapers immunity from discovery of their sources of information in libel actions, save in special circumstances and which were acknowledged in the Vassall Tribunal case support the view, which also seems to me to be the correct view in principle, that there is a recognised public interest in the immunity of the media from disclosing their sources and that immunity must apply not only in libel actions and other actions directed to obtaining an injunction, damages or other direct relief from the media but also to actions directed solely to the discovery of a wrongdoer.
The authorities also disclose that the immunity of the media from discovery of their sources of information is not absolute and it follows that there will be cases where the media give to an informant a promise of secrecy which the media will be unable to honour. If the media were given power to extend and honour pledges of secrecy in every case then that power would amount to a general exemption for the media from the law of the land and in particular from the law which, pursuant to the Norwich Pharmacal case  A.C. 133, requires the identity of a wrong-doer to be revealed. Such a general exemption is inconsistent with the authorities, is not sustainable in principle and is not claimed by Mr. Irvine on behalf of Granada.
It was said that if Granada are obliged to disclose in the present well publicised proceedings the identity of the employee who provided the B.S.C. documents, then sources of information will cease to be available to the media and the media will be unable to discharge their duty of keeping the public informed on matters of public interest. I do not believe that result will follow. There will always be informants who, for good reason or bad, confide in the media. Those who for good reason disclose facts which the public are entitled to know, such as facts relating to corruption or misconduct, are fully protected against discovery.
In the result the question in the present case is whether Granadas claim to the public policy immunity of the media from disclosing their sources [*1137] of information ought to prevail over B.S.C.s claim that justice must be done.
When the court is called upon to balance the public interest in the attainment of justice against the public interest in the media protecting their sources, the result must inevitably depend on the facts of each case. In my judgment the court will strive to uphold the immunity of the media against discovery provided the media do not mis-use information which they ought not to have received. Some information is not confidential and the media may use such information and conceal its source. Some information claimed to be confidential discloses misconduct and the media may use such information and conceal its source. Some information which is truly confidential may be communicated to the media and then the media may be allowed to conceal the source provided the confidence is respected. But if the media receive truly confidential information they cannot expect both to conceal the source and disclose the information in breach of confidence unless there are strong reasons to justify publication. If, for example, the information discloses facts rather than confidences, or if there is an overwhelming reason to justify publication or if the information is not damaging or embarrassing, or if the reasons advanced by the plaintiff for discovering the source are not cogent, the media may be allowed both to publish the information and conceal the source.
The media should have less difficulty in making decisions about confidential information than they experience in making decisions about publishing statements which may be libellous. The media do not lack legal advisers. The newspaper libel actions are to be distinguished for present purposes because newspapers do not make statements unless they believe them to be true and fair comment, plaintiffs can obtain adequate redress from the newspapers if they are not justified in their belief and informants may have committed no wrong. Similarly in D. v. N.S.P.C.C.  A.C. 171 there was no conscious wrongdoing by the N.S.P.C.C. and no evidence of conscious wrongdoing by their informant. The striking features of this case are that Granada knew full well that the B.S.C. employee had no right to hand over the B.S.C. documents and Granada knew full well that they had no right to publish extracts and confidential information from those documents.
As a general rule, the court should not, in my judgment, allow the media knowingly to break the law, civil or criminal, and claim the immunity. The media should not be allowed to exploit the immunity by promising a wrongdoer concealment so that he may break the law with impunity or by rewarding a wrongdoer with a promise that the media will conceal his guilt, when the wrongdoing is committed with the object and is successful in achieving the object of enabling the media in turn to break the law provided they are successful in evading an injunction and are willing to pay damages. There is no acceptable public interest in upholding the secrecy of unlawful communications made for the purposes of unlawful publication.
In the present case Granada deliberately broke the common law by publishing information confidential to B.S.C. and still Granada claim the immunity of concealing their source. B.S.C. satisfy me that it is damaging to B.S.C., unfair to the employees of B.S.C., and undesirable in the public interest that any employee of B.S.C. and Granada should behave in the way [*1138] they have, leaving the employee undetected and still apparently a trusted employee, enjoying his pay and earning his pension. The employee broke his contractual duty to B.S.C. in order that Granada might act in breach of their duty to B.S.C. Whether the employee would have acted in breach of his duty to B.S.C. if he had not expected or had not been promised concealment by Granada will never be known. Granada argue that B.S.C. are a public corporation and should have no secrets. But discussions between members of the staff of B.S.C. about difficult decisions or management problems are truly confidential, and it was unfair for Granada to publish many of the extracts from the B.S.C. papers which found their way into Granadas television programme. If information is truly confidential it does not cease to be confidential merely because it relates to matters of public interest. In the present case the B.S.C. documents and the contents of those documents which were quoted by Granada were truly confidential albeit that they related to matters of public concern and Granada were not entitled to conceal the source and break the confidence.
For the sake of imparting dramatic impact to a topical television programme, Granada knowingly succumbed to the temptation unlawfully to use confidential material unlawfully obtained. No principle of public policy or freedom of the press or freedom of information or journalistic ethics justifies resistance in these circumstances to B.S.C.s claim to discover from Granada the identity of B.S.C.s employee who broke his promise to B.S.C., enabled Granada to breach their duty to B.S.C., and now shelters behind Granadas promise of concealment.
In addition to their defence based on the claim of the media to keep secret the sources of information Granada submitted two further alternative defences to the present proceedings. It was suggested that B.S.C. acquiesced in the use made by Granada of the B.S.C. documents. The evidence filed by Granada demonstrates that B.S.C. were lured by Granada into taking part in the television programme but does not establish acquiescence. In the alternative Granada submit that they should not be ordered to reveal the identity of the B.S.C. employee because to do so might involve Granada in self-incrimination. Granada accept the apparent inconsistency between their submission that they are entitled to conceal the identity of the B.S.C. employee by claiming an immunity based on public policy and their submission that they are entitled to conceal his identity by claiming the immunity which is afforded to those apprehensive of criminal proceedings. I do not believe there is substance in Granadas fear that crime is more likely to be charged against them if they reveal the name of the relevant B.S.C. employee. Granada have already confessed their part in the events which led to their misuse of the B.S.C. documents. The disclosure of the name of the individual who provided the ammunition which enabled Granada to concentrate their fire on B.S.C. cannot increase the liability, civil or criminal, of Granada for pulling the trigger.
Sir Robert Megarry V.-C. ordered Granada to disclose the name of the employee of B.S.C. and, for the reasons I have indicated, I would dismiss the appeal.
WATKINS L.J. It is, I believe, upon ample legal authority well founded that newspapers and television and broadcasting authorities and their servants [*1139] are in principle immune from disclosing their confidential sources of information. This principle has been applied in a number of cases before courts and tribunals, some of which have achieved public prominence. The public can be said to approve of it. It is in their interest to do so. It is, therefore, a public interest immunity.
The immunity whenever and wherever asserted in legal proceedings, civil and criminal, must not be regarded as one of the species of privilege to which the courts will pay a unique respect. This is especially so whenever questions arise affecting admissibility of evidence or the duty or obligation of anybody either to answer questions or produce documents of evidential or other essential value for a just conclusion of proceedings to ensue.
It can never be said too often that a just conclusion to proceedings means that justice having been seen to be done has in fact and in law been done.
A question of the kind to which I allude may arise from the commencement of proceedings at any stage up to and including the final hearing of them. If the response to the question whenever it is raised is that press immunity, as I shall call it, from disclosure of a confidential source is claimed the court is entitled, as it thinks fit, either to rule upon or to adjourn consideration of it to some later and more appropriate occasion. This procedure is subject, I think, to only one exception by which I mean that provided for in libel actions by R.S.C., Ord. 82, r. 6.
The argument, very forcibly presented on Granadas behalf, that the practice followed in libel actions preceding the making of rule 6 is of general application fails to acknowledge the altogether special nature of the issues in those actions in contrast to those which arise in a widely varied range of others. Furthermore, it ignores the vital need which arises from time to time for one party to obtain from the other information which is properly required at a stage prior to the hearing of the action in which they have joined and for the purpose of it.
It seems to me that the notion of confining a question going to the identity of a source of confidential information which is that asked in the present case to the hearing of the action is an unacceptable challenge to the courts right and duty to do what is just whenever and howsoever it is called upon and decides to settle an issue between the parties before it.
Whenever the issue is settled the determination of it will inevitably flow from the exercise of the courts discretion in the circumstances obtaining to uphold or to deny the claim to press immunity. I am convinced that this claim should be sparingly denied. Those who in an all-embracing word I shall call journalists go about the business of seeking information on behalf of newspapers and television, and broadcasting authorities perform a public service which is crucial to the maintenance of a free and well informed society.
If legal constraints are needlessly placed upon the activities of journalists, they will tend to become undesirably circumspect about their methods of seeking knowledge. Sources of it will be inhibited from passing on what they believe the public ought to know through fear of losing their anonymity. The promise of confidentiality going from journalist to source may [*1140] become untrustworthy. This state of affairs must not arise. If it does, it would react intolerably against the public interest.
On the other hand the journalist must know that he, like everyone else, must live and work within the law of the land. If he does not, and a claim is brought which the court will entertain to cause him to disclose his source of information these consequences are, in my opinion, likely to follow:
(1) If he commits a crime in concert with his source when obtaining information, even if this be done to expose iniquity about which the public ought to know, his claim to press immunity should be denied him.
(2) If he commits a civil wrong by using confidential information to which there is no public right of access from a source whom he knows to have obtained it in breach of his contract of employment with an employer against whom no iniquity is alleged, his claim to press immunity will be very unlikely to succeed in the face of competing public interests, that of doing justice to the wronged employer especially.
(3) If he commits a like civil wrong for the purpose of exposing the employers iniquity which, in the public interest, should be revealed, his claim to press immunity should be granted.
I should add that save in very rare and exceptional circumstances it is impossible to foresee a claim for disclosure which a court would entertain being brought by anybody whose iniquity has been exposed.
Whenever the claim for press immunity falls for consideration it is a weighty matter. Whether it is outweighed by other interests including notably the public interest in the doing of justice and among other things the preservation of state secrets, the court in its discretion will decide. Whether it does this by what is called simply a balancing of interests is debatable. With respect, I prefer the process of the exercise of discretion described by Lord Wilberforce in Science Research Council v. Nasse  A.C. 1028, 1067:
It is sometimes said that in taking this element into account, the court has to perform a balancing process. The metaphor is one well worn in the law, but I doubt if it is more than a rough metaphor. Balancing can only take place between commensurables. But here the process is to consider fairly the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it, then to consider whether the objective to dispose fairly of the case can be achieved without doing so, and only in a last resort to order discovery, subject if need be to protective measures. This is a more complex process than merely using the scales: it is an exercise in judicial judgment.
If in the exercise of judicial judgment it be found that doing justice can be reconciled with preserving press immunity the problem resolves itself and the immunity should be granted. That relatively simple solution is not available to the appellants. A reconciliation of doing justice and of conceding press immunity is impossible of achievement in the face of the facts outlined by Lord Denning M.R.
There is no doubt that B.S.C. have suffered a wrong for which they are entitled to redress. They seek no more than any other employer [*1141] would in reacting to the loss and unlawful use being made of their confidential documents. And I suspect that there are few employers in substantial undertakings at any rate who would fail to react as the corporation have done.
Their motives and behaviour in this rather shabby affair are beyond reproach. The same regrettably cannot be said of Granada, one or two at least of whose servants displayed an attitude to the rights of property of others which is discreditable to put it mildly.
In their writ the corporation claimed from Granada the delivery up to them of all the documents taken away by their servant and among other things for an injunction restraining them from unlawfully interfering with those documents meanwhile. There could have been only one reason for the corporation seeking that injunction, as I have no doubt Granada when they received the writ quickly appreciated. It was that the corporation knew the documents would, if not interfered with, carry tell-tale signs which would enable them upon inspection to discover the identity of their servant who had given them to Granada. So Granada before handing the documents over mutilated them so as effectively to erase the tell-tale signs. Whether this was done before or after the corporation warned Granada against such action as that is not known to this court. Either way it was a gross interference with the corporations rights of property which, since no iniquity on the part of the corporation is and could not have been alleged, was in my judgment totally unjustifiable granted that Granadas concern for press immunity prompted their wrongful action.
By this action they were taking the law into their own hands. They were attempting to pre-empt the courts determination of very important issues involving handing over of documents in combination with, as Granada must have known, disclosure of their confidential source.
Mr. Irvine, who argued Granadas case with skill, resourcefulness and refreshing frankness, argued that there never was an issue about the return of the documents. That depends upon what documents are in contemplation, the documents as handed to Granada or the same documents as mutilated by them. If Granada intended to hand over the documents in the condition in which they received them it has not been suggested that the source removed the tell-tale signs there would have been no issue. Since they did not do that, there was and is an issue about the proper handing over of documents which has yet to be resolved.
One further observation upon this aspect of the matter is of significance if not relevance. In removing the tell-tale signs Granada left open to themselves the choice of either paying the penalty for refusing to obey an order of the court to reveal the identity of the source or to obey it. The penalty upon a limited company for a refusal is limited to the payment of a fine.
By their act of mutilation of the documents alone Granada are in my judgment disentitled to immunity. It constituted a gross interference with the corporations rights of property.
Such a conclusion can conceivably be supported by directly likening [*1142] the mutilation of the documents to an attempt by him or those who did it to obstruct the course of justice. To act in that way is in a civil as well as in a criminal action a contempt of court.
