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Cite as: [1998] EMLR 1, [1998] IRLR 80, [1999] QB 124, [1997] EWCA Civ 2554, [1998] 2 WLR 379, [1998] 1 All ER 251

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CAMELOT v. CENTAUR COMMUNICATIONS LIMITED [1997] EWCA Civ 2554 (23rd October, 1997)

IN THE SUPREME COURT OF JUDICATURE QBENI 97/0962/E

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(Mr Justice Langley )

Royal Courts of Justice

Strand

London WC2

Thursday 23rd October, 1997

B e f o r e:

LORD JUSTICE SCHIEMANN

LORD JUSTICE THORPE

LORD JUSTICE MUMMERY

- - - - - -

CAMELOT

Respondent

- v -

CENTAUR COMMUNICATIONS LIMITED

Appellant

- - - - - -

(Handed down Transcript of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

- - - - - -

MR A NICOL QC and MR B EMERSON (Instructed by Messrs Davenport Lyons, London W1X 2NL) appeared on behalf of the Appellant

MR D PANNICK QC and MISS N ELLENBOGEN (Instructed by Messrs Baker McKenzie, London EC4 6JA) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As Approved by the Court )

- - - - - -

Crown Copyright

Thursday 23rd October, 1997

JUDGMENT

LORD JUSTICE SCHIEMANN: This appeal relates to an employer of an employee who has disclosed his employer’s confidential information to a journalist. The employer obtained from Maurice Kay, J., an order which effectively requires the owners of the newspaper to whom the journalist had passed the information to disclose his source. The employers wanted to know the name of their disloyal employee. Maurice Kay, J., made the order sought by the employers but stayed it pending appeal. The appeal turns on the application of s.10 of the Contempt of Court Act 1981 which was passed in order that our domestic law might reflect Article 10 of the European Convention of Human Rights.

THE FACTS

The facts are uncontentious and are well set out in the judgment under appeal from which I gratefully take the following:-

“The plaintiff is authorised to run the National Lottery pursuant to a licence granted to it under the National Lottery Etc Act 1993. It has five shareholders four of which are quoted public companies. Its financial and accounting year ends on the 31st March. It intended to publish a preliminary financial statement on 3 June 1997. In preparation for that a draft preliminary financial statement was prepared. For the sake of convenience I shall refer to these sets of documents respectively as ‘Final Accounts’ and ‘Draft Accounts’. Normally the media and the public would have known nothing of these documents until 3 June. However, an unknown person caused a copy of the Draft Accounts to be sent to a journalist employed by the defendant. The journalist is well known for articles about the National Lottery. He wrote an article which was published by the Defendant in Marketing Week in an issue dated 29 May 1997 but which seems to have been available on 28 May. It was a whole page article under the headline “Camelot chiefs’ pay soars as good cause funds fall” and, in smaller lettering, “Camelot’s leaked year end results, showing huge payouts for directors, will spark ‘fat cats’ storm”. On 28 May 1997 the Plaintiff obtained an ex parte order from Langley J restraining the Defendant from using any confidential information of whatever nature and, in particular, the unaudited Draft Accounts for the year ending 31 March 1997; and further restraining the publishing, distributing or otherwise disseminating of any information relating to and/or obtained with the assistance of such confidential information and, in particular, in the aforesaid article. The order also required the Defendant to deliver up forthwith to the Plaintiff the Plaintiff’s unaudited Draft Accounts and all copies made of such documents together with any other confidential information of which the Defendant was in possession or to which it had access. Later the same day there was an inter partes hearing in which the order was refined and the part of it dealing with delivery up was stayed pending further order. The stay was on terms requiring the Defendant to deliver up all relevant documents to its solicitors pending further order. The publication of the article in Marketing Week lead to considerable criticism of the Plaintiff and its directors. The Plaintiff hurriedly brought forward the date of publication of the Final Accounts with the effect that they were published six days before 3 June. It is well known that the matters disclosed by the article in Marketing Week , which soon spread to the rest of the media, incurred the wrath of the Government. Meetings were held between the Plaintiff’s Directors and the responsible government minister. This all occurred amid a blaze of publicity which, so far as the Plaintiff was concerned, was unwelcome publicity resulting in an eventual agreement between the Plaintiff and the Minister whereby the Plaintiff agreed to give further sums to charity and good causes.

