Ashworth Hospital Authority v MGN Ltd

Reference: [2002] UKHL 29; [2002] 1 WLR 2033; [2002] EMLR 36; [2002] 4 All ER 193

Court: House of Lords

Judge: Lords Slynn, Browne-Wilkinson, Woolf CJ, Nolan and Hobhouse

Date of judgment: 27 Jun 2002

Summary: Breach of Confidence- identification of journalist's source- Norwich Pharmacal order- Section 10 Contempt of Court Act 1981- meaning of interests of justice exception - Article 10 and 10(2) of the ECHR.

Appearances: Desmond Browne QC - Leading Counsel (Defendant) 

Instructing Solicitors: Kerman & Co for the Defendant/Appellant

Facts

The Defendant newspaper published an article about the Moors murderer Ian Brady, reporting the fact that he was on hunger strike in protest at having been transferred to another ward. The article disclosed details and extracts of his medical files which were held on the PACIS database of the Claimant Hospital. The newspaper had received the confidential documents from an intermediary who had received it from a source who was likely to be a member of staff of the Claimant. Ian Brady had himself put much of the information about his medical treatment in the public domain. An order was made by Rougier J ordering the disclosure of the identity of the intermediary who leaked the medical information on Ian Brady. MGN appealed against the order on the grounds that: (1) The information was not confidential in the sense that it was already in the public domain; (2) As Brady had caused the information to be in the public domain, the Defendant was not a tortfeasor in publishing the extracts.

Issue

The Defendant Newspaper appealed the Court of Appeal’s decision to uphold the judge’s order and challenged it on the basus of the above issues. In particular, the newspaper criticised the Master of the Rolls’ judgment on the grounds that it expressed the view that the chilling effect of an order on journalists was “no bad thing”. The newspaper argued that this approach was wrong and turned Starsbourg jurisprudence on its head by detecting a social value in the deterrent effect of an order on other potential sources in the future.

Held

(1) The Norwhich Pharmacal jurisdiction applied where the person against whom the order was sought could be shown to have participated or become involved in the the wrongful act of another. In this case, the newspaper clearly was on notice that the information it received from the source was confidential and had been obtained in breach of a duty of confidence owed by the leaker of the information to the Claimant. (2) Whilst Brady could not complain about a breach of confidence after he had himself placed similar information in the public domain, this did not negate the Claimant’s independent right to retain the confidentiality of the medical records contained on its database. (3) The Norwich Pharmacal jurisdiction was not limited to cases where the injured person had already began or intended to bring proceedings against the wrongdoer and extended to cases where he intended to seek some other form of lawful redress.

Comment

The House of Lords confirmed that the correct approach to section 10 of the Act was the same as art 10 of the ECHR and that the definition of “interests of justice” in section 10 was wide enough to include cases where the injured party sought some form of lawful redress other than litigation thus preferring the approach of Lord Bridge of Harwich in X Ltd v Morgan- Grampian (Publishers) Ltd [1991] 1 AC 1 to Lord Diplock in Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339.