In Morris v. Crown Office  2 Q.B. 114, 122 Lord Denning M.R. stated: The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society.
Mr. Irvine contended that because Granada have not disobeyed an order of the court and the documents themselves are not the subject matter of the corporations motion Granada have not in any way obstructed nor attempted to obstruct the course of justice. That this is an unattractive argument is easily demonstrated.
On March 7, 1980, the corporation by order amended their writ so as to include the relief sought in the motion before this court. What prompted them to seek leave to do this was the mutilated state of their documents when these were returned to them on February 28. Furthermore, the bundle of these documents as delivered was, so the corporation say, probably with justification incomplete. There were two or more documents missing. They have yet to be recovered from Granada. *
The mutilation of some documents and the probable retention by Granada of others was designed to thwart discovery of the identity of the source by the corporation in the event of Granada by order releasing to them all the documents in the state in which they had received them. Thus the court has been effectively prevented from determining the corporations claim for an injunction to restrain Granada from unlawfully interfering with their property and very likely also from effectively ordering Granada to hand over all the corporation.s documents received by them.
I have no doubt that the corporation were entitled to both the injunction and to the order and that the circumstances which have denied them these forms of relief would upon close scrutiny in contempt proceedings almost certainly be found to reveal an obstruction of the course of justice. Were it not for this obstruction these proceedings would not have come about.
Granada have indisputably not disobeyed any order of the court. But they anticipated being placed in the position of some day having to decide whether to obey an order embarrassing to them. The documents are not the subject matter of the motion in that an order for the recovery of them is being sought, but what unlawfully happened to them produced the motion. Moreover, in the disposal of the motion what happened to them is a matter of significance in the judicial process of exercising a discretion to compel or not to compel Granada to reveal their source.
I desire finally to speak of the issue of self-incrimination without being influenced one way or the other by its late appearance in Granadas defensive screen.
What do Granada have to fear from their source when and if he is forced into the light of day? That is the question. What can he say to their detriment which has not already been made known by
* This was denied by Granada.
[*1143] them? Is their claim to having received the documents in circumstances which did not involve dishonesty or criminal conduct suspect? They would surely prefer this court to believe that it is not.
The only crime which, according to Mr. Irvine, Granada fear they could be placed in jeopardy of being found guilty of committing is conspiracy to defraud. The particulars of the offence could be, he suggests, using documents in violation of the plaintiffs proprietary rights or something akin to that.
On the supposition that those particulars of an agreement could amount to a criminal conspiracy nothing more needs to be known than Granada have already revealed to form a prima facie case of guilt against them. The source is not required. He is the person unknown with whom they conspired. Nobody can be shielded from answering questions at any stage of proceedings because to do so would have a tendency to incriminate when he or they have already laid bare the facts of criminality. The element of dishonesty within the crime of fraud is found to exist if it does as a matter of legitimate inference from those facts. It is difficult to envisage how the source could damage Granada in this respect.
This consideration of self-incrimination does not stand alone. There are two other relevant matters which demand attention. They are as follows:
(1) There is no doubt that a limited company can be indicted for conspiracy. But the circumstances in which this can be done must be within those indicated by Lord Reid in Tesco Supermarkets Ltd. v. Nattrass  A.C. 153, 171. He said:
Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty ill holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn. Lennards case [Lennards Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd.]  A.C. 705 was one of them.
I should be surprised if any of those servants of Granada who have taken any part whatsoever in the acceptance and the use made of the documents could be said to be acting as the company so as to expose it to be charged with conspiracy.
(2) Agreements which are intended to result in the use of documents in violation of the proprietorial rights of someone who owns the documents and who is not party to the agreement are not universally recognised as criminal conspiracies. There is a reputable body of opinion which would not regard agreements of this kind as criminal. [*1144] To what extent if at all Granada have been sensitive to these two matters I do not know. If they were in their minds when the decision was taken to rely on the defence of self-incrimination their influence should have been strong enough to resist the temptation to do so.
In my view this claimed protection against self-incrimination although plausibly presented does not and could not reasonably be said to have arisen from genuine apprehensions of prosecution for a criminal offence. If it was, it was without foundation.
The submission of Mr. Hoffmann, the corporations counsel, that an order to disclose Granadas source is appropriate in the circumstances of this case is to my mind irresistible.
I agree with my Lords. I too would dismiss this appeal.
Appeal dismissed with costs.
Seven days for discovery of informants.
Application for leave to appeal to House of Lords refused.
Stay of execution of order until House of Lords have decided application.
If leave to appeal granted, stay to continue until appeal heard.
June 5. The Appeal Committee of the House of Lords (Lord Diplock, Lord Keith of Kinkel and Lord Scarman) allowed a petition by the appellants for leave to appeal.
APPEAL from the Court of Appeal.
Leonard Hoffmann Q.C. and David Kitchin for the respondents.
July 30. Lord Wilberforce, Viscount Dilhorne, *3 Lord Fraser of Tullybelton and Lord Russell of Killowen dismissed the appeal for reasons which their Lordships stated would be given at a later date. Lord Salmon reserved his opinion.
November 7.LORD WILBERFORCE. My Lords, on February 4, 1980, the appellants, Granada Television Ltd. (Granada), broadcast on a national television network a current affairs programme devoted to the steel strike. This strike, of the workers in the nationalised steel industry, had started in January 1980 and was one of great concern to the government and to the public. The programme, which lasted about half an hour and a replay of which we have seen, showed on the screen, and quoted from, a number of secret or confidential documents the property of the respondents, British Steel Corporation (B.S.C.), a nationalised undertaking, and a good
*3 Viscount Dilhorne who died on September 7 had completed the preparation of his opinion before his death. [*1166] deal was made of the achievement of Granada in securing these documents, called the steel papers, for public discussion. The revelation of them, irrespective of their contents, was no doubt intended to, and did, impart a dramatic effect to the programme. In addition, there was an appearance by the chairman of B.S.C., Sir Charles Villiers, who had put to him, and answered, some questions based on the papers.
The steel papers used in the programme were some 27 documents out of 250 or thereabouts which had been delivered to Granada on January 28, 1980, by a person, then unknown, who must have been an employee or former employee of B.S.C. and whose work entitled him or her to have access to highly classified documents. There is no doubt that many of them were confidential, indeed very confidential, relating as they did to internal action and discussions at a high level within B.S.C., and with the government, to financial and commercial facts which B.S.C. had not made public, and to other matters concerned with productivity and industrial relations. Quite clearly the person concerned had no right, and Granada knew he had no right, to hand them over and in doing so he may well have been guilty of an act of theft.
The documents were delivered to a representative of Granada without, it is said, any previous appointment with Granada, and Granada says that no inducement or payment was made in connection with them. We have, naturally, no knowledge of the sources motives and no right, or need, to speculate about them. The representative gave to the source a promise, on behalf of Granada, that no step would be taken that might reveal or risk disclosure of the sources identity.
This appeal raises the question whether in these proceedings brought by B.S.C. Granada can or should be ordered to disclose the identity of the source. Before considering it I must describe the procedure which has been followed by B.S.C. and the present status of the litigation.
On February 6, 1980 (I omit various communications which had taken place between B.S.C. and Granada which raise matters still in controversy), B.S.C. issued against Granada a writ and notice of motion claiming: an injunction against further breaches of confidence and copyright; an order for delivery up of the documents and copies thereof, an inquiry as to damages, and an account of profits. On the same day B.S.C. applied for and obtained an ex parte injunction restraining Granada from further publication or reproduction of the documents.
On February 28, 1980 (i.e. after the programme had been broadcast), by agreement between solicitors Granada purported to deliver the documents to the solicitors for B.S.C. On examination of them it was found that they were incomplete, portions having been cut out. Granada admits that this was done, on February 27, because it was thought that marks on the documents might reveal or risk revelation of the identity of the source. Whatever the reason, this mutilation of documents, which were undoubtedly B.S.C.s property and which they were incontestably entitled to recover, was a clear and deliberate violation of B.S.C.s rights. Granadas present argument seems necessarily to involve that they were entitled to mutilate the documents in order to protect the source.
On March 6, 1980, B.S.C. amended their notice of motion and their writ so as to claim an order that Granada make and serve on B.S.C.s solicitors [*1167]
an affidavit setting forth the names of all persons responsible for supplying Granada with the documents. B.S.C. contended, and their counsel at the hearing strongly stressed this point, that it was important for them to ascertain who this person was in order to prevent further misuse by him of B.S.C. documents and in order to dispel the cloud of suspicion hanging over those of its staff who might have handed the documents over. This immediately raised the issue, whether Granada can be compelled by judicial process to reveal the source of their information.
The motion came before Sir Robert Megarry V.-C. on March 11. He decided that no public interest in the media not being forced to disclose their sources of information at the trial of an action had yet been recognised and that there were insufficient grounds for holding that such an interest ought to exist. In so far as the case was one for the balancing of public interests, or for the exercise of discretion, he held that the interest of B.S.C. in having the identity of the source disclosed should prevail. He also held that Granada were not protected against disclosure on the ground of possible self-incrimination. He ordered that Granada should forthwith state on affidavit the names of the persons responsible for supplying them with the documents. On this decision, it was agreed, and so ordered, that the motion should be treated as the trial of the action. B.S.C. indicated that they would not pursue any claim for damages. They were awarded the costs of the action.
The Court of Appeal, on appeal by Granada, heard the appeal on April 18. They upheld the decision of Sir Robert Megarry V.-C. Lord Denning M.R. held that there was a public interest in seeing that newspapers should not be compelled to disclose their sources of information. This principle, however, was not absolute: it is granted on condition that the newspaper acts with a due sense of responsibility. His Lordship, after examining the conduct of Granada, held that they had not so acted: they had made an unfair use of confidential information in leaving it so late to tell B.S.C. that the papers were to be used, in the conduct of the interview with Sir Charles Villiers, and in their mutilation of the papers.
Templeman L.J. undertook to balance the public interest in the attainment of justice against the public interest in the media preserving their sources. He held that no principles of public policy justified resistance to B.S.C.s claim to discover the identity of B.S.C.s employee who broke his promise to B.S.C. and enabled Granada to breach their duty to B.S.C. He also rejected the defence based on possible self-incrimination. Watkins L.J. opened his judgment with a general proposition that the media are in principle immune from disclosing their confidential sources of information. He later held however that this principle could be and was outweighed by other competing interests. The Court of Appeal gave Granada seven days to disclose the source.
So all the learned judges so far have decided in favour of disclosure of the source. Granadas final appeal was to this House. The hearing took place in July 1980, having been expedited at the request of B.S.C., when the decision was announced. I now give the reasons which, on the arguments then heard, induced me to suggest dismissal of the appeal. Before coming to what I regard as the crucial point for disposal of the case I would make some general observations. [*1168]
First, there were appeals, made in vigorous tones to such broad principles as the freedom of the press, the right to a free flow of information, the publics right to know. In Granadas printed case we find quotations from pronouncements of Sheridan in Parliament and from declarations of eminent judges in cases where the freedom of the press might be involved. I too would be glad to be counted among those whose voice had been raised in favour of this great national possession a free press: who indeed would not? But this case does not touch upon the freedom of the press even at its periphery. Freedom of the press imports, generally, freedom to publish without pre-censorship, subject always to the laws relating to libel, official secrets, sedition and other recognised inhibitions. It is not necessary to define the concept more closely, for it is clear and not disputed by Granada, that B.S.C. could, if they had acted in time, have obtained from the courts an injunction against publishing or reproducing any of the contents of the documents. I quote from Granadas printed case paragraph 3 (vii) such an injunction [restraining Granadas use of the documents] would certainly have been granted. This position was maintained by counsel at the bar. In other words, Granada do not make the case that they had the right to publish. The question before us, as to disclosure of the source, is another question altogether.
Then there is the alleged right to a free flow of information, or the right to know. Your Lordships will perceive without any demonstration from me that use of the word right here will not conduce to an understanding of the legal position. As to a free flow of information, it may be said that, in a general sense, it is in the public interest that this should be maintained and not curtailed. Investigatory journalism too in some cases may bring benefits to the public. But, granting this, one is a long way from establishing a right which the law will recognise in a particular case. Before then it is necessary to take account of the legitimate interest which others may have in limiting disclosure of information of a particular kind. I shall return to this point later. As to an alleged right to know, it must be clear that except in a totally open society (if any such exists) limitations on this not only exist but are considerable, whether one is concerned with the operations of government, or of business, ones neighbours affairs or indeed any other activity. To keep to the concrete, as regards the British Steel Corporation, the conduct of its affairs and the disclosures and reports which have to be made, are, as one would expect of a public body, regulated by statute, now by the Iron and Steel Act 1975. The legitimate interest of the public in knowing about its affairs is given effect to through information which is a statutory duty to publish and through reports to the Secretary of State who is responsible to Parliament. That some of the internal activities of B.S.C. at particular times are of interest to the public there can be no doubt. But there is a wide difference between what is interesting to the public and what it is in the public interest to make known.
Thirdly, as to information obtained in confidence, and the legal duty, which may arise, to disclose it to a court of justice, the position is clear. Courts have an inherent wish to respect this confidence, whether it arises between doctor and patient, priest and penitent, banker and customer, between persons giving testimonials to employees, or in other relationships. A relationship of confidence between a journalist and his source is in no [*1169] different category: nothing in this case involves or will involve any principle that such confidence is not something to be respected. But in all these cases the court may have to decide, in particular circumstances, that the interest in preserving this confidence is outweighed by other interests to which the law attaches importance. The only question in this appeal is whether the present is such a case.
