Edward Haughey (plaintiff) v Patrick Prendiville and Penfield Enterprises Limited (defendants)

Procedure - Discovery - Source - of information contained in published article - Whether privileged from disclosure Contempt of Court Act 1981 (c. 49), section 10.

In the High Court of Justice in Northern Ireland (before Mr Justice Sheil); judgment delivered 17 December 1996.

IN deciding whether or not to cede to an application under Section 10 of the Contempt of Court Act 1981 for an order, requiring the publisher of an article to disclose the source of the information contained in that article, the court has to carry out a balancing test.

Where the application is grounded on a claim that disclosure is necessary in the interests of justice, the judge's task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand, against the importance of protecting the source on the other hand. In this balancing exercise, it is only if the judge is satisfied that disclosure in the interests of justice is of such a prepondering importance as to override the statutory privilege against disclosure, that the thresh old of necessity will be reached.

Mr Justice Sheil so held, refusing the plaintiff's appeal against the decision of Master Ellison to refuse to order that the defendants make discovery of certain documents listed in their list of documents.

Section 10 of the Contempt of Court Act 1981 provides as follows.

"No court may require a person to, disclose, nor is any person guilty of contempt of court for refusing to disclose the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice of national security or for the prevention of disorder or crime."

Ben Stephens QC and David Ringland BL, for the plaintiff appellant, Michael Lavery QC and Michael Keogh BL for the defendants/ respondents.

MR JUSTICE SHEIL said that the plaintiff was appealing against the refusal of the Master to order the defendants, the editor and proprietor of the Phoenix publication, to produce certain documents which the had listed in their list of documents.

The plaintiff had previously taken actions for libel against the Sunday World newspaper, its Northern Ireland editor its distributors, and the author of an article published in it. These actions, which had concerned the alleged use of foreshore and adjoining land at Killowen, County Down, had been consolidated and settled in favour of the plaintiff.

During the earlier proceedings, the plaintiff had given to the defendants in those actions discovery, of certain documents (the original documents), which original documents the plaintiff was now alleging had been the source of information later published by the present defendants in an article in the Phoenix.

The plaintiff was now seeking an injunction restraining, the defendants from using or disclosing any of the documents provided by the plaintiff on discovery in the earlier consolidated actions, or any of the information contained in those documents; an order requiring the defendants to return to the plaintiff the documents so obtained' the delivery up under oath of all the documents so obtained by the defendants and a list of names and addresses of all those to whom the contents of the documents were disclosed' together with damages and further relief.

The defendants in the present action by, their list of documents had not disclosed the original documents as haying ever been in their possession, custody or power. The defendants had disclosed that they had in their possession, custody, or power computerised invoices, records of payment to contributor of material for article complained of, but they now claimed privilege in respect of these documents.

The plaintiff had asked the Master to order the defendants to produce these documents for inspection, in order that the plaintiff might establish whether or not the original documents had been the source of the information contained, in the later article in the Phoenix, as maintained by the plaintiff but denied by the defendants. The Master had refused to make such an order.

The question to be decided was whether or not, the defendants could claim privilege in respect of the documents sought by the plaintiff.

In support of his claim of privilege, Mr Lavery QC for the defendants relied on section 10 of the Contempt of Court Act 1981 which, by reason of section 21(5) of that Act extended to Northern Ireland. It was accepted that there was no question of national security or prevention of disorder or crime being involved in the present case.

Accordingly, the issue in the present case was whether the plaintiff could establish that disclosure by production of the documents for inspection was necessary in the interests of justice.

Mr Justice Sheil said that in deciding whether or not to accede to an application under section 10, the court had to carry out a balancing test: As Lord Bridge had said in X Limited v Morgan Grampian Limited [1990] 2 All ER 1 at page 7, the court started with a number of assumptions: first, that protection of sources was itself a matter of high public importance; second, that nothing less than necessity would suffice to override it; and third, that the necessity could only arise out of concern for another matter of high public importance, being one of the four interests listed in section 10.

Lord Bridge had gone on in the A Limited case to say that in deciding the question whether disclosure was necessary was necessary in the interests of justice, the notion of justice was not to be construed in a general sense as being the antonym of "injustice". But neither should "justice" be construed solely as a technical term relating to the administration of justice before a court or, other tribunal: cf Secretary of State for Defence v Guardian Newspapers Limited [1984] 3 All ER 601 at 607.

Lord Bridge had said that it was bin the interests of justice" that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs, whether or not resort to legal proceedings in a court of law would be necessary to obtain these objective. So construing the term, Lord Bridge had said, emphasised the importance of the balancing exercise. It would not be sufficient to establish that disclosure was necessary for a party to show merely that he would be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he based his claim. The judge's task would always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise, it would only be if the judge was satisfied that disclosure in the interests of justice was of such a prepondering importance as to override the statutory privilege against disclosure, that the threshold of necessity would be reached.

There were, according to Lord Bridge, many factors relevant to the question of whether disclosure should be ordered in a particular case. Any given case would sit in a wide spectrum. The party seeking disclosure might be able to show that his very likelihood depended upon it. Nearer the other end of the spectrum would be a case where the party was seeking to protect a minor interest in his property. On the other side, the importance of protecting a source from disclosure would have to be considered. Factors such as the extent of legitimate public interest in the information which the source had given to the publisher or intended publisher, or whether the information was obtained legitimately or illegitimately by the source, would be relevant.

Turning to the facts of this case, Mr Justice Sheil said that it had been accepted on behalf of the plaintiff that no irreparable damage had been done to the plaintiff by the publication in the Phoenix. The case was concerned with a minor interest in property.

Mr Justice Sheil said that while it was probably true to say that, if an order for disclosure was not made, the plaintiff would be unable to establish the source of the information for the article in the Phoenix that in itself was not sufficient to override the statutory protection given by Section 10 of the Act.

Accordingly, the plaintiff had not made out the ease that it was necessary in the interests of justice that the statutory privilege be overridden, and the application would be dismissed.

Solicitors: John Johnson & Son (now Johnsons) (Belfast) for the plaintiff/ appellant; Eamonn McEvoy & Co (Lurgan) for the defendants/respondents.