Interbrew SA v Financial Times Ltd & Others

Reference: [2002] EWCA Civ 274; [2002] EMLR 446; [2002] 2 Lloyd's Rep 229

Court: Court of Appeal

Judge: Ward, Sedley & Longmore LJJ

Date of judgment: 8 Mar 2002

Summary: Disclosure - journalist's sources - section 10 Contempt of Court Act 1981 - interests of justice - Norwich Pharmacal - detection of crime - order for delivery up - Article 10

Appearances: Jonathan Barnes (Defendant) 

Instructing Solicitors: Farrer & Co & Clifford Chance for the Respondents

Facts

The Claimant’s advisers had carried out an assessment of a possible takeover bid by the Claimant of South African Breweries (SAB). Copies of the advisers’ presentation to the Claimant, including details of the takeover timetable and bid price, which the Claimant claimed were fabricated, were sent anonymously to the Defendants. Details of the document were published, with significant impact on the share prices of the Claimant and SAB. The Claimant applied for a Norwich Pharmacal order requiring the Defendants to deliver up their copies of the document in order to assist it to track down the source. The Defendants refused, since they wished to protect the identity of their source, and relied on s10, Contempt of Court Act 1981. Lightman J made the order sought, and the Defendants appealed.

Issue

Whether it was necessary in the interests of justice under s10 Contempt of Court Act 1981, to order delivery up of the Ds’ copies of the document.

Held

(1) Disclosure was necessary under s10 because the Claimant needed to identify the source, who had what on any view was a maleficent purpose. The public interest in protecting such a source could not withstand the countervailing interest in allowing the Claimant to pursue the source. Appeal dismissed.
(2) Detection of crime is not a proper object of the Norwich Pharmacal jurisdiction.

Comment

There was no trial, so the Claimant’s assertions about the circumstances in which the document came to be created, and about the likely purpose of the leak, could not be tested: instead, they were assumed against the Defendants. Hence the harm done to the Claimant, and the need for the Claimant to proceed against the source, were not certain, but the impact on the Defendants’ Article 10 rights was obvious. Since the decision of the CA in Mersey Care NHS Trust v Ackroyd, this summary approach is unlikely to be repeated in s10 cases. The Defendants were unable to obtain leave to appeal to the HL, so an application to the ECHR in Strasbourg is pending.