One final point. There is an important exception to the limitations which may exist upon the right of the media to reveal information otherwise restricted. That is based on what is commonly known as the iniquity rule. It extends in fact beyond iniquity to misconduct generally: see Initial Services Ltd. v. Putterill  1 Q.B. 396. It is recognised that, in cases where misconduct exists, publication may legitimately be made even if disclosure involves a breach of confidence such as would normally justify a prohibition against disclosure. It must be emphasised that we are not in this field in the present case; giving the widest extension to the expression iniquity nothing within it is alleged in the present case. The most that it is said the papers reveal is mismanagement and government intervention. Granada has never contended that it had a right to publish in order to reveal iniquity.
So the question is, and remains, whether the court at the instance of B.S.C., would compel disclosure of the source. This in turn involves the questions (a) whether B.S.C. can obtain this relief by the procedure adopted in this case, (b) whether, if so, any balancing of the public interest and considerations on either side is required and if so with what result. In addition, we have to consider (c) whether Granada can refuse to disclose on the ground that to do so might incriminate them.
Granadas main argument in this House was directed to points (a) and (c) above, that is to say, largely of a technical character. They are none the worse for that, but they do bring out the limitations of the reasons we are required to give.
I now come more particularly to the law relevant to this case. I start with the proposition that the media of information, and journalists who write or contribute for them, have no immunity based on public interest which protects them from the obligation to disclose in a court of law their sources of information, when such disclosure is necessary in the interest of justice. No such claim has ever been allowed in our courts, and such attempts as have been made to assert such an immunity have failed. A claim for immunity was made before the Parnell Commission in 1888 (C. 5891) and flatly rejected by Sir James Hannen sitting with two other judges. In the two cases arising out of the Vassall inquiry, in which the usual argument was strongly put that if disclosure were ordered in such cases the sources of information would dry up, the claim was firmly repelled (Report of the Tribunal appointed to inquire into the Vassall Case and Related Matters, Cmnd. 2009 (1963)). In Attorney-General v. Clough  1 Q.B. 773, 788, Lord Parker C.J. expressed the clear opinion that no such immunity had been recognised or existed. In Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477 a similar claim in respect of communications between journalists and sources of information was rejected by the Court of Appeal. Lord Denning M.R. in a classic passage said, at pp. 489-490: [*1170]
But then it is said that however relevant these questions were and however proper to be answered for the purpose of the inquiry, a journalist has a privilege by law entitling him to refuse to give his sources of information . It seems to me that the journalists put the matter much too high. The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done or, in the case of a tribunal such as this, in a proper investigation being made into these serious allegations. If the judge determines that the journalist must answer, then no privilege will avail him to refuse.
In McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73, a case concerned with a tribunal of inquiry into allegations of bribery, a claim to immunity for a journalist was made and rejected by the High Court. memorable judgment was given by Dixon J. rejecting the claim, and dealing also with the so-called newspaper rule (see below). Passages from this judgment are cited by my noble and learned friend Viscount Dilhorne, and I shall not repeat them, but venture to emphasise their force.
All these authorities (and there is none the other way before this case) came down firmly against immunity for the press or for journalists. To contend that in principle, journalists enjoy immunity from the obligation to disclose which may however be withheld in exceptional cases is, in my opinion, a complete reversal of the rule so strongly affirmed.
It is said that Attorney-General v. Clough  1 Q.B. 773 and Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477 were exceptional in that disclosure was ordered because the security of the state required it. But I do not think that these cases can be disposed of in this way. The tribunal certified merely that the questions were relevant and the two cases based their decision on relevancy. So too with the McGuinness case, 63 C.L.R. 73. Considerations as to security arose, if at all, with reference to the courts ultimate discretion. That the court has such a discretion I accept and I shall consider it in due course.
The only support for reversal of this rule is to be found at least by implication, in some passages in the judgments of the Court of Appeal in this present case. But these must be read in the light of their decision, on the whole matter, that disclosure should be ordered. I do not think that Lord Denning M.R. should be understood as departing from his judgment in the Mulholland case  2 Q.B. 477 and from
[*1171] every reported case. Such a reversal would place journalists (how defined?) in a favoured and unique position as compared with priest-confessors, doctors, bankers and other recipients of confidential information and would assimilate them to the police in relation to informers. I can find nothing to encourage such a departure even with the qualifications sought to be introduced to the general principle asserted.
Lord Dennings judgment in the Mulholland case makes two further points. First, that it is not for the media alone to be the judges of the public interest. That is the task of the courts. Secondly, the qualification is made, and strongly stated by Lord Denning M.R., that disclosure must be necessary to enable justice to be done. The same point is made by Dixon J. in McGuinness v. Attorney-General of Victoria, 63 C.L.R. 73. The existing position in law is therefore, in my view, not open to doubt. Indeed I am surprised that it should be thought open to question at this time.
Then as to procedure. The present proceedings, now that all other claims against Granada have been disposed of, are simply for an order that Granada disclose the identity of the person who handed over the documents. This form of action is based upon the ancient bill of discovery in equity which has been given new life by the decision of this House in Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133, since followed in a number of cases, e.g. R.C.A. Corporation v. Reddingtons Rare Records  1 W.L.R. 1445 and Loose v. Williamson (Note)  1 W.L.R. 639.
This case had itself followed other decisions of which the most important, subsequent to the Supreme Court of Judicature Act 1873, was Orr v. Diaper (1876) 4 Ch.D. 92. In that, and in earlier cases, the plaintiff seeking discovery had a cause of action against the immediate defendant, and wished to obtain the name of a third party with a view, either to joining him in the proceedings, or to bringing a separate action. In the Norwich Pharmacal case  A.C. 133 it was held that the remedy extended to a case where the plaintiff had no direct cause of action against the immediate defendant here, of course, he has.
Their Lordships, after an extensive review of previous authorities, expressed the principle in very general terms:
if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person wronged by disclosing the identity of the wrongdoers: see per Lord Reid at p. 175.
The words through no fault of his own relate of course to that actual case: the present is a fortiori. So on the face of it the plaintiffs are entitled to the remedy.
But Mr. Neill Q.C., for Granada, argued that the remedy of, in effect, a bill of discovery ought not to be applied to a case such as the present. His grounds were, I think, as follows. Historically there is no case of such an action having been brought against a newspaper, or in a breach of confidence case. Yet, in the 18th to 19th centuries many opportunities [*1172] must have arisen for doing so, if the action lay. The press was, then as now, eager to publish any information, the more sensational the better, which it had obtained from confidential sources, and, then as now, breaches of confidence or leaks were of common occurrence. The failure or abstinence to invoke such proceedings must, it is said, be taken to reflect an opinio juris that no such proceedings could be brought. That they could not be brought is supported by some positive indications, in decided cases and in statutes.
First: in the well known case of Abernethy v. Hutchinson (1825) 1 H. & Tw. 28, concerned with the unauthorised publication of notes of a surgeons lectures, Lord Eldon L.C. is reported as saying that he had no right to require the defendants (the publishers) to inform how they acquired the material: see pp. 34, 37. Lord Eldon L.C. must, of course, have been well aware of the existence and scope of a bill of discovery and if, while knowing of its existence, he thought that it was limited to certain cases, or that it did not apply to certain cases, he would surely have said so. It seems more reasonable to attribute what he said to the absence of any such bill from the proceedings before him. There would indeed have been little interest for Mr. Abernethy in suing one of his pupils: what he was concerned with was to prevent the publication of the lectures.
Then, in the equally well known case of Prince Albert v. Strange (1849) 1 H. & Tw. 1, another case of breach of confidence, there was no consideration of the possibility of a bill of discovery. One would not expect there to be. The whole question was as to the Princes right to restrain publication of unpublished etchings and of a catalogue which listed some made by Queen Victoria. It was clear enough that the etchings had either been surreptitiously taken from the Private Apartments, or obtained from one Brown. No further investigation of the precise means of abstraction was called for or would have served any purpose.
Secondly, in support of the proposition that a bill of discovery was never thought to be available against a newspaper, Mr. Neill relied on the Newspaper Stamp Act 1836 (6 & 7 Will. 4, c. 76) (re-enacted 32 & 33 Vict. c. 24). This specifically enabled a bill of discovery to be filed in order to discover the name of the printer, publisher or proprietor of a newspaper. The fact that specific legislation was thought necessary for this purpose demonstrated, he said, that the general remedy was not available. The wording of the enactment is, however, in my opinion against him. The relevant section (section 19) starts with the words if any person shall file any bill in any court for the discovery of the name etc., and goes on to provide that the bill shall not be demurrable and that the defendant shall be compellable to answer. This, to my mind, supports rather than negatives the possibility of filing a bill of discovery against a newspaper, and suggests that the purpose was to remove the privilege against self-incrimination. I think that this is confirmed by the judgment of du Parcq J. in Hillmans Airways Ltd. v. S.A. dEditions Aéronautiques Internationales  2 K.B. 356, 359.
Thirdly, Mr. Neill relied upon the so-called newspaper rule which
[*1173] protects newspapers, and by analogy broadcasting companies: see Broadcasting Corporation of New Zealand v. Alex Harvey Industries Ltd.  1 N.Z.L.R. 163 against being compelled to disclose their sources through interrogatories. Much reliance was placed on this rule as showing that newspapers have, in the law, been treated as a special case. I had prepared an examination in detail of this rule and of the authorities that related to it: since doing so I have had the benefit of reading a draft of the speech prepared by my noble and learned friend Lord Fraser of Tullybelton. I am entirely content to accept his argument and to express agreement with his conclusion that the rule is of no help to us here. This is not an action for libel or slander, it is based on breach of confidence. The argument that a plaintiff by proceeding to trial against the defaming newspaper is likely to get all the relief he needs, and therefore does not need to sue the source, cannot be transferred to breach of confidence cases. The interest in fact works strongly the other way. The claim against the newspaper may be of little value it is so here whereas the weightier claim by far may be against the employee. And if the test is to see whether, at the trial, the plaintiff has got, against the newspaper, all that he may reasonably require and, only if he has not, to force disclosure so that he may sue the source, this test is certainly satisfied. Any proceedings against Granada have in effect been terminated; the motion has been treated as the trial of the action. Little enough has been gained, a partial return of the documents and some costs. There is nothing more to be obtained against Granada. But the plaintiffs still have a real unsatisfied claim against the source, to deprive them of which would require justification.
In the end, although many of the supporting points made by Mr. Neill can be, as I think, answered, the case against use of the Norwich Pharmacal procedure  A.C. 133, still seems to be formidable. Though perhaps rather technical and procedural, it still appeared to me to be the strongest weapon in the appellants armoury. But in the end I am not persuaded that we ought to deny the plaintiffs their remedy. The cases are indecisive and only support an argument a silentio: the statute of 1836 seems to have been passed for a different purpose. Abstinence from using this weapon hitherto can be explained by the fact that it is only exceptionally that the aggrieved person would have, and could demonstrate, a real interest in suing the source. If the present is such a case (and I think it is), it is to that extent exceptional and decision on it would not open floodgates to actions against newspapers, still less support any general argument that the confidence existing between journalists and their sources is something which the courts will not respect, still less stifle investigation. To succeed in proceedings aimed at compelling disclosure the plaintiff will always have to satisfy the court that he has a real grievance, even after suing the newspaper, which, in the interest of justice, he ought to be allowed to pursue, and that this ought, in the particular case, to outweigh whatever public interest there may be in preserving the confidence. It is possible that, if the plaintiff succeeds here, fewer leaks will occur, though that must be speculation. But I do not think that judicially we are able to place a value on this.
[*1174] Leaks may vary all the way from mere gossip or scandal to matters of national or international importance. A general proposition that leaks should be encouraged, or at least not discouraged, cannot be made without weighing the detriments in loss of mutual confidence and cooperation which they involve. The public interest involved in individual leaks can be taken account of and weighed by the court in deciding whether to grant the remedy in a particular case.
There remains one further argument again of a technical character. It is said that the relief, being in the nature of discovery, can only be granted in aid of some existing proceedings, or at the most in aid of intended proceedings. This is supported by the admirably brief authority of Cardale v. Watkins (1820) 5 Madd. 18 but there may be a middle ground between. the mere gratification of curiosity which is discountenanced, and in aid of some other proceeding either pending or intended which is permitted. Here it is claimed that B.S.C. desires to know the identity of the source, not for any actual proceedings (there are and could be none until a name is disclosed), nor for any intended proceedings: their purpose it is said is only to be able to dismiss the employee and/or to deprive him of his pension. Now I would be prepared if necessary to hold that, given a cause of action, an intention to seek redress by court action or otherwise would be enough, and there is support for tis: see Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133, 188, per Viscount Dilhorne and Post v. Toledo, Cincinnati and St. Louis Railroad Co. (1887) 11 N.E. Rep. 540. But in any event I find that this argument fails on the facts. Clearly B.S.C. had a cause of action against the source. They cannot identify it unless Granada reveals the name. Their representative stated on affidavit that B.S.C. wished to prevent further disclosures. This might involve proceedings for an injunction. B.S.C. have been put to expense by reasons of the sources tortious action. They have not renounced any intention to proceed against him for damages, the suggestion that their only intention was to dismiss him is an assertion of Granada and nothing more. The conditions for the granting of the remedy therefore exist.
