Contempt

Sources of information - application for disclosure - alternative means of identification of source to be explored firstJohn and Others v Express Newspapers and Others: CA (Lord Woolf MR, Pill and May LJJ): 19 April 2000

The fifth claimants, who were solicitors, instructed counsel to advise the first four claimants in their litigation against a firm of accountants.A copy of counsel's draft advice was, without authorisation, provided to a journalist.

No investigation was carried out by counsel's chambers into the breach of security which had occurred.The claimants sought an order against the journalist, her editor and newspaper under s.10 of the Contempt of Court Act 1981 for disclosure of the identity of the person who had provided them with the draft advice.The judge, who found that it was unlikely that the source was from within chambers and that any inquiry within chambers was likely to be utterly impracticable, concluded that disclosure was necessary in the interests of justice because of the need to protect legal professional privilege and he made the order sought.

The defendants appealed.Michael Beloff QC and Patrick Moloney QC (instructed by Richards Butler) for the defendants.

David Pannick QC, Neil Calver and Carine Patry (instructed by Eversheds) for the claimants.Held, allowing the appeal, that it was important that clients should be able to consult their lawyers with assurance that their confidence was not at risk of being betrayed; that, if that principle was in danger of being damaged, disclosure of a journalist's source might be necessary to protect the interests of justice under s.10 of the 1981 Act; but that before journalists were required to break their professional obligation to protect a source, the minimum requirement was that other avenues of identifying that source should be explored; that it could not be assumed that the culprit could not be found or that the possibilities could not be narrowed down; that it was a case of one-off infringement of professional legal confidentiality which did not justify making an inroad into the privilege of the journalist to protect her source; and that, accordingly, the order would be set aside (WLR).