Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor

C1 was the Commissioner, C2 was the Serious Organised Crime Agency (SOCA). D1 was the publisher of the Sunday Times, for which D2 worked as an investigative journalist. D2 received leaked documents from the files of C1 and C2 (“the documents”). D2 wrote and D1 published an article headed “Underworld kings cash in on taxpayer land fund”. It referred to Mr David Hunt as a man “whose criminal network is allegedly so vast that Scotland Yard regards him as “too big’ to take on” and was based on the documents. Mr Hunt sued D1 for libel in a separate action.

There was a complex procedural background to the litigation. Cs alleged breach of confidence, conversion and breach of the DPA against Ds, and had obtained an injunction against them. The trial was of Cs’ breach of confidence claims, and injunctions and delivery up of the documents were applied for.

Mr Hunt had issued claims for libel against D1 and the Evening Standard (ES). A draft amended defence prepared by D1 in its libel action made reference to the leaked information, and this prompted Cs’ application for an injunction in the present action. No further steps were taken in the two libel actions pending its outcome.

There were 10 documents to which the dispute related. Ds admitted coming into possession of five documents, but argued that the information in them was properly and lawfully received, either in the course of legitimate newsgathering activities or of investigative journalism on matters of public interest, or for the purposes of defending the Libel Action. Since Cs were public authorities, they identified the basis of their claims as their obligation to protect the Article 8 rights of individuals, and as their duties and responsibilities to protect crime. They contended that improper disclosure of confidential information carried the risk of attacks on the individuals it identified.

Cs and Ds accepted the public interest nature of the article published by D1, and both parties believed that Mr Hunt was the head of an organised crime gang who had not been brought to justice. Ds contended that there was a public interest in their being able to defend themselves in the libel action by means of a justification defence, that Cs had not established that the risks they described in fact existed, and that it was not necessary or proportionate to restrict their article 10 rights.

How did the following affect Cs’ application for an injunction, or delivery up of the information?

1 D1’s right to a fair trial of the libel action

2 The Article 8 rights of 3rd parties, and Ds’ article 10 rights

3 Any breach of confidence which had taken place

4 Whether or not Mr Hunt could be trusted to preserve the confidentiality of any information communicated to him in the libel action

5 Whether Cs should have brought these separate proceedings in addition to the libel action

6 Whether the documents in question were subject to Legal Professional Privilege (LPP)

Held, giving judgment for the Claimants in part

1) The right to a fair trial entailed equality of arms between the parties. Preventing D1 from relying on the documents in support of its case would have threatened it from being able to prove its case in the libel action. However, if D1 was prevented from relying on the documents on one of the bases set out in R v Chief Constable of West Midlands, ex p Wiley [1995] 1 AC 274 (where the nature of Public Interest Immunity was examined) then it would not necessarily follow that it was being denied a fair trial.

2) Cs rightly invoked the article 8 rights of members of the public which they were under a duty to protect, and the Judge was bound to have regard to them. The Ds’ Article 10 rights were engaged both by their publication of the original article based on the documents and by their desire to use those documents to prove at trial the truth of the allegations made in the article.

3) Both the Article and the proposed use of confidential information in the libel action involved types of speech to which the law should accord the highest protection. When a reasonable journalist receives information from a confidential source, this was a weighty factor to be put into the scales which determine whether or not publication is appropriate. If nothing else weighs on the other side, and in all the circumstances the balance falls in favour of publication then it will not be a breach of confidence. A fortiori, looking at the material will not be a breach of confidence. Where disclosure serves the public interest, publication is not a breach of confidence; rather, no obligation of confidence exists in the first place where the subject matter concerns a risk of public  harm.

4) Cs’ submission that Mr Hunt could not be trusted to preserve the confidentiality of any material disclosed to him was accepted by the Judge.

5) Cs could not be criticised for bringing separate proceedings: the claim for delivery up could not have been advanced if Cs had merely been respondents in the Libel Action to an application for third party disclosure. There was also no knowing what course the libel action may have taken.

6) The Judge accepted Cs’ submission that the courts can and should restrain the use in legal proceedings of a document which is covered by legal professional privilege on the basis of the law of confidentiality.

The first noteworthy point in this extremely long and detailed judgment relates to the engagement of Article 10 by the deployment of documents in a justification defence. There is an intersection between a Defendant’s Article 10 rights manifested in its publication of an article, and its Article 10 rights manifested in its being able to plead a defence of justification based on particular documents in an action relating to the article.

The second point relates to the use of leaked information by journalists. The protection of journalists’ sources is well established in law. But this decision offers journalists who examine and use leaked information in the course of their work protection, by making clear that neither looking at nor publishing the information will be a breach of confidence where there is a public interest in the disclosure of the information in question. The fundamental principles found in Toulson and Phipps, which relate to the prevention of serious harm, are extended by the Judge to the effect that the publication of public interest journalism may preclude the existence of an obligation of confidence.