I come then to the final and critical point. The remedy (being equitable) is discretionary. Although, as I have said, the media, and journalists, have no immunity, it remains true that there may be an element of public interest in protecting the revelation of the source. This appears from the speeches in the Norwich Pharmacal case  A.C. 133 (see per Lord Reid at p. 175, Lord Morris of Borth-y-Gest at p. 182, Viscount Dilhorne at p. 188 and Lord Cross of Chelsea at p. 199) and from the judgments of the New Zealand Court of Appeal on the newspaper rule: Broadcasting Corporation of New Zealand v. Alex Harvey Industries Ltd.  1 N.Z.L.R. 163. The court ought not to compel confidence bona fide given to be breached unless necessary in the interests of justice: see Science Research Council v. Nasse  A.C. 1028. There is a public interest in the free flow of information, the strength of which will vary from case to case. In some cases it may be very weak; in others it may be very strong. The court must take [*1175] this into account. How ought the discretion which the court undoubtedly has to be exercised in this case? Sir Robert Megarry V.-C. considered this and exercised it in favour of B.S.C. I would, for myself, give somewhat greater weight to the public interest element involved in preserving, qua the relevant information, the confidence under which it was obtained than he did. But I think that even so the balance was strongly in B.S.C.s favour. They suffered a grievous wrong, in which Granada itself became involved, not innocently, but with active participation. To confine B.S.C. to its remedy against Granada and to deny it the opportunity of a remedy against the source, would be a significant denial of justice. Granada had, on its side, and I recognise this, the public interest that people should be informed about the steel strike, of the attitude of B.S.C., and perhaps that of the government towards settling the strike. But there is no iniquity here no misconduct to be revealed. The courts, to revert to Lord Denning M.R.s formulation in Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477, had to form their opinion whether the strong public interest in favour of doing justice and against denying it, was outweighed by the perfectly real considerations that Granada put forward. I have reached the conclusion that it was not.
Finally, as to the risk of self-incrimination, I agree with the courts below in rejecting this argument. I understand that others of your Lordships will expand upon the point, but with all respect to counsels well-developed argument, I shall simply express my agreement with the judgment of Templeman L.J. on this point.
For these reasons I was in favour of dismissing the appeal.
VISCOUNT DILHORNE. My Lords, Mr. Boulton, the Head of Current Affairs at Granada Television, in his affidavit of March 10,1980, stated that a few days before the date on which it had been decided to televise a World in Action programme on the steel industry, someone delivered to Granada documents which were the property of the British Steel Corporation (B.S.C.). This, he swore, was done without any prior agreement and not as the result of any solicitation on the part of Granada. Their unexpected receipt must have come as manna from heaven to the producer of the programme which was then built around them and was called The Steel Papers.
Granada promised the donor of the documents that no step would be taken that might reveal or risk the disclosure of his identity. They must have known that he had no right to give them the papers and that they had no right to use them. There were some 250 documents, most, if not all, of which were highly confidential. Some had the word secret stamped on them in large letters.
After their receipt on January 28, 1980, Mr. Boulton says that he went through them and decided that there were a number of important points arising from them which were of considerable public interest. It is not, of course, the case that publication of material however interesting to the public is necessarily in the public interest.
Five days after their receipt, during the night of Sunday, February 3, the producer of the programme spoke to Mr. Melvin of B.S.C. on the telephone and gave him a list of 27 documents of B.S.C.s which it was proposed to [*1176] use in the broadcast which was to take place the following evening. This was the first intimation that B.S.C. had that documents of theirs were in the possession of Granada. It was not until some time later that B.S.C. discovered that Granada had some 250 documents of theirs. The next day, February 4, B.S.C. received from Granada an outline of the contents of the World in Action programme it was proposed to televise that evening. That outline included details of B.S.C. internal papers of which copies have been passed to us (Granada) in the past few days, and to which the programme will refer.
We were shown what was broadcast. On a table a number of documents marked secret were displayed and selected extracts from some of them were shown. The documents did not reveal, and the contrary has not been suggested, the commission of any crime or any iniquity on the part of B.S.C. At most they show mismanagement, that it was wrong to put the whole blame for the state of the industry on low productivity on the part of the workers and that it was not true that there had been no government intervention.
After the broadcast B.S.C. demanded a number of undertakings from Granada. These were not forthcoming and on February 6, B.S.C. issued a writ claiming, inter alia, delivery up to them of their documents held by Granada. About 250 were then delivered up. Many of them had been mutilated by cutting off anything on them which might have led to the identification of the person who gave them to Granada. It was not suggested that Granada had any right to do this.
In March 1980 the writ was amended to include a claim for an order that Granada should disclose the names of those who supplied the documents to them. On April 2, Sir Robert Megarry V.-C. made such an order. Granada appealed to the Court of Appeal without success and from there to this House.
We were asked to give and we gave a speedy hearing to the appeal. At the conclusion of the argument we were pressed to give our decision without delay and we have done so. We have now to state our reasons for our decision.
I think that I should begin by emphasising that this case, despite the resounding rhetoric so liberally employed since our decision was announced, does not affect the freedom of the press. That freedom, the exercise of which is, of course, subject to the rule of law and abuse of which may be held to be wrongful and even criminal, e.g. the publication of an obscene libel, cannot be in any way affected by our decision. What is said is that ordering the disclosure by Granada of the name of the person who gave them the documents will deter others from leaking information to the press through fear that their names may be disclosed, and that there is a public interest in the free flow of information to the press which will be restricted, if not stopped, if the identity of the donor of the documents is disclosed. This public interest in the free flow of information involves the conclusion that there is a public interest in the leakage of confidential information to the press. My Lords, it must not be forgotten that there is a well recognised public interest in the preservation of privacy and confidentiality. If there be a public interest in the free flow of information and the continuance of [*1177] leaks to the press, then it will not infrequently be the case that there will be a conflict of public interest.
Granada have not asserted that they had any right to use B.S.C.s confidential documents. They do not dispute that if B.S.C. had sought an injunction to restrain them from using the documents in their programme, they would have had no answer to that claim. Nor have they sought to justify the conduct of the person who gave them the documents. All that Mr. Boulton has had to say about that is that the individual concerned, whose identity we were told Mr. Boulton did not know, apparently gave them out of a keen sense of indignation about the dealings between B.S.C. and the government before and during the strike. If that was his reason, it explains but does not justify his conduct. There are times when a breach of confidence by an employee is and can be justified, as, for instance, when it reveals some iniquity or crime but it was not suggested that it could be in this case.
Granada do not dispute that B.S.C. has suffered a wrong at the hands of the donor of the documents and at their hands but they say that they cannot be compelled to give his name. If this was right, it would mean that B.S.C. would be left without a remedy for the wrong inflicted on them. They said they could not themselves trace him and until he is identified, they may still be employing an untrustworthy and disloyal employee and suspicion will continue to attach to those other employees who in the course of their duty saw these confidential papers.
Granada based their refusal to disclose the name on two grounds. First. they contended that newspapers and broadcasting companies, the media, are in a privileged position under the law of England and cannot lawfully be ordered to state the source of any information that comes into their possession. Secondly, they say that it is a well recognised and established rule of law that a man cannot be compelled to incriminate himself and that if they gave the name of the man who gave them the documents, it would tend to incriminate them.
I propose to consider this second contention first.
In In re Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 (No. 2)  A.C. 547 Lord Denning M.R. in the Court of Appeal said, at p. 574:
No one is bound to furnish evidence against himself. It (the common law) says: If a witness claims the protection of the court, on the ground that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer: see Reg. v. Garbett (1847) 1 Den.C.C. 236, 257 by nine judges after two arguments.
Lord Denning M.R. went on to say that if the court thinks that he has no reasonable ground for that belief, it will overrule that objection and compel him to answer, but if it appears that a witness is at risk of furnishing evidence against himself if he answers, then great latitude should be allowed to him in judging for himself the effect of any particular question: see Reg. v. Boyes (1861) 1 B. & S. 311, 330. He went on to say that there must be a real and appreciable risk of proceedings being taken against him. [*1178] With these observations, I expressed my agreement (p. 627), and the rule applies to a company just as it does to an individual: Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd.  2 K.B. 395.
Counsel for Granada submitted that there was a real and appreciable risk of Granada being prosecuted for two offences, handling stolen goods, contrary to section 22 of the Theft Act 1968 and conspiracy to defraud by infringing B.S.C.s copyright in the documents. He laid most stress on the possibility of a prosecution for handling. For such a prosecution to succeed, it would have to be proved that Granada dishonestly received the documents knowing them to have been stolen and that involves proof that the person who gave them to Granada was a thief, that is to say, had dishonestly appropriated property of B.S.C. with the intention of permanently depriving B.S.C. of it. It was not suggested that the person who took the documents had any right to do so and prima facie in taking them, he acted dishonestly. It was not suggested that they were merely loaned to Granada and it may well be that a prima facie case of theft might be established. Granada must have known that the giver of these confidential documents had no right to dispose of them by handing them to Granada and that they had no right to use them. Did they dishonestly receive them? Mr. Boulton in his affidavit swore that Granada was firmly of the view that it received the documents in circumstances not involving any dishonesty or criminal conduct. Despite this assertion I am prepared to accept Granadas counsels submission that there was a real and appreciable risk of Granada being prosecuted for handling stolen goods.
If it be the case that there was such a risk, would the disclosure of the name of the supplier render whatever case there might be against Granada.ada any stronger? I do not see that it could and so I conclude that disclosure of the name would not tend to incriminate Granada of this offence.
The charge of conspiracy to defraud would presumably involve proof of an agreement between the supplier of the documents and Granada that the copyright in them should be infringed by their use on television. Though they must have been given with the intention that Granada should make some use of them, I can see difficulty in establishing any agreement that they should be used in that way. But if there was a real and appreciable risk of prosecution for this offence, how is the case strengthened by the disclosure of the suppliers identity? I do not see that it can be.
In my view Granadas claim that disclosure of the name would tend to incriminate them should be rejected.
I now turn to the other ground advanced by Granada.
The contention that the media cannot be required to disclose the source of information it has received was based on the long established rule, conveniently called the newspaper rule that in libel actions against newspapers interrogatories directed to discovering the source of information are not permitted. In Adam v. Fisher (1914) 30 T.L.R. 288 Buckley L.J. said that it seemed to him that two answers might be given to the question why in this respect newspapers were treated differently from others. One was that it might be assumed that the object of such interrogatories was to get the name of the informant in order to sue him, and that was improper, and the other was that disclosure of the informants identity was not in the [*1179] public interest. He said that in Plymouth Mutual Co-operative and Industrial Society Ltd. v. Traders Publishing Association Ltd.  1 K.B. 403 Vaughan Williams L.J. seemed to have thought that the privilege of not having to answer such interrogatories might be raised in matters interesting to a number of the public. In Lyle-Samuel v. Odhams Ltd.  1 K.B. 135 Bankes L.J. referred to these observations of Buckley L.J. and said that it was not necessary to discuss the rule or the wisdom of it for it was well established. While he accepted its existence, Scrutton L.J. clearly did not like it.
Implementing a recommendation of the Porter Committee on Defamation in 1948 (Cmd. 7536), Ord. 31, r. 1A (now Ord. 82, r. 6) of the Rules of the Supreme Court was made forbidding interrogatories as to a defendants sources of information or grounds of belief in all actions for libel and slander where fair comment or publication on a privileged occasion was pleaded. The committee thought that such interrogatories added considerably to the cost of litigation, imposed considerable hardship on a defendant and were seldom of any practical value.
Whether the newspaper rule originated for those reasons and not on grounds of public interest, it is not necessary to consider. What is important is that that rule only applied to interlocutory proceedings in actions for libel and slander. No case was cited to us in which it had been held that the proprietors and editors of newspapers were not compellable at a trial to disclose the source of their information if the interests of justice required it and in none of the cases cited was any support to be found for the contention that newspapers enjoyed such a privileged position.
The claim to such a privilege seems first to have been advanced by the editor of The Times before the Parnell Commision (C. 5891). Sir James Hannen P. who was a member of the commission said that there was no such privilege. In Australia the editor of a newspaper called to give evidence before a Royal Commission claimed that he could not be compelled to disclose the source of information confidentially obtained. He asserted that he would not be compellable to do so at the trial of an action. The High Court of Australia in McGuinness v. Attorney-General of Victoria 63 C.L.R. 73 held that no privilege attached to proprietors of newspapers, editors and writers which entitled them to refuse to disclose at a trial their sources of information. In an illuminating judgment which is so relevant to the present case that I propose to quote from it at some length, Dixon J. said, at pp. 102-103:
No one doubts that editors and journalists are at times made the repositories of special confidences which, from motives of interest as well as of honour, they would preserve from public disclosure, if it were possible. But the law was faced at a comparatively early stage of the growth of the rules of evidence with the question bow to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as [*1180] husband and wife, attorney and client an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected.
He went on to say, at pp. 104-105:
although all authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action from the necessity of deposing to the source of the information contained in his publication or to statements made in confidence to him in the exercise of his calling, yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters. By a long line of cases a practice is recognised of refusing to compel such a defendant to disclose the name of the writer of an article complained of as a libel or of the sources of information he has relied upon The cases are collected in Lyle-Samuel v. Odhams Ltd.  1 K.B. 135 and South Suburban Co-operative Society Ltd. v. Orum  2 K.B. 690, which are the latest authorities upon the application of the rule. The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, &c., of a newspaper to compel discovery of the name of his informants. It rests not on a principle of privilege but on the limitations of discovery, to quote the comment of Professor Wigmore who expresses himself somewhat strongly against the pretensions to a privilege on the part of journalists (Treatise on Evidence, 2nd ed., vol. 5, sec. 2286, n. 7).