So far as the prohibitory injunction is concerned there is no remaining issue between the parties. The affidavit of Mr Stuart Smith, the Editor of Marketing Week , states:

“The defendant has no intention of using, publishing or otherwise disseminating any of the material included in the Draft Accounts now in the possession of its solicitors which does not appear in the Final Accounts nor to comment on any differences in the wording of the Draft Accounts and the Final Accounts.”

And later:

“I confirm that the Defendant is content for the documentation in the possession of its solicitors to be destroyed and that such destruction be verified by affidavit.”

Such destruction is not a solution which would satisfy the Plaintiff. The Plaintiff continues to seek the return of the documents in order to help it with the identification of the source of the leaked information. Mr Smith states in his affidavit:

“(The documents) do contain references, dates and notes which could easily lead to the identification of the source of the information.”

An affidavit by Mr Peter Murphy, the Financial Director of the Plaintiff, states:

“The source has stolen documents which are the property of the Plaintiff. It is clear from the material to which the unidentified source had access that he or she must be operating at a high level within the organisation or has access to those who are working at that high level. An internal enquiry conducted by Neil Dickens, the Plaintiff’s Director of Security, has established that the leak could only have come from a person working at the Plaintiff’s offices or someone to whom such person had given the document. The internal enquiry has not been able to identify the person responsible.”

That encapsulates the present dispute between the parties. The Plaintiff wants the return of the documents in order to assist it in the identification of the source. The Defendant seeks the destruction of the documents because it is anxious to protect the identity of the source.”

Later in his judgment Maurice Kay, J., said:

“It is an irresistible inference that the source of the leaked information was either an employee of the plaintiff or someone with access to such an employee. In either case it is to be inferred that an employee has acted in breach of his or her contractual and/or fiduciary duties and that a copy of the Draft Accounts, was stolen. There is evidence that this is not the only occasion on which an insider has been party to the leaking of the plaintiff’s confidential information. The very article in Marketing Week which precipitated this litigation referred to the present disclosures as ‘an embarrassment’ to the plaintiff ‘which has been plagued by top level leaks over the past year’. It refers to specific instances including two in which Marketing Week itself published ‘revelations’. And the Evening Standard for 28 May, exhibited to the affidavit of Mr Smith, also refers to the plaintiff as having been plagued by ‘embarrassing leaks’. The affidavit of Mr Murphy states:

“The plaintiff believes that, unless identified and discussed [1], the unauthorised source of sensitive information will continue to damage the effective operation of the plaintiff’s activities. There are two main concerns:

(1) No business can continue to operate effectively when it knows that it has, within its midst, a person at a high level (or with access to a high level of activities) who is leaking information. This inevitably damages the confidence and trust which those concerned with running the business have in each other. Until the culprit is identified and removed, suspicions will impede the effective management of the plaintiff. This is especially damaging when the plaintiff exists to conduct the National Lottery in an effective manner in the public interest. As a result of the leak to Marketing Week all those involved in the preparation of the Draft Accounts and all those who received a copy of the relevant documents (including secretarial staff) have been interviewed ... by the plaintiff’s security staff. In our opinion, the climate of suspicion has considerably damaged morale at the plaintiff’s offices and will continue to do so until the culprit is caught, not least because a number of people feel themselves to be wrongly under suspicion ...

(2) The plaintiff is very concerned about damage that the source may do in the future by disclosing information. The plaintiff is entrusted with a large amount of confidential information which it has a duty to protect and which newspapers are very anxious to obtain ...: in particular the names and addresses of lottery winners who wish to remain anonymous. It is important that Camelot should be able to identify and remove the culprit to avoid the substantial risk of further disclosures in the future.”

Mr Nicol says that the defendant does not accept these assertions and that I should not accept them. It is of course incumbent upon me to satisfy myself as to the credibility of any assertions made by a plaintiff on affidavit. However, the passages from the affidavit of Mr Murphy to which I have just referred seem to be both highly credible and virtually self-evident in the circumstances of this case. I am also satisfied that:

(1) The National Lottery is conducted under a media spotlight (and justifiably so) and the plaintiff has a very substantial interest in protecting its integrity - a matter which is not diminished by the fact that the plaintiff has a monopoly for the duration of its licence.

(2) The source leaked the information unlawfully and in all probability criminally.”

