Full case report

Mersey Care NHS Trust v Ackroyd (No.2) (CA)

Reference [2007] EWCA Civ 101; [2008] EMLR 1; (2007) 94 BMLR 84; (2007) HRLR 19; The Times, 26 February 2007
Court Court of Appeal

Judge Sir Anthony Clarke MR, Lord Neuberger & Leveson LJ

Date of Judgment 21 Feb 2007


Summary

Confidential information – Freedom of Expression – Journalistic sources – Medical records – Privacy – Protection of sources


Facts

The respondent journalist had acquired medical information about Ian Brady and supplied it to a national newspaper. The Hospital Trust (HT) wished to identify who had disclosed the information in order to discover the source and, if an employee, to discipline him in order to deter others. A disclosure order revealed only the journalist’s name, not the name of his source, of which HT then sought disclosure.

New evidence and the considerable passage of time led the judge to find, inter alia, that it was not possible to say that the source had been, or was an employee, the motive was a misguided attempt to act in the public interest and there was no evidence of any repetition of the disclosure. He concluded that there was no pressing social need that the source be identified, and that an order for disclosure was disproportionate to the pursuit of HT’s legitimate aim to seek redress against the source, given the public interest in protecting journalists’ sources.

HT appealed.


Issue

Whether the judge had erred in distinguishing the present claim for disclosure from the previous related decision upheld by the Court of Appeal and the House of Lords, in finding that on the facts of this case it was not “necessary and proportionate” to order Mr Ackroyd to disclose his source.


Held

The judge had correctly directed himself that the question was whether, at the time of judgment, it was necessary in the sense of there being an overriding interest amounting to a pressing social need, and proportionate, for the court to order the sources be disclosed. The key considerations on both sides of the argument had been properly taken into account and there was no basis to interfere with the balance of consideration which Tugendhat J had struck. The facts before the judge significantly differed from those in the action against the newspaper, partly due to new evidence and partly due to the passage of time, and he had been correct to hold that the differences were relevant factors.


Comment

In upholding the first instance decision, thus permitting the present claim to be distinguished from the related House of Lords decision, this Court of Appeal decision highlights the large extent to which the balancing of competing interests performed in such cases is inherently fact-dependent.


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Instructing Solicitors

Capsticks for the Claimant; Thompsons for the Defendant