In my opinion the existence of the practice and the reasons on which it is based can form no ground for holding that a lawful excuse existed for the appellants refusal to answer as to his sources of information. Lawful excuse means a reason or excuse recognised by law as sufficient justification for a failure or refusal to produce documents or answer questions.
No such claim to privilege was advanced before the Bank Rate Tribunal though if my recollection is correct, it might well have been. Before the Vassall Tribunal, Report of the Tribunal appointed to inquire into the Vassall Case and Related Matters (1963) (Cmnd. 2009), it was advanced and three journalists, having refused to disclose their sources, were proceeded against for contempt. Two appealed to the Court of Appeal and one argument then put forward as summarised by Lord Denning [*1181] M.R. in Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477 was similar to that advanced in this case. Lord Denning said, at pp. 489-490:
But then it is said that however relevant these questions were and however proper to be answered for the purpose of the inquiry, a journalist has a privilege by law entitling him to refuse to give his sources of information. The journalist puts forward as his justification the pursuit of truth. It is in the public interest, he says, that he should obtain information in confidence and publish it to the world at large, for by so doing he brings to the public notice that which they should know. He can expose wrongdoing and neglect of duty which would otherwise go unremedied. He cannot get this information, he says, unless he keeps the source of it secret. The mouths of his informants will be closed to him if it is known that their identity will be disclosed. So he claims to be entitled to publish all his information without ever being under any obligation, even when directed by the court or a judge, to disclose whence he got it. It seems to me that the journalists put the matter much too high. The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered . If the judge determines that the journalist must answer, then no privilege will avail him to refuse.
In that case the claim to privilege was rejected as it was by Lord Parker C.J. in Attorney-General v. Clough  1 Q.B. 773 in relation to the third journalist. In the light of these authorities the legal position can, I think, be summarised as follows. Save in respect of the administration of interrogatories in libel and slander actions, newspapers have never been held to enjoy the privilege of not being compellable to disclose the sources of their information. Every time that that claim has been put forward it has been rejected. Since 1949 newspapers no longer receive any special treatment with regard to interrogatories.
The present action is in substance an action for discovery. Although the question which has now to be decided came before Sir Robert Megarry V.-C. on an interlocutory motion, no other relief than an order for the disclosure of the identity of Granadas informants is now sought.
If it is the case, as in my view it is, that in law newspapers are not entitled to any privilege at a trial, before a Royal Commission or a tribunal set up under the Tribunals of Inquiry (Evidence) Act 1921 with regard to the disclosure of the names of informants, I can find no satisfactory basis for concluding that they are entitled to any exceptional treatment in respect of an action for discovery. If an order could properly be made against an individual unconnected with the media for the [*1182] disclosure of the donors identity if the documents had been given to him, then in my opinion such an order can properly be made against Granada. Conversely if no such order could be made against such an individual, it cannot be made against Granada.
In Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133 the Customs and Excise Commissioners knew from documents lodged with them who were the importers of a substance called furazolidone. Norwich Pharmacal were the owners of the patent relating to that chemical. None of the importations of it were licensed by Norwich Pharmacal and in relation to the majority, if not all, of them the importations constituted an infringement of their patent. Unless Norwich Pharmacal could secure disclosure by Customs and Excise of the identity of the importers, they could not take any steps to protect their patent for unless they obtained that information from Customs and Excise, they could not identify the wrongdoers. They started proceedings against Customs and Excise and though other claims were indorsed on the writ, it was agreed at the trial before Graham J. that the proceedings could be treated as an action for discovery of the identity of the importers.
In this House three questions had to be decided. First, could the respondents, Customs and Excise, who were not themselves wrongdoers, be ordered to disclose the names of the importers who, the validity of the patent being admitted, were wrongdoers; secondly, in the exercise of the discretion vested in the court, should they be ordered to do so; and thirdly, were the respondents prohibited from disclosing that information.
The House answered the first two questions in the affirmative and the third in the negative.
While it is not necessary to refer to the cases then considered, I think that the following passages from the speeches can usefully be cited. Lord Reid said, at p. 174:
So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some documents relating to it in his possession. But the respondents are in an intermediate position. Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?
He thought that the observations of Lord Romilly M.R. and Lord Hatherley L.C. in Upmann v. Elkan (1871) L.R. 12 Eq. 140; L.R. 7 Ch.App. 130 pointed to:
a very reasonable principle that if through no fault of his own person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, 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. (p. 175)
Lord Morris of Borth-y-Gest said at p. 178: [*1183]
It is not suggested that in ordinary circumstances a court would require someone to impart to another some information which he may happen to have and which the latter would wish to have for the purpose of bringing some proceedings. At the very least the person possessing the information would have to have become actually involved (or actively concerned) in some transactions or arrangements as a result of which he has acquired the information.
He posed the question whether there was any reason in that case
why the court, in the interests of justice, and in the absence of any real doubt that certain wrongdoers are enjoying a quite fortuitous protection, should not authorise and require the commissioners to disclose the names?
and he cited with approval, at p. 180, the words of Sir Charles Hall V.-C. in Orr v. Diaper, 4 Ch.D. 92, 96:
In this case the plaintiffs do not know, and cannot discover, who the persons are who have invaded their rights, and who may be said to have abstracted their property. Their proceedings have come to a deadlock, and it would be a denial of justice if means could not be found in this court to assist the plaintiffs.
I said at p. 188 that it was far too late to challenge the decision in Orr v. Diaper and that that case decided that discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it and that it mattered not whether his involvement was innocent and in ignorance of the wrongdoing.
Lord Cross of Chelsea thought that the right to discovery depended on the relation between the defendant to the action for discovery and the persons the disclosure of whose names was sought. He said, at p. 197:
In cases such as Upmann v. Elkan, L.R. 12 Eq. 140 and Orr v. Diaper, 4 Ch.D. 92 the relation was that of persons engaged by the tortfeasor to deal with the goods in question and who in the course of doing so unwittingly facilitated the commission of the tort. In my judgment no sensible distinction can be drawn between the position of the respondent commissioners and the position of Diaper or Messrs. Elkan or the St. Katherines Dock Company.
Lord Kilbrandon too was of the opinion that the commissioners were in such a relation to the importers as to entitle the plaintiffs to demand from them the names of the infringers.
These passages show that the House was unanimous in thinking that an action for discovery would lie against an innocent person involved in the tortious acts of another and that an order could properly be made requiring him to name the wrongdoers.
In the present case the person who took the documents and gave them to Granada was clearly a wrongdoer, if not a thief. Granada can scarcely claim to come within the category of innocent persons for they must have known that the taker of the documents had no right to give them to them [*1184] and they maintained that they were liable to prosecution. Their relationship to the taker of the documents was in my opinion such as to impose on them the duty to disclose that persons identity for, we were told and it was not disputed, without such disclosure B.S.C. would have been unable to secure any redress for the wrong they had suffered at the hands of the taker. Sir Robert Megarry V.-C. was in my opinion right in the interest of justice to exercise his discretion in favour of making the order.
My Lords, we were told more than once of the dire consequences which, it was said, were likely to follow if disclosure was ordered. The sources of information for the media would, it was said, dry up to the great injury to the public interest. These consequences do not appear to have followed from the decisions in 1963 to which I have referred and which established that journalists did not enjoy any privileged position with regard to disclosure of their sources. I find it difficult to accept that those consequences will follow from the decision in this case which follows those decisions.
It is not in every case that a journalist will be ordered to disclose his source. There must have been some wrongdoing in which the journalist has become involved and where that is established, a judge must be satisfied that the interests of justice require him to exercise his discretion in favour of making such an order.
If in a case such as this, where the taker of the documents had no right to take them, where he was clearly a wrongdoer and where Granada was involved in handling the documents and used them when it had no right to do so, no order for the discovery of the identity of the wrongdoer could be made with the result that B.S.C. could not obtain redress for the wrong they had suffered at the hands of the taker, there would be a denial of justice to B.S.C. and the gap in the law would constitute a charter for wrongdoers such as the taker of the documents in this case.
For these reasons in my opinion the appeal failed.
LORD SALMON. My Lords, a free press is one of the pillars of freedom in this and indeed in any other democratic country. Granada Television Ltd. (Granada) reports news throughout the whole of this country and can properly be regarded as part of the press. A free press reports matters of general public importance, and cannot, in law, be under any obligation, save in exceptional circumstances, to disclose the identity of the persons who supply it with the information appearing in its reports.
It has been accepted for over 100 years that if this immunity did not exist, the presss sources of information would dry up and the public would be deprived of being informed of many matters of great public importance: this should not be allowed to occur in any free country.
The British Steel Corporation (B.S.C.) is no ordinary industrial undertaking. It has no shareholders; it is a nationalised industry. If it operates at a profit, it benefits the nation. If it operates at a serious loss, it causes serious harm to the nation and may threaten its whole economy. Last year B.S.C. lost £700 million and was lent this sum by the nation, interest free. In the present year, B.S.C. considered that it would reduce its loss to £450 million; and the nation agreed to lend, [*1185] interest free, that sum but no more. The nation had also lent B.S.C. £3 billion to provide itself with the finest machinery and equipment in existence, in order to enable it to equal its foreign competitors. Its chief competitors are in Germany and Japan, whose steel industries produce large profits. B.S.C. had acquired its new machinery and equipment prior to the losses which I have mentioned. It still takes two British workmen to produce an amount of steel which is produced by one workman in West Germany.
It is not surprising that the public should wish, and indeed are morally entitled, to know how it is that B.S.C. is in such a parlous condition. Is it due to bad management, or to government interference, or to the trade unions actions or to some other reasons?
A man employed by B.S.C. whom I shall call the unnamed source of information apparently had copies of many of the corporations confidential documents reports, memoranda and minutes including those which were marked most secret. There is no evidence that he stole any of these copies. The probability, in my opinion, is that they were given to him by B.S.C. There is certainly no evidence that they were not. He selected 250 sheets of these papers and took them to Granada on Monday January 28, 1980. It seems to me to be obvious that he was convinced that the contents of these papers would (a) reveal the faults of management and other reasons which had put B.S.C. into such an appalling financial position and (b) help to stop the rot.
In my opinion, he rightly considered that it was his public duty to make the contents of those documents available to the public because the immense sums of money which were being lost, were being lost by the public. It has certainly never been suggested that what he did was out of malice or that he would have accepted even a penny for what he had done. In my opinion, he believed that this duty to help to reveal the contents of the documents to the public was far greater than his duty to B.S.C. to keep the public in the dark. I certainly do not believe that in these circumstances it is fair to describe him as a traitor.
If an ordinary company had not been nationalised and found itself in a parlous condition similar to that of B.S.C.s, the shareholders would exercise their rights to have a full investigation made and to be informed of all the mistakes which had caused the company to be in such a parlous state. That is why the unnamed source of information was in an entirely different position from that of a company executive. The shareholders have the power to call for the relevant documents and to discover the faults which are causing them to lose their money. In the case of a nationalised industry there are no shareholders, and its losses are borne by the public which does not have anything like the same safeguards as shareholders.
When Granada was brought these copy papers (the originals of which have always been in the possession of B.S.C.) they recognised at once that they were marked confidential or secret, and they were asked by and promised the unnamed source of information that his identity would not be revealed.
Granada also considered, rightly in my view, that if any of these papers [*1186] exposed the faults and mistakes which were causing the immense losses made by B.S.C., it would be Granadas public duty to disclose the contents of those papers to the public.
Granada had already arranged that a large part of their programme The World in Action which was to be televised throughout this country on Monday February 4, 1980, at 8.30 p.m. should be devoted to the B.S.C.s affairs.
On January 29, Granada, by telephone, invited Sir Charles Villiers, the chairman of B.S.C., to take part in the programme to be televised on February 4. He accepted. He had not been told of the 250 papers which Granada had received the previous day because Granada had had no time in which to examine those papers.
Granada then made a long and very careful examination of the 250 papers left with them. This examination took up most of the week starting January 28, 1980. It was not until Sunday morning February 3, 1980, that Granada had finally selected 27 out of the 250 confidential and secret papers, extracts from which revealed a great deal about the B.S.C. business the serious faults and mistakes of its management, its low productivity, the strike then still going on, B.S.C.s connection with the government and its failure to staunch the immense losses it was then making.
On Sunday evening there was a number of telephone conversations between B.S.C. and Granada in which Granada told B.S.C. of the details of the 27 documents to be used, and read a complete list of those documents to B.S.C. There can be no doubt that B.S.C., who had the originals of these documents, must have known they were all marked confidential or secret.
B.S.C. could have applied, ex parte, on the morning of February 4 for an interim injunction to prohibit those documents from being used by Granada; and that injunction might have been temporarily granted. This does not mean that later when Granada was heard, the interim injunction would have remained alive.
The chairman of the B.S.C. appears to have been satisfied that he could deal effectively with any points that might be made against B.S.C. and himself from the documents; the public might have been alarmed had it discovered that Granada had kept from them the contents of those documents written by B.S.C. about its own business affairs.
