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HOUSE OF LORDS BRITISH
STEEL CORPORATION, RESPONDENTS AND GRANADA
TELEVISION LTD., APPELLANTS Annotated
authoritative version at: [1981] 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 April 2. 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 reporter’s 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 Granada’s 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 [1974] 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.
Boulton’s 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 “source’s” 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. Irvine’s 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. Boulton’s 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 [1975] 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
[1980] 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.
[1980] 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. Irvine’s 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, Granada’s 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) [1978] 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 Granada’s 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 [1963] 1 Q.B. 773 and
Attorney-General v. Mulholland; Attorney-General v. Foster [1963] 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 [1897] 2 Q.B. 188, to
a trade periodical in Plymouth Mutual Co-operative and Industrial Society
Ltd. v. Traders’ Publishing Association Ltd. [1906] 1 K.B. 403,
to an action for malicious prosecution in Maass v. Gas Light and Coke Co. [1911] 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
[1937] 2 K.B. 690: see also Lyle-Samuel v. Odhams Ltd. [1920] 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. Irvine’s 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 [1954] 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 [1914] 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 [1963] 1 Q.B. 773 and Attorney-General v. Mulholland [1963] 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 judge’s
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 [1978] 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 Committee’s 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 Hailsham’s
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 Hailsham’s 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 committee’s
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 Committee’s report; and preconceptions may distort
judgment. One thing that clearly emerges from the N.S.P.C.C. case [1978] 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 [1980] 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 Diplock’s 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 Hailsham’s
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. Irvine’s 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. Irvine’s 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 [1974] 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 plaintiff’s claim in the N.S.P.C.C. case [1978] 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 judge’s
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) [1975] 2 N.Z.L.R. 237; Brill v. Television
Service One [1976] 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 [1963] 1 Q.B. 773 and Attorney-General v. Mulholland [1963] 2 Q.B. 477,
and by a dictum of Lord Scarman in Express Newspapers Ltd. v. McShane [1980] 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 newspaper’s sources, the
interrogatories should be disallowed: see Lawson v. Odhams Press Ltd. [1949] 1 K.B. 129,
especially at p. 136; and see Georgius v. Oxford University Press [1949] 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 [1963] 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 [1980] 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.
[1976] 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 [1980] 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 [1978] 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. Irvine’s
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 media’s
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 plaintiff’s
private interest in apposition to the public interest, seems to me to be
plainly fallacious in its formulation. The plaintiff’s
“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
media’s 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
Granada’s 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 Granada’s
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 [1980] 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 [1974] 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 public’s
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 Granada’s 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 Granada’s 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 Granada’s 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 [1980] 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 journalist’s
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
programme’s 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 Charles’s 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 corporation’s 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 Government’s 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 don’t know what documents
you’re 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 corporation’s 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. The law 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 [1974] 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 [1978] A.C. 171 and Science Research
Council v. Nasse [1979] Q.B. 144; [1980] 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 [1897] 2 Q.B. 188; Plymouth Mutual Co-operative and
Industrial Society Ltd. v. Traders’ Publishing Association Ltd. [1906] 1 K.B. 403; Lyle-Samuel
v. Odhams Ltd. [1920] 1 K.B. 135 and Georgius v. Oxford University Press [1949] 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 [1963] 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 Garland’s 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 newspaper’s 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 [1963] 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 Granada’s 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 [1974] 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 [1968] 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 Granada’s 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 [1974] 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 [1974] 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 [1978] 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 newspaper’s 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 newspaper’s informant should be
disclosed.” In Lyle-Samuel v. Odhams Ltd. [1920] 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 [1937] 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 [1949] 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 newspaper’s 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) [1975] 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. Irvine’s
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 [1963] 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 [1963] 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. Irvine’s 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 [1980] A.C. 1028,
1067 where Lord Wilberforce referred to authorities, including Attorney-General
v. Mulholland [1963] 2 Q.B. 477 and Attorney-General v. Clough [1963] 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 [1974] 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 [1978] A.C. 171 the order for discovery was refused although the
plaintiff’s 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 [1973] 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 [1974] 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
Granada’s 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. [1978] 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 Granada’s 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
Granada’s 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 Granada’s 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 Granada’s
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
court’s 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 court’s 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 employer’s 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 [1980] 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 corporation’s
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 Granada’s 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 court’s 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 Granada’s 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 corporation’s 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 [1970] 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 corporation’s 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 corporation’s 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
Granada’s 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 [1972] 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. Lennard’s case [Lennard’s Carrying
Co. Ltd. v. Asiatic Petroleum Co. Ltd.] [1915] 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 corporation’s
counsel, that an order to disclose Granada’s 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 source’s 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 source’s 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. Granada’s 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. Granada’s 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
public’s right to know. In Granada’s 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 Granada’s printed case paragraph 3 (vii)
“such an injunction [restraining Granada’s 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, one’s
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 [1968] 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. Granada’s 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 [1963] 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 [1963] 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 [1963] 1 Q.B. 773 and Attorney-General
v. Mulholland; Attorney-General v. Foster [1963] 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
court’s 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 [1963] 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 Denning’s 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 [1974] A.C. 133, since followed in a number of
cases, e.g. R.C.A. Corporation v. Reddingtons Rare Records [1974] 1 W.L.R. 1445
and Loose v. Williamson (Note) [1978] 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 [1974] 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
surgeon’s 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 Prince’s 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 Hillman’s Airways Ltd. v. S.A.
