Mersey Care NHS Trust v Ackroyd (No.2)
Reference:  EWHC 107 (QB);  EMLR 260
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 7 Feb 2006
Summary: Disclosure of journalist's sources - Public interest - Norwich Pharmacal jurisdiction - s.10 Contempt of Court Act 1991 - Article 10 - s.12 Human Rights Act 1998 - Article 8
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Instructing Solicitors: Capsticks for the Claimant; Thompsons for the Defendant
The Trust sought an order that the defendant journalist disclose his source for information obtained about Ian Brady in 1999 and in particular explain how medical records came to be acquired and from whom. Following a spate of articles in The Mirror that suggested information leaks from within Ashworth hospital legal action was taken against Mirror Group Newspapers and the defendant was identified as an intermediate source. An article of 2 December 1999 gave rise to the proceedings: it included information provided by the Defendant in hard copy that derived from the hospital’s electronic patient data system (PACIS) and from an internal report.
Whether disclosure of the Defendant’s source should be ordered.
Declining to make an order, there was no pressing need to identify the source. An order for disclosure of the Defendant’s source would not be proportionate to the pursuit of the hospital’s legitimate aim to seek redress against the source. The hospital was unlikely to obtain the redress it sought. Tugendhat J found, inter alia: (1) Wrongdoing such as would pass the Norwich Pharmacal threshold was established: employees at the hospital were well aware of their duty of confidentiality. (2) Clearing employees of suspicion carried little weight. The size of the class under suspicion of leaks could not be determined and it could not be concluded whether the source had been an employee at all. (3) There had been a certain intention to act in the public interest as no payment had been made and no further disclosures had been made. (4) Although there was no sufficient public interest jusitification for the publication of the medical records, the journalist had acted responsibly.
A rare decision on the disclosure of journalist’s sources. The Judge went against the grain of the previous decisions (including the House of Lords) in the action against Mirror Group to reveal the intermediate source. This departure was based on different findings of fact and new evidence rather than any disinclination to find that medical records deserve legal protection. In particular, the hospital had ceased to contend that payment was a motivation and the scope of the disclosure was narrower than had been suggested hitherto.