We have read the text of the television programme which started at 8.30 p.m. on February 4 and we have also seen and heard the television programme itself. It stated the alleged serious mistakes of management, low productivity, government interference, the strike, etc., and quotations were made from the confidential papers to which I have referred. In my view, the conduct of the commentator did not deserve any adverse criticism; and this also appears to have been the view of Sir Charles Villiers. Sir Charles Villiers who came into the programme during its last seven minutes seems to me to have acquitted himself quite well and, in my opinion, he certainly was not treated unfairly. He said that the only direction the B.S.C. had had from the government was that our cash limit is £700 million for the current year and £450 million for next year, [*1187] and within that we have to live. On leaving the studio he was asked by waiting newspaper reporters whether the programme was unfair. To which he replied:
It was not a totally unfair programme. We got a pretty fair hearing. I did not learn anything I did not already know . Most of the programme was accurate, but there are one or two things which were screwed up.
On February 6, B.S.C. issued a writ against Granada claiming an injunction that Granada should make no further use of the documents received by them from the unnamed source of information, an order that Granada should give up those documents, and an inquiry as to what damage B.S.C. had suffered by reason of Granadas use of the documents and the alleged infringement of copyright and conversion and detention of B.S.C.s documents.
Following correspondence between the parties respective solicitors, Granada agreed to submit to the injunction claimed by B.S.C. and to deposit the documents in the joint custody of their own and B.S.C.s solicitors. I would point out that at this stage, B.S.C. had not made any claim against Granada to supply them with the name of whoever it was who had brought the confidential and secret papers to Granada. It may be that this was because B.S.C. had learnt that the law had, for very good reason, made the press immune, save in the rarest circumstances, from having to identify the source from which it had obtained news of great public importance. This is a point to which I shall return later.
I am also inclined to think that B.S.C. recognised that in all the circumstances to which I have referred, there was no real chance of any substantial damages being awarded to B.S.C. against Granada or the source; and that all that B.S.C. were really anxious to achieve was to discover the identity of the source of information; and this discovery might be made by obtaining, in their pristine state, the copy documents delivered to Granada by the source, since they would bear some number or mark which would disclose the identity of the source. The demand for the delivery up of these documents in their pristine state would amount, amongst other things, to asking Granada to identify the source. Granada eliminated these numbers or marks from the documents because they recognised that they were immune, certainly at that stage, from identifying the source of the news which was of great public importance. Thereupon B.S.C. amended their claim by demanding that Granada identify the source from which they obtained the confidential documents.
This became and has remained the sole issue between B.S.C. and Granada, because B.S.C. abandoned all their other claims against Granada in the course of the hearing before Sir Robert Megarry V.-C. The action therefore became solely an action for discovery. In McGuinness v. Attorney-General of Victoria, 63 C.L.R. 73, Dixon J. said, at p. 104:
But although all authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action from the necessity of deposing [*1188] to the source of the information contained in his publication yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters. By a long line of cases a practice is recognised of refusing to compel such a defendant to disclose the name of the writer of an article complained of as a libel or of the sources of information he has relied upon.
I do not think that when Dixon J. referred to the necessity of a witness when giving evidence deposing to the source of the information, he meant that there was any such necessity unless the identity of the source was plainly relevant to an issue in the case in question.
I recognise that the long line of cases recited by my noble and learned friend Lord Fraser of Tullybelton which laid down the newspaper rule that the press cannot be obliged to disclose its source of information on discovery were all cases of libel. This, I think, is because the vast majority of the litigation in which the press has ever been concerned consists of libel actions. I cannot imagine any reason why the newspaper rule should be confined to libel actions. In the present case, passages about the management of B.S.C. in the paper which Granada quoted on February 4, 1980, are, in my view, clearly defamatory. B.S.C. could have sued for libel to which there might very well have been a defence of justification, so they wisely chose a different form of action as they were entitled to do; and they have now altered it into an action solely for discovery a very ancient form of action which for a long time has been a rarity. Since in an action against the press, the press cannot be obliged to identify its source of information on discovery in that action, it would be absurd if the plaintiff could overcome that rule by bringing a separate action for discovery. For the reasons I have indicated I am of the opinion that in an action against the press for discovery, the plaintiff cannot and never could obtain, and never has obtained, from the defendant his source of information.
Before leaving this point, I would refer to Broadcasting Corporation of New Zealand v. Alex Harvey Industries Ltd.  1 N.Z.L.R. 163, which was decided by the New Zealand Court of Appeal on June 6, 1980. In that case there was a claim based on slander of goods in addition to a claim for defamation, and Woodhouse J. said, at pp. 166-167:
Does the newspaper rule apply to the one cause of action as well as the other? The answer is to be found, in my opinion, upon the general purpose of the rule, based as it is on public interest rather than the private purposes of the news media. And I do not think there can be any reason of public policy or of logic or of fairness for drawing a distinction. The rule itself is not really concerned with the form of litigation but with supporting a proper flow of information for use by the news media.
I agree with Woodhouse J. that this newspaper rule is not confined to libel or any other form of action.
Woodhouse J. and each of the other two judges in the New Zealand [*1189] Court of Appeal then went on to disagree with the decision of the Court of Appeal in the present case. I agree with them.
Lord Denning M.R. very carefully examined the cases in England and in the United States of America relevant to the question ought Granada to disclose their source of information?
Save for Garland v. Torre (1958) 259 F. 2d 545 which, in my view, is hardly relevant, I agree with those cases (which I need not repeat) and from which Lord Denning M.R. drew a principle with most of which I also respectfully agree and wish to recite, ante, pp. 1129D-G.
After studying the cases it seems to me that the courts are reaching towards this principle. The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by questions or cross-examination at the trial. (I would add save in exceptional circumstances.) Nor by subpoena. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds (and I would add serious faults and mistakes) in the corridors of power in companies or in government departments would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press . It should not be unduly hampered or restricted by the law. Much of the information gathered by the press has been imparted to the informant in confidence. He is guilty of a breach of confidence in telling it to the press. But this is not a reason why his name should be disclosed. Otherwise much information, that ought to be made public, will never be made known. Likewise with documents. They may infringe copyright. But that is no reason for compelling their disclosure, if by so doing it would mean disclosing the name of the informant. In all these cases the plaintiff has his remedy in damages against the newspaper or sometimes an injunction: and that should suffice. It may be for libel. It may be for breach of copyright. It may be for infringement of privacy So let the plaintiff sue the newspaper: without getting the name of their informant.
My Lords, I have no doubt that the words the public has a right of access to information which is of public concern and of which the public ought to know do not embrace any information which may be of interest to the public, but are confined to information which it is in the public interest to make known.
Attorney-General v. Clough  1 Q.B. 773 and Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477 are the only two cases in which the press has ever been ordered by our courts to name its source of information; and this was in order to protect the [*1190] security of the state. Lord Radcliffe who was Chairman of the Tribunal of Inquiry stated on behalf of himself and his two colleagues that it was imperative for the safety of the state that the press should disclose the identity of its informants.
These cases which have nothing to do with discovery, arose out of the Vassall Tribunal of Inquiry in 1963 (Cmnd. 2009) under the Tribunals of Inquiry (Evidence) Act 1921. The Report of the Royal Commission on Tribunals of Inquiry dated November 1, 1966 (Cmnd. 3121), recommended in paragraph 27 that inquiries under the Act of 1921 should be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. The report, which was later agreed by the government, cited the Vassall Inquiry as being a typical example of such a case. Sir John Hobson Q.C., A.-G. stated, correctly, in the Clough case  1 Q.B. 773, 780, that this inquiry was set up, amongst other things, to deal with the safety and security of the state, the activities of a most dangerous spy, and the conduct of the Ministers of the Crown, of officers of Her Majestys services and of civil servants. There was a nation-wide crisis of confidence about all these matters. It is certainly not surprising that the courts considered that the man who had informed the journalists of what they had reported in the press would probably be able to give and, if so, ought to have given the tribunal evidence about the matters to which I have referred; and therefore the journalists should have given the tribunal their informants name.
In the Mulholland case  2 Q.B. 477, 486, Lord Denning M.R. said:
It appears that allegations were made in some newspapers which reflected gravely on persons in high places and on naval officers and civil servants in the Admiralty. The articles clearly imported that there had been neglect of duty on their part in not discovering a spy who was in their midst If well founded, the security arrangements at the Admiralty needed complete overhaul and those at fault would have to pay the penalty for their neglect.
Lord Denning M.R. went on to say in effect, at p. 488, that the journalists knew only what they had been told by their informant and that it was therefore essential that they should disclose his name so that he could be called as a witness before the tribunal to enable the tribunal to see whether [his evidence] is such as to implicate or exculpate those concerned at the Admiralty. Donovan L.J. said, at pp. 492, 493:
I add a few words only about the need for some residual discretion in the court of trial in a case where a journalist is asked in the course of the trial for the source of his information In the present case, where the ultimate matter at stake is the safety of the community, I agree that no such consideration as I have mentioned, calling for the exercise of a discretion in favour of the appellants, arises, and that accordingly their appeals fail .
My Lords, I confess, with the greatest respect, that I cannot understand how it can be erroneous to hold that in Cloughs case  1 Q.B. 773 [*1191]
and Mulhollands case  2 Q.B. 477 the disclosure of the identity of the journalists informant was ordered because the security of the state required it.
It seems to me that the principles which Lord Denning M.R. has laid down in the present case and with which I agree and the many authorities which he had cited in support of those principles, if they are as correct as I believe them to be, make it wrong to dismiss this appeal.
Lord Denning M.R. however states that a newspapers (and therefore Granadas) immunity to disclose the source of its informants exists only if it acts with a due sense of responsibility. Responsibility in this context is difficult to define. Accordingly, Lord Denning M.R. said, to show what he meant by irresponsibility, Let me give some examples. He gives three examples. The first two are examples of irresponsibility but they certainly have no resemblance to the present case. The third example is an example of responsibility, which seems to me to be exactly like the present case. Lord Denning M.R. goes on to say, ante, p. 1130F:
I have been much troubled whether Granada acted with a due sense of responsibility. Many things they did are disturbing. Not so much in the decision to use the information in the public interest, but in the way they went about it.
If, as I believe, Granada obviously gave the information in the public interest, I cannot think how they went about it could oblige them to disclose their source of information to B.S.C. I cannot agree with the finding that Granada did not act with a due sense of responsibility. This finding was based on the following supposed facts:
(a) Granada left it so late to tell B.S.C.
(b) They did not give Sir Charles any opportunity to see the script before he got to the studio
(c) the conduct of the interview by the commentator was deplorable and
(d) the tampering with the papers was disgraceful.
I have already dealt with these suggestions. I do not think that (a) and (b) are of any real importance; and for the reasons I have already given, I do not agree with (c) and (d). It follows that, in my opinion, Granada did nothing to deprive themselves of their immunity to identify the source of the information which they disclosed in the public interest.
I will now deal with the different grounds relied upon by the other members of the Court of Appeal to support the findings of Sir Robert Megarry V.-C. With very great respect, I consider that those grounds are based on a fallacy, namely that the presss immunity from revealing its sources of information, is confined to cases in which the press publishes information that a plaintiff has been guilty of crime or fraud or misconduct which ought to be laid bare in the public interest.
No doubt crime, fraud and misconduct should be laid bare in the public interest; and these, of course, did not occur in B.S.C. There was however much else, even more important in all the circumstances, which called aloud to be revealed in the public interest. I have already stated the most important of these matters at the beginning of this speech. I [*1192] should perhaps add that there was also example after example of failure to meet targets because of mechanical breakdown and design faults the lateness and inaccuracy of export documentation which must be costing the Corporation almost certainly millions of pounds and errors of estimation up to £200 million. I consider it was the moral duty of Granada to lay all these matters before the public on whose shoulders the losses fell, so that a decision would be taken as to how the mistakes causing the parlous conditions of B.S.C. could be remedied. Since Granadas programme at 8.30 p.m. on February 4, 1980, no doubt much has been done to put B.S.C. on the road to recovery. We know, for one thing, that an American industrialist of the highest standing is now chairman of B.S.C. in place of Sir Charles Villiers who has retired. True it is that the new chairman is receiving what in our country are considered to be exceptionally large emoluments; that however would hardly matter should he be able to stop the losses of hundreds of millions of pounds which B.S.C. has made this year and last, and then to transform these losses into reasonable profits.
I do not agree that B.S.C. has established wrongdoing by their employee (Granadas source of information) followed by wrongdoing on the part of Granada. Nor do I agree that Granada admitted any such things.
B.S.C. relied very strongly on Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133 in support of their amendment of the claim demanding the identity of Granadas source of information, i.e. the person who brought 250 papers to Granada. If in the Norwich Pharmacal case, the Customs had been the press or part of it, I think that that case might have been of help to B.S.C.; it is however plain that the Customs have no similarity to the press and that accordingly the Norwich Pharmacal case brings no assistance to B.S.C.
Pharmacal were the owners of a patent for a chemical compound called furazolidone which is widely used. Thirty consignments of it were imported for sale into the United Kingdom between 1960 and 1970. Pharmacal had not licensed any of the importers of those consignments to sell them in the United Kingdom or anywhere else; and accordingly the importers were tortiously infringing the Pharmacal copyright and cheating them. Pharmacal could not identify any of the importers. The Customs however could, since the importers names and addresses appeared in their records. Unless the Customs gave Pharmacal the names of the importers, Pharmacal would have no means of protecting themselves against the importers in question or of obtaining any redress from the importers for their wrongdoing. Your Lordships decided that:
if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he comes under a duty to assist the person wronged by disclosing the identity of the wrongdoers. (per Lord Reid, at p. 175.)