THE LAW

Much of the law is equally uncontentious and once more I can quote from the judgment under appeal :-

“There is no doubt that, but for the provisions of section 10 of the Contempt of Court Act 1981, the Plaintiff would have an uncomplicated claim for the return of the documents on the basis that they are its own property or because of a breach of confidence or pursuant to the principle in Norwich Pharmacal Company v Customs and Excise Commissioners [1974] AC 133. The fundamental issue at this stage of these proceedings relates to the application of section 10.

Prior to the enactment of the 1981 Act, issues surrounding the disclosure of a journalist’s sources of information were decided on a case-by-case basis at common law. All that changed with the enactment of section 10 which provides:

‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.’ ”

The judge also drew attention to the following passage from the speech of Lord Bridge in X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 A.C. 1, at p.44 :-

“In estimating the weight to be attached to the importance of disclosure in the interests of justice on the one hand and that of protection from disclosure in pursuance of the policy which underlies section 10 on the other hand, many factors will be relevant on both sides of the scale. It would be foolish to attempt to give comprehensive guidance as to how the balancing exercise should be carried out. But it may not be out of place to indicate the kind of factors which will require consideration. In estimating the importance to be given to the case in favour of disclosure there will be a wide spectrum within which the particular case must be located. If the party seeking disclosure shows, for example, that his very livelihood depends upon it, this will put the case near one end of the spectrum. If he shows no more than that what he seeks to protect is a minor interest in property, this will put the case at or near the other end. On the other side the importance of protecting a source from disclosure in pursuance of the policy underlying the statute will also vary within a wide spectrum. One important factor will be the nature of the information obtained from the source. The greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of protecting the source will be the manner in which the information was itself obtained by the source. If it appears to the court that the information was obtained legitimately this will enhance the importance of protecting the source. Conversely, if it appears that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counter balanced by a clear public interest in publication of the information, as in the classic case where the source has acted for the purpose of exposing iniquity. I draw attention to these considerations by way of illustration only and I emphasise once again that they are in no way intended to be read as a code. “

Although the order sought by the Plaintiff is not in terms an order requiring disclosure of the source of information, it is clear that disclosure or facilitation of disclosure would be the effect of the order. In these circumstances section 10 is applicable.

The 1981 Act was enacted to bring domestic law into line with the requirements of the European Convention on Human Rights. The relevant Article for present purposes is Article 10 :-

‘1. Every one has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

The leading English case in this field is the House of Lords decision in X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 A.C. 1. The Leading case in the European Court of Human Rights is Goodwin v United Kingdom (1996) 22 EHRR 123 which dealt with the same facts as those which had been the subject of the House of Lords decision and, in effect, came to the opposite conclusion.

THE SUBMISSIONS ON THE LAW

Mr Nicol Q.C. for the appellant newspaper submits that applying the approach laid down in s.10 of the Contempt of Court Act as interpreted by the House of Lords in X this appeal should succeed. He submits, in the alternative, that Goodwin establishes a stricter standard of necessity than was laid down in X , that the English Courts should apply that stricter standard, and that if we do that we must allow the appeal. Mr Pannick Q.C. for the respondent submits that the principles set out in Goodwin do not differ from those in X, alternatively, that if they do differ from those in X this court is bound by X, and that the judge correctly applied the principles in X.

Mr Nicol submitted that the judge erred in treating the consideration that disclosure by an employee with access to confidential and important information was one which was capable of amounting to a ground for ordering disclosure in the interests of justice.

CONCLUSIONS AS TO THE LAW

I accept Mr Pannick’s submission that, as appears from both X and Goodwin, in cases such as the present the legal principles to be applied are the following:

1. There is an important public interest in the press being able to protect the anonymity of its sources.

The ECHR put the matter this way [2]-

’Protection of journalistic sources is one of the basic conditions of press freedom.... Without such protection sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure can not be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.’

Lord Bridge in X[3], quoted some words of Griffiths L.J. in an earlier case with approval:-

The press have always attached the greatest importance to their ability to protect their sources of information. If they are not able to do so, they believe that many of their sources would dry up and this would seriously interfere with their effectiveness. It is in the interests of all of us that we should have a truly effective press, and it seems to me that Parliament by enacting section 10 has clearly recognised the importance that attaches to the ability of the press to protect their sources......

