Mersey Care NHS Trust v Ackroyd (No.1) (CA)
Reference:  EWCA Civ 663;  EMLR 820;  Lloyd's Rep Med 379;  FSR 820
Court: Court of Appeal
Judge: Ward, May & Carnwarth LJJ
Date of judgment: 16 May 2003
Disclosure of journalistic source - Public interest defence - Freedom of expression - Article 10 ECHR- Section 10 Contempt of Court Act 1981 - Summary judgment
Instructing Solicitors: Reid Minty for the Claimant; Thompsons for the Defendant
An article in the Daily Mirror referred to and quoted from the clinical notes relating to the murder Ian Brady held by Ashworth Security Hospital on its computer system. The hospital concluded that the notes must have been leaked to the press by an employee in breach of contract. The journalist who wrote the article had received the notes not directly from an employee at the hospital but through an intermediary. The House of Lords upheld an order for disclosure of the name of the intermediary (Ashworth Hospital v MGN). The intermediary then refused to reveal the name of his source. The hospital then sought an order that he do so and Gray J granted the hospital’s application for summary judgment. The intermediary appealed.
(1) Whether there was any real prospect of the intermediary not being ordered to disclose his source; (2) Whether there was any compelling reason why the case should be disposed of at trial.
(1) It was arguable that the source may have a public interest defence, in which case a claim based on Norwich Pharmacal would fail as there would be no wrongdoer. Even without a public interest defence, it was arguable that the public interest in the non-disclosure of medical records may not outweigh the public interest in confidentiality of the source. The amount of time that had passed since the article meant that it was arguable that there was no pressing need for the disclosure. (2) Further, there was a compelling reason why the case should be disposed of at trial: an order for disclosure of journalistic sources was an interference with the intermediary’s right to freedom of expression which could not be justified unless an overriding requirement in the public interest could be shown. Determining this question required a proper examination of the facts.
Disclosure of sources is one of the most difficult areas of media law. The law is uncertain, difficult to apply and the Court’s decisons not always easy to reconcile one with another or if measured against the ECHR’s decisions in the area. Gray J, applying the House of Lords decision in the connected case of Ashworth Hospital v MGN, ordered disclosure on the grounds that the public interest required that leaks of medical information be properly investigated and plugged. Ackroyd was the intermediary through which the information in the MGN case passed. If there was a public interest (so held by the House of Lords) requiring disclosure then it applied equally to Ackroyd. The Court of Appeal disagreed, finding that Ackroyd had a defence with a real prospect of success and that Summary Judgment should not have been granted.