The Customs had argued that it would be contrary to public policy or public interest to compel them to pass on to Pharmacal or to the courts the names of the importers. This was because the importers had been compelled by statute to give their names to the Customs, and also because [*1193] they might cease to give full and candid information to the Customs if their names were to be made known. This was a bad argument but symptomatic of the line normally taken by civil servants in one department to refuse to pass on any information they receive to anyone even to any other department to which it would be most helpful. For example, the Board of Inland Revenue sometimes discover, for certain, that a taxpayer is most corrupt and has been distributing enormous bribes or has been stealing large sums of money. None of this information is ever passed on to the Director of Public Prosecutions and indeed the bribes are allowed to be treated as tax deductible expenses.
The Customs without any reason for suspecting that the importers were bringing furazolidone into this country for the purpose of cheating Pharmacal allowed them to do so. The Customs by giving Pharmacal the names of the importers could not be doing anything which could prejudice themselves or the public. The Norwich Pharmacal case  A.C. 133, in my view, has no relevance to the present appeal.
Templeman L.J., after reviewing all the authorities cited to the Court of Appeal, other than Attorney-General v. Clough  1 Q.B. 773 and Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477 said, ante p. 809D-E.:
In my judgment these authorities support Mr. Irvines submission that there is a public interest in upholding the claim of the media to immunity from disclosing their sources of information, but sound a word of warning as to the ground for claiming and granting immunity.
I agree with him and need not weary your Lordships by reciting any of those authorities. Templeman L.J. then goes on to deal with Attorney-General v. Clough and Attorney-General v. Mulholland. He does so however without referring to the fact that in those cases the courts refused the press immunity from disclosing their sources chiefly on the ground that the disclosure of those sources was necessary to protect the security of the nation: nor did he notice that those were the only two cases in which our courts have ever held that the press should disclose its sources. I agree with Watkins L.J. when he said, ante, pp. 1138H 1139A:
It is I believe upon ample legal authority well founded that newspapers and television are in principle immune from disclosing their confidential sources of information
but I cannot agree with the grounds upon which he dismissed the appeal.
Templeman L.J. disagrees with the principle which I have already recited and which in my view has been accepted by the courts and acted upon for over 100 years. I consider this principle to be the very basis ot the freedom of the press and accordingly a bastion of the freedom ot man.
We do not know whether the man who considered it was his duty to take the papers to Granada did so on his own or whether he represented other members of the higher executive. I should think there was probably considerable disagreement amongst the higher executive about what B.S.C. was to do to rescue its life. I also think that it is unlikely that there was [*1194] only one who was determined that justice demanded that the public should be informed of the disastrous state of B.S.C.s business as revealed in the papers given to Granada. Assuming however, that the man who gave those papers to Granada was doing so on his own and in breach of confidence. for the reasons I have already stated this would not have destroyed Granadas immunity from revealing his name to B.S.C. or anyone else.
Mr. Hoffmann relied strongly on the speech of my noble and learned friend Lord Wilberforce in Science Research Council v. Nasse; Leyland Cars (B.L. Cars Ltd.) v. Vyas  A.C. 1028, 1067. Templeman and Watkins L.JJ. accepted that that authority strongly supported Mr. Hoffmanns very able arguments on behalf of B.S.C. I do not agree. The Nasse and Vyas cases are certainly of great importance. They concerned certain recent statutes which had given redress to anyone who suffered unlawful discrimination on account of sex, race or trade union activities. They raised the question what right has an employee, complaining of unlawful discrimination. to obtain an order against his employer for the production of documents which contain confidential information? These documents were mostly reports of the record, ability and experience of complainants and of their competitors for promotion or a change of job. A perusal of those documents might well in many cases reveal important evidence as to whether there had or had not been discrimination. There were five speeches by your Lordships, each of them allowing the appeal. I venture to quote a short passage in my speech at p. 775 which I do not think was challenged in any of the other speeches:
If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in older fairly to dispose of the proceedings, then, in my opinion, the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant. The law has always recognised that it is of the greatest importance from the point of view of public policy that proceedings in the courts or before tribunals shall be fairly disposed of. This, no doubt, is why the law has never accorded privilege against discovery and inspection of confidential documents which are necessary for fairly disposing of the proceedings.
With respect, I do not think that the Nasse or Vyas cases  A.C. 1028 had anything to do with the case we are now considering. Those cases, like the Norwich Pharmacal case  A.C. 133, had not the slightest link with this or any other case concerning the immunity of the press to reveal its sources of information save in the exceptionally rare cases to which I have referred. This immunity has nothing to do with confidentiality whether between the press and the source, or the source and his employer. It rests solely upon the authorities to which I have referred and the principle of justice that the public shall not be unreasonably deprived by a free press of information of great public importance.
It was argued on behalf of Granada that B.S.C. acquiesced in the use by Granada of the B.S.C. documents. Sir Charles Villiers attended the television programme knowing that the B.S.C. documents were to be used. He was present when they were used and then made no complaint of their use. Neither did he. after the conclusion of the programme, make any [*1195] complaint of their use when he spoke to a number of the reporters who were asking him if the programme had been fair, to which he made the replies which I have already mentioned. I think that this could be regarded as acquiescence, but I do not attach very much importance to it.
I attach still less importance to the defence based on self incrimination. Indeed, I am surprised that it was argued on behalf of Granada.
My Lords, it is, I imagine, apparent from what I have said that I have the misfortune to disagree with your Lordships. The immunity of the press to reveal its sources of information save in exceptional circumstances is in the public interest, and has been so accepted by the courts for so long that I consider it is wrong now to sweep this immunity away. The press has been deprived of this immunity only twice, namely, in the Clough case  1 Q.B. 773 and in the Mulholland case  2 Q.B. 477. And the exceptional circumstances in each of those cases were that the security of the nation required that the presss source of information must be revealed. Certainly no such circumstances appear in the present case. I do not say that national security will necessarily always be the only special circumstances but it is the only one which has been effective until now. Moreover, there are no circumstances in this case which have ever before deprived or ever should deprive the press, by discovery, of its immunity against revealing its sources of information in relation to matters of great public importance. The freedom of the press depends upon this immunity. Were it to disappear so would the sources from which its information is obtained, and the public be deprived of much of the information to which the public of a free nation is entitled.
My Lords, I would allow the appeal.
LORD FRASER OF TULLYBELTON. My Lords, the question in this appeal is whether the appellants (Granada) can be compelled in these proceedings to disclose the identity of the person or persons who handed over to them a bundle of about 250 confidential documents belonging to the respondents (B.S.C.). The documents contained information relating to the internal management of B.S.C. which was used by Granada in a television programme on February 4, 1980, in a current affairs series called World in Action. The programme was of topical interest because it was broadcast during a national steel strike by B.S.C.s employees. It was generally critical of B.S.C.s management, and the leaked information was said to show that the management was to blame for inefficiency for which B.S.C. was seeking to blame the trade unions. At the end of the programme Sir Charles Villiers, the head of B.S.C., was interviewed and dealt with some of the points raised. Whether the Programme damaged B.S.C. will be a matter of opinion, but B.S.C.s real complaint is that the occurrence of the leak has shown that they have a disloyal employee with access to confidential information, that their efforts to identify him have created an unpleasant atmosphere of suspicion among their employees, especially at head office, and that they need to know the name of the traitor in order to clear the air. In answer to that, Granada say that they received the information in confidence and promised the informant that they would not disclose his identity. [*1196] They say that, if they are compelled to break their promise and disclose the informants name, the flow of information to the press will tend to dry up, and that that would be contrary to public interest which lies in having a free flow of information to the press. The decision will affect all the news media including television, sound broadcasting, newspapers and individual journalists, and I shall refer to them collectively as the press.
Consideration of the legal position starts from the proposition that a witness is not as a general rule entitled to withhold relevant admissible evidence in court, merely on the ground that it will disclose information which is confidential. The reason is that the public interest in the administration of justice requires such information to be disclosed, and is deemed to prevail over public interest in preserving confidentiality. The courts will try to avoid forcing witnesses to commit breaches of confidentiality, and will not do so if the information can be obtained from another source or if it is not essential. But if it is essential, or at least if it will serve a useful purpose in relation to the proceedings in hand see Attorney-General v. Mulholland; Attorney-General v. Foster  2 Q.B. 477, 492 per Donovan L.J. disclosure will be ordered. The law to that effect is well established. It is subject to exception in a very few cases where, in the public interest, immunity from disclosure has been recognised by law on grounds which were recently considered in this House in D. v. National Society for the Prevention of Cruelty to Children  A.C. 171. These exceptions include disclosure of information affecting the security of the state, and information as to the identity of police informers and of informers to the N.S.P.C.C. but they do not include information imparted in confidence by patients to their doctors or penitents to their priests or informers to journalists and the news media: see Attorney-General v. Clough  1 Q.B. 773; Attorney-General v. Mulholland  2 Q.B. 477; and H.M. Advocate v. Airs, 1975 J.C. 64, 70. That general position was not disputed on behalf of Granada. Their argument was directed to the more limited proposition that disclosure either could not, as a matter of law, or should not, in the exercise of judicial discretion, be ordered in the present proceedings. It is therefore necessary to consider the procedural position.
When the proceedings began B.S.C. were seeking an injunction against Granada from making further use of the leaked documents and for delivery up of the documents. These matters have been disposed of and the only live issue (which was added by amendment) is whether an order should be made for disclosure of the informants name. Such an order was made in Norwich Pharmacal Co. v. Customs and Excise Commissioners  A.C. 133. In that case Lord Reid said, at p. 175:
[The authorities] 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 wrongdoing 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. (Emphasis added).
Unless that principle is excluded in the circumstances of the present case, [*1197] it would apply very aptly to Granada, who clearly became mixed up in what must have been the tortious act of the person who removed, and probably stole, confidential documents from B.S.C. Granada could not even be said to have become mixed up through no fault of their own as they received the documents from the informant knowing what they were and used them for their own purposes. Their position is therefore weaker than that of defendants who become involved in ignorance of the true position, as in the Norwich Pharmacal case and in the earlier cases of Upmann v. Elkan, L.R. 12 Eq. 140; 7 Ch.App. 130 and Orr v. Diaper, 4 Ch.D. 92, in both of which the defendants were innocent importers or shippers of goods marked with counterfeit trade marks, or brand marks. Nevertheless it is said that Granada, as an organ of the press, has no duty to assist by disclosing the name of their source in proceedings such as the present, even if the plaintiff cannot otherwise discover the name of the wrongdoer who has invaded his rights.
The claim of the press to be in a special position is rested on two grounds. The first is the so-called newspaper rule, the effect of which was described thus by Bankes L.J. in Lyle-Samuel v. Odhams Ltd.  1 K.B. 135, 143:
All I say is that this is an action of libel against the publishers of a newspaper, that it is well established that in the case of newspapers there is an exception to the rule requiring a defendant to disclose the source of his information where he pleads either privilege or fair comment.
I would make the following coments on the newspaper rule.
1. The rule applied only to libel actions. It has recently been extended in Broadcasting Corporation of New Zealand v. Alex Harvey Industries Ltd.  1 N.Z.L.R. 163 to slander of title, but the present case has nothing to do with libel or slander of title.
2. The rule applied only at the interlocutory stage of discovery. The reasons for the rule are obscure as judges have often pointed out: see for example Scrutton L.J. in Lyle-Samuel v. Odhams Ltd.  1 K.B. 135, 144 and Scott L.J. in South Suburban Co-operative Society Ltd. v. Orum  2 K.B. 690, 703. It has sometimes been held that the name of the informant was irrelevant: see Parnell v. Walter (1890) 24 Q.B.D. 441 and Adams v. Fisher (1914) 30 T.L.R. 288. But that reason cannot apply in a case where the defendant pleads privilege: see Elliott v. Garrett  1 K.B. 870 and Lyle-Samuels case  1 K.B. 135. I agree with Lord Hailsham of St. Marylebone that the rule must have been based on public policy: D. v. National Society for the Prevention of Cruelty to Children  A.C. 171, 228. The reasons of public policy, and the limits of the rule, were explained by Dixon J. in the Australian case of McGuinness v. Attorney-General for Victoria, 63 C.L.R. 73, 104, when he said:
But although all authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action from the necessity of deposing to the source of the information contained in his publication or to [*1198] statements made in confidence to him in the exercise of his calling, yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters.
By a long line of cases a practice is recognised of refusing to compel such a defendant to disclose the name of the writer of an article complained of as a libel or of the sources of information he has relied upon. The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matters contained in their journals and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity. The cases are collected in Lyle-Samuel v. Odhams Ltd.  1 K.B. 135 and South Suburban Co-operative Society Ltd. v. Orum  2 K.B. 690, which are the latest authorities upon the application of the rule. The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it not a rule of evidence but a practice of refusing in an action of libel against the publisher, &c., of a newspaper to compel discovery of the name of his informants. It rests not on a principle of privilege but on the limitations of discovery
3. Since 1949 the rules of court have applied the same rule to all defendants see now R.S.C., Ord. 82, r. 6 so that there is no longer a separate newspaper rule on discovery which could be relied on to justify giving special treatment to the press as a defence to a Norwich Pharmacal type of order.