Lord Bridge went on to state that a judge must

start with the assumptions, first, that the protection of sources is in itself a matter of high public importance,secondly, that nothing less than necessity will suffice to override it, thirdly that the necessity can only arise out of concern for another matter of high public importance, being one of the four interests listed in the section.

2. The law does not however enable the press to protect that anonymity in all circumstances.

It is clear from Article 10 of the Convention and indeed the concluding words of the passage from the ECHR judgment which I have just cited that the ECHR fully accepts that the protection from anonymity of sources is not to be accorded in all cases. The same appears from the passage from Lord Bridge just quoted.

3. When assessing whether an order forcing disclosure of the source should be made, a relevant but not conclusive factor is that an employer may wish to identify the employee so as to exclude him from future employment.

In Goodwin[4] the ECHR said of the employer in that case

It also had a legitimate reason as a commercial enterprise in unmasking a disloyal employee or collaborator who might have continuing access to its premises in order to terminate his or her association with the company. These are undoubtedly relevant reasons.

In X Lord Bridge said

It is, in my opinion, ‘in the interests of justice’, in the sense in which this phrase is used in section 10, that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives. Thus, to take a very obvious example, if an employer of a large staff is suffering grave damage from the activities of an unidentified disloyal servant, it is undoubtedly in the interests of justice that he should be able to identify him in order to terminate his contract of employment ....

I consider that this factor, even standing alone, can in some cases be strong enough to outweigh consideration 1. I reject Mr Nicoll’s submission to the contrary. That said, I certainly accept that this will not inevitably be the case. Such breaches of confidence are very commonly the background to the obtaining of stories by the press and to elevate the principle of confidentiality into an invariably dominating position in cases where the issue was whether the press should be forced to disclose its source, would risk posing a serious threat to the obtaining of information by the press.

4. Whether sufficiently strong reasons are shown in a particular case to outweigh the important public interest in the press being able to protect the anonymity of its sources, will depend on the facts of the particular case.

The ECHR in Goodwin , after the citation which I have just made, pointed out that the mere fact that there is present a disloyal employee will not invariably lead to an order for disclosure.

On the facts of the present case (my italics) , the Court can not find that Tetra’s interest in eliminating, by proceedings against the source the residual threat of damage through the dissemination of the confidential information...and in unmasking a disloyal employee or collaborator were, even considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist’s source.

The judgment of Lord Bridge equally repeatedly makes it clear that he is coming to a conclusion on the facts of that case without suggesting that all cases with a disloyal employee element must be decided in the same way.

In my judgment the tests which the ECHR and the HL applied were substantially the same. I am conscious that they reached different conclusions on the same facts but this is a no more surprising legal phenomenon than this court concluding that a particular course of conduct amounted to negligence when the court of first instance concluded that the very same course of conduct did not amount to negligence. This phenomenon of judges coming to different conclusions although applying the same principles to the same facts is illustrated in Goodwin. The minority, which came to the same conclusion as the H.L., states in paragraphs 2 and 3 of its judgment:-

We of course fully accept that, as is recalled in paragraph 39 of the judgment, freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. We likewise agree, as the paragraph goes on to say,’Protection of journalistic sources is one of the basic conditions of press freedom....Without such protection sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.’ It follows that an order for source disclosure cannot be compatible with Article 10 of the Convention unless it is justified under paragraph 2 of that Article.

Where we part company with the majority is in the assessment of whether, in the circumstances of the present case, such a justification existed - whether, in particular, the test of necessity in a democratic society should be regarded as having been satisfied.

In this type of case there are two possible future disclosures of which the owner of information may legitimately be afraid - further disclosure of the information which the source has already disclosed to the journalist and disclosure of further information at some time in the future. The House of Lords in X were concerned with the first of these fears. Thus Lord Bridge said [5]

The plaintiffs here seek the identity of the source to enable them to take the necessary steps to protect themselves from other tortious dissemination of the (my italics) confidential information which threatens to damage them so severely.

and[6]

The importance to the Plaintiffs of obtaining disclosure lies in the threat of severe damage to their business, and consequentially to the livelihood of their employees, which would arise from the disclosure of the information in their corporate plan while their financing negotiations are continuing.

Lord Oliver [7] similarly refers to

the importance to the Plaintiffs of ensuring that further dissemination of the highly confidential material contained in the stolen document should be prevented...