d’Editions Aéronautiques Internationales [1934] 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. [1980] 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 [1974] 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 [1974] 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 source’s 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 [1974] 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. [1980] 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 [1980] 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 [1963] 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
counsel’s 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) [1978] 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. [1939] 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 Granada’s counsel’s
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
supplier’s identity? I do not see that it can be. In my view Granada’s 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 informant’s 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. [1906] 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. [1920] 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
defendant’s 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. [1920] 1 K.B. 135 and South Suburban Co-operative Society
Ltd. v. Orum [1937] 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 appellant’s 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 [1963] 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 [1963] 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 Granada’s 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
donor’s 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 [1974] 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.
Katherine’s 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 person’s 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 press’s 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
corporation’s 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
Granada’s 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 Granada’s 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. [1980] 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 [1963] 1 Q.B. 773 and Attorney-General
v. Mulholland; Attorney-General v. Foster [1963] 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 [1963] 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
Majesty’s 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 informant’s name. In the Mulholland case [1963] 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 Clough’s case [1963] 1 Q.B.
773 [*1191] and Mulholland’s case [1963] 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 newspaper’s (and
therefore Granada’s) 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 press’s 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
Granada’s 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 (Granada’s 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 [1974] A.C. 133 in support of their amendment of the
claim demanding the identity of Granada’s 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 [1974] 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 [1963] 1 Q.B. 773 and Attorney-General
v. Mulholland; Attorney-General v. Foster [1963] 2 Q.B. 477 said, ante p.
809D-E.: “In my judgment these authorities
support Mr. Irvine’s 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 Granada’s
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 [1980] A.C. 1028, 1067. Templeman and Watkins L.JJ.
accepted that that authority strongly supported Mr. Hoffmann’s 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 [1980] A.C.
1028 had anything to do with the case we are now considering. Those cases, like
the Norwich Pharmacal case [1974] 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 [1963] 1 Q.B.
773 and in the Mulholland case [1963] 2 Q.B. 477. And the exceptional
circumstances in each of those cases were that the security of the nation
required that the press’s 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 informant’s 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 [1963] 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 [1978] 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 [1963] 1 Q.B. 773; Attorney-General v. Mulholland [1963] 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 informant’s name. Such an order was made in Norwich
Pharmacal Co. v. Customs and Excise Commissioners [1974] 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. [1920] 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. [1980] 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. [1920] 1 K.B. 135,
144 and Scott L.J. in South Suburban Co-operative Society Ltd. v. Orum [1937] 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 [1902] 1 K.B. 870 and Lyle-Samuel’s case [1920] 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 [1978] 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. [1920] 1 K.B. 135 and
South Suburban Co-operative Society Ltd. v. Orum [1937] 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. [1949] 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 [1937] 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 Crockford’s Clerical Directory counts as a newspaper for this
purpose: Georgius v. Oxford University Press [1949] 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 [1897] 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 [1980] 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 pursuer’s 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 informant’s 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 defendant’s 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 [1974] 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, Granada’s 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 [1968] 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 [1977] 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
Woodward’s 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 informer’s 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 Granada’s 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
informant’s 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 one’s 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. Appeal dismissed. |