4. The limits of the rule are uncertain. It applied to a newspaper and to a journalist in the full time employment of a newspaper: Lawson v. Odhams Press Ltd.  1 K.B. 129. It did not apply to the writer of a libellous letter to a newspaper: see South Suburban Co-operative Society Ltd. v. Orum  2 K.B. 690. What is not clear is whether it applied to a freelance journalist or to the writer of a pamphlet or broadsheet or of the many other kinds of publication which impart useful information to the public. For instance, it is uncertain whether Crockfords Clerical Directory counts as a newspaper for this purpose: Georgius v. Oxford University Press  1 K.B. 729. In the American Supreme Court case of Branzburg v. Hayes (1972) 408 U.S. 665 the majority opinion pointed out the difficulty of defining the categories of newsmen who would qualify for any special privilege to be accorded to the press and they said, at p. 705:
The informative function asserted by representatives of the organised press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential [*1199] sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury.
I would be reluctant to support a rule whose boundaries are so ill defined. 5. The rule has repeatedly been said to be subject to possible exceptions see for example Hope v. Brash  2 Q.B. 188, 192, per A.L. Smith L.J. although there seems to be no reported case in England where the exception has been held to apply. Indeed in the Broadcasting Corporation of New Zealand case  1 N.Z.L.R. 163, Woodhouse J. thought that the rule should now be regarded as absolute. But the Scottish case of Cunningham v. Duncan and Jamieson (1889) 16 R. 383, seems to be an example of such an exception. The newspaper rule was not mentioned by name in the judgments, and as a matter of procedure it could not be exactly applied in Scotland, but the rule was in effect recognised by Lord Mure who said, at p. 388, there was a general rule that the editor of a newspaper, where he takes the responsibility for anonymous correspondence published in his paper, is not bound to disclose the author. Nevertheless, in the special circumstances of that case, the court allowed a diligence to recover, before the trial, the manuscripts of letters to a newspaper. The special circumstances were that, according to the pursuers averments, the letters, which had been published under pseudonyms and appeared to have been written by members of the public, had really been written or procured to be written by the publishers of the newspaper as part of a systematic plan to discredit the pursuer. If the newspaper rule were otherwise applicable, I think the circumstances of the present appeal might well be within the exception because refusal to order disclosure of the informants name will probably deprive B.S.C. of any effective remedy for a wrong they have suffered. Even if they could quantify damage done to them by the fact of disclosure having occurred, any award of damages against Granada would not provide a remedy for the continuing lack of mutual confidence within their staff.
For these reasons I do not regard the newspaper rule as providing a F good reason why a Norwich Pharmacal order should not be made against the press in a case such as the present. The second, and more formidable. reason relied upon by Granada, is that discovery has never been used against the press in this way although it is well known that leaks of information have often occurred. We were referred to an interesting historical survey of political leaks to the press in England in the 18th and 19th centuries see Politics and the Press 1780 to 1850 by Professor A. Aspinall, p. 192. Some of the leaks mentioned in that work were thought at the time to have been made by persons in very high places. In one case in 1797 Canning, who was then Under-Secretary of State for Foreign Affairs, suspected that the King himself was responsible. In such circumstances it is easy to see that it may have been thought that action in the court to compel disclosure of the source would have led to scandal and publicity even more damaging than the leaks. I think that is probably the explanation, at least in some cases, why no attempt to compel disclosure was made. But there may also have been a belief that the courts had no power to compel disclosure of sources, either by the press or by any [*1200] other defendant. Thus in Abernethy v. Hutchinson, 1 H. & Tw. 28, where the proprietors of The Lancet had published lectures delivered orally by the plaintiff professor to his students, Lord Eldon L.C. granted an injunction against further publication but he said that the court had no right to compel the defendants to disclose the source of information which had evidently been given to them in breach of confidence. But the point does not appear to have been argued, and in any event it does not seem that the identity of the informant was material for the action. The same is true in Prince Albert v. Strange, 1 H. & Tw. 1 where the plaintiff sought and obtained an injunction against the defendants publishing etchings by himself and Queen Victoria which had been obtained in breach of confidence, but made no attempt to obtain discovery of the name of the person who had handed over the etchings to the defendant. I therefore conclude that the absence of precedents for the use of discovery for this purpose against the press, or indeed against any other defendants, while certainly striking, can be readily explained otherwise than on the ground that discovery was not available as a remedy.
A separate argument against making a Norwich Pharmacal order in this case was that such an order, it was said, could not be made against any defendant in the absence of evidence that it was required for the purpose of bringing an action against the informant. It is true that in most of the cases referred to in the speeches in the Norwich Pharmacal case  A.C. 133 the plaintiff intended to bring proceedings against the source, but no authority was cited to us showing that such an intention was essential to obtain discovery. In Cardale v. Watkins, 5 Madd. 18, Sir John Leach V.-C. did indeed say that discovery would not be given for the mere gratification of curiosity but in aid of some other proceedings either pending or intended. In the present case discovery is certainly not sought for the mere gratification of curiosity; it is sought for the vindication of B.S.C.s rights, and I do not think it matters whether separate proceedings are required for that purpose or not. That view is supported by American authority in Post v. Toledo, Cincinnati and St. Louis Railroad Co., 11 N.E. Rep. 540, where Field J. said at p. 547 that a plaintiff can obtain discovery if he has a cause of action against the informant whether or not he intends to raise proceedings. In the present case it is clear that B.S.C. do have a cause of action against the informant who has disclosed confidential information of theirs. I agree with Templeman L.J. in the Court of Appeal that discovery ought to be available to ascertain the wrongdoer when it is necessary to enable justice to be done.
In my opinion therefore there is no reason in principle why discovery cannot be ordered, and the question of whether it should be ordered is one for the discretion of the court. Sir Robert Megarry V.-C. held that, if the matter was one for his discretion, he would unhesitantly exercise it in favour of ordering disclosure, and his decision was upheld in the Court of Appeal. I entirely agree. I have particularly in mind the fact that the informant had committed a wrong against a third party (B.S.C.) by supplying the information, and no attempt was made to justify it. The information did not reveal criminal conduct or anything that could be [*1201] described as iniquity by B.S.C. If it had done so, its disclosure would have been justified and not wrongful; there is no confidence as to the disclosure of iniquity: see Gartside v. Outram (1856) 26 L.J. Ch. 113, 114. If it had disclosed iniquity, Granadas appeal might well have succeeded. As to what is covered by the word iniquity in this context I find guidance in Initial Services Ltd. v. Putterill  1 Q.B. 396 where the facts were not altogether unlike those in the present case. The sales manager of the plaintiff company resigned his appointment and when he left he took with him a number of documents belonging to the company which he handed to a newspaper. The newspaper published an article based on the information in the documents. The defendants pleaded that the disclosures were justified because they showed, inter alia, that the company had failed to register an agreement to which section 6 of the Restrictive Trade Practices Act 1956 applied, and had sent out a circular which gave a misleading explanation of its reasons for increasing its charges. Cusack J., and on appeal the Court of Appeal, refused to strike out the defence. Lord Denning M.R. said, at p. 405:
Suppose a master tells his servant: I am going to falsify these sale notes and deceive the customers. You are not to say anything about it to anyone. If the master thereafter falsifies the sale notes, the servant is entitled to say: I am not going to stay any longer in the service of a man who does such a thing. I will leave him and report it to the customers. It was so held in Gartside v. Outram, 26 L.J. Ch. 113. Mr. Michael Kerr suggested that this exception was confined to cases where the master has been guilty of a crime or fraud. But I do not think it is so limited. It extends to any misconduct of such a nature that it ought in the public interest to be disclo sed to others The exception should extend to crimes. frauds and misdeeds, both those actually committed as well as those in contemplation, provided always and this is essential that the disclosure is justified in the public interest. The reason is because no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare: see Annesley v. (Earl) Anglesea (1743) L.R. 5 Q.B. 317n.
Salmon L.J. spoke to the same effect.
Woodward v. Hutchins  1 W.L.R. 760 was a case where the Court of Appeal refused an injunction against publication of confidential information about a pop group. Lord Denning M.R. said, at pp. 763- 764:
If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. In these cases of confidential information it is a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth. [*1202]
The affidavits lodged on behalf of Granada in this appeal seem to hint at making the sort of case referred to by Lord Denning M.R. in Woodwards case, but no such case was attempted to be made in argument. On the contrary, it was accepted by Granada that publication could have been prevented if an injunction had been applied for before publication. The scope of the iniquity rule is therefore not in issue in this appeal, and the existence of the rule should protect the press from being ordered to disclose the identity of their source in any case where the behaviour of the source has been justified. The result of the appeal, so far as that rule is concerned, will be to show that the final decision on whether confidential information discloses such iniquity as to justify its publication must be made by the courts and not by the press.
The answer to the question therefore seems to me to involve weighing up the public interest for and against publication. The balance does not in my opinion depend on the use made of the leaked information by the appellants in this particular case. Anyone who hands over to the press a bundle of confidential documents belonging to someone else must surely expect, and intend, that, if they contain information of topical interest, it will be published in some form. The informers motives are, in my opinion, irrelevant. It is said, and I am willing to accept, that in this case the informant neither asked for nor received any money, or other reward, but that he acted out of a keen sense of indignation about the dealings between B.S.C. and the government before and during the strike. No doubt there is a public interest in maintaining the free flow of information to the press, and therefore against obstructing informers. But there is also I think a very strong public interest in preserving confidentiality within any organisation, in order that it can operate efficiently, and also be free from suspicion that it is harbouring disloyal employees. There is no difference in this respect between a public corporation like B.S.C. and an ordinary company. Both have to disclose certain information about their activities; B.S.C. report to the minister who lays their report before Parliament (see Iron and Steel Act 1975, section 5), while a company reports to the shareholders and to the public. Unauthorised disclosure of confidential information about either is equally liable to damage efficiency and morale. In the present case I am of opinion that the public interest in preserving confidentiality should prevail, and I would dismiss the appeal.
As regards Granadas mutilation of the documents before returning them to B.S.C., by cutting off marks which they thought might tend to identify the source, their behaviour was reprehensible but not directly relevant to the issues in this appeal.
The argument that Granada run a real risk of being prosecuted for handling stolen goods or for conspiracy to defraud seems to me, if I may say so without disrespect to the persuasive way in which it was presented, to be far-fetched. In any event, I agree with my noble and learned friend Viscount Dilhorne, whose recent death we now deplore, that disclosure of the informants name would not tend to incriminate Granada in his offences.
I would dismiss the appeal. [*1203]
LORD RUSSELL OF KILLOWEN. My Lords, I concurred at the time of the decision with the opinion then expressed by the majority of your Lordships that this appeal failed, stating that I would later express in writing my reasons for that concurrence.
I have since had the advantage of reading the written reasons of my noble and learned friend Lord Wilberforce, with which I am in agreement and which deal so fully with the facts and the law that I refrain from repetition. I would however seek to stress some salient points in the hope of dispelling misunderstandings (or misgivings) that have since the decision been expressed.
The first such point. Granada rightly in my opinion agreed that it had no right in law to make the use which it did of the abstracted documents: indeed Granada expressly asserted that had B.S.C. moved quickly enough an inJunction against such use must have been granted. Granada did not contend that publication was justified by a public interest in a free flow of information.
The second such point. Since Granada had no such right let alone freedom in law this case has not even marginal connection with any concept of the freedom of the press.
The third such point was the situation in which B.S.C. found itself. In its organisation was someone with access to important secret or otherwise confidential papers who was prepared (for reasons which may have seemed good to him or her but did not involve revelation of what has been referred to compendiously as iniquity) to commit a gross breach of the trust and confidence necessarily reposed in him; and who might be so prepared on some future occasion should he see fit. B.S.C. had endeavoured to pinpoint the miscreant but had failed. No imagination is needed to appreciate that that failure must have led to an atmosphere of suspicion between management and staff and between members of management and of staff, and must have been profoundly disturbing to staff relations and the conduct of business. A grave injustice had been done to B.S.C. by the source, and Granada by tampering with the B.S.C. documents before their return with a view to preventing his identification had contrived (or at least sought) to prolong (or perpetuate) that grave injustice.
My Lords, in general terms I recognise a public interest in the free flow of information, and that there may be some obstruction to that flow if a source is not entitled in law to rely upon an undertaking by a journalist to treat the identity of the source as confidential to him. But where, as here, the undertaking results in or would perpetuate the gross wrong and injustice done to B.S.C., to accede to such contention would indeed encourage the doing of injustice. I cannot accept that the public interest in the prevention of injustice is here negatived by any public interest in a free flow of information.
I have, my Lords, also had the advantage of reading the reasons prepared by my noble and learned friend Viscount Dilhorne before his recent and greatly to be lamented death. As will be seen they march with those of Lord Wilberforce. The latter however did not deal in detail with a suggestion by Granada that identification by Granada of the source [*1204] might tend to incriminate Granada. I find this suggestion to be wholly without foundation. Save as a matter of quite improbable speculation Granada has already stated in its evidence all the matters which might (or might not) disclose an offence by Granada. Viscount Dilhorne has answered this contention in his reasons, and I agree with him. It seems to me that to give a name, the giving of which might (speculatively) lead to further inquiries and further evidence is not to incriminate oneself by ones own evidence.
Since writing these reasons for dismissal of this appeal I have also had the advantage of reading the reasons of my noble and learned friend Lord Fraser of Tullybelton. It will be seen that I am also in agreement with his reasons.