The Commission [8], by contrast,

is not convinced that the giving of information as to possible losses and the intention of the company to seek further refinancing would have entailed the dire consequences predicted with regard to confidence of customers, suppliers and financing partners.

The E.C.H.R. in effect adopted the Commission’s view of the facts and stated [9]

the Court can not find that Tetra’s interest in eliminating, by proceedings against the source the residual (my italics) threat of damage through the dissemination of the confidential information...and in unmasking a disloyal employee or collaborator were, even considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist’s source.

The difference of opinion between the House of Lords and the E.C.H.R. seems to me in large measure to be attributable to this different view taken of the facts.

5. In making its judgment as to whether sufficiently strong reasons are shown in any particular case to outweigh the important public interest in the press being able to protect the anonymity of its sources, the domestic court will give great weight to the judgments, in particular recent judgments, made by the E.C.H.R. in cases where the facts are similar to the case before the domestic court.

That court has unrivalled experience in this field and it would be foolish not to take advantage of that experience. The tensions which the E.C.H.R. has to resolve are similar to those facing the domestic court and this will often be the case even though a particular case before the E.C.H.R. sprang from facts in a country other than England.

THE SUBMISSIONS ON THE FACTS

Mr Nicoll submitted

1. The disclosure of the draft accounts did not pose any significant threat to the financial viability of the company.

2. The accounts of the company running the National Lottery were a matter of legitimate public interest. In particular, the public were legitimately interested in knowing how much of the money which was paid into the lottery went into the pockets of the directors.

3. There was no reason to suppose that the source had not obtained the draft accounts legitimately, albeit that it had to be accepted that the disclosure was a breach of the duty of confidentiality.

4. The risk that the disloyal employee might, in breach of confidence, disclose in the future information such as the identity of prize winners was too speculative to form a sound basis for decision.

CONCLUSION

I agree with the conclusion of the judge. My evaluation of the facts of the present case is similar in one respect to that of the E.C.H.R. in Goodwin. There is no threat now posed to the Plaintiffs by further disclosure of the draft accounts. Such threat as there was has been dealt with by injunction or undertaking in relation to that material and the passage of time. There is however a continuing threat of damage of a type which did not feature significantly in Goodwin or in X namely that alluded to in the affidavit of Mr Murphy and accepted by the judge. Clearly there is unease and suspicion amongst the employees of the company which inhibits good working relationships. Clearly there is a risk that an employee who has proved untrustworthy in one regard may be untrustworthy in a different respect and reveal the name of, say, a public figure who has won a huge lottery prize.

This is not a case of disclosing iniquity. It is not a whistle blowing case.

It did not significantly further the public interest to secure the publication of this item a week earlier than planned. The source knew that publication was planned a week later. I do not regard as a significant factor the point urged by Mr Nicol that early publication prevented the directors from, in the cant phrase, ‘putting a spin on’ the presentation of the figures which would make them more palatable to ministers and the public and that the inhibition of this is in the public interest. Whether the public heard the relevant news a week earlier or later is of no significant weight.

There is a public interest in protecting sources. But it is relevant to ask ‘what is the public interest in protecting from disclosure persons in the position of the source in the present case ?’. Is it in the public interest for people in his position to disclose this type of information? Embargoes on the disclosure of information for a temporary period are a common and useful feature of contemporary life. It does not seem to me that if people in the position of the present source experience the chilling effect referred to by the E.C.H.R. the public will be deprived of anything which it is valuable for the public to have.

It is clear that the public interest in protecting some sources is stronger than that in protecting other sources. So far as the present case is concerned I can see no public interest in protecting him. There remains however an important consideration. To some extent the effect of disclosing the identity of one source who has leaked unimportant material can have a chilling effect on the willingness of other sources to disclose material which it is important. If the other sources are put in the position of having to guess whether or no the court will order disclosure of their names then they may well not be prepared to take the risk that the court’s decision will go against them. That is a consideration, however, which will only be met if there is a blanket rule against any disclosure. That is, however, not part of our domestic law or of the Convention. So the well informed source is always going to have to take a view as to what is going to be the court’s reaction to his disclosure in the circumstances of his case.

The judge took the view that the public interest in enabling the Plaintiffs to discover a disloyal employee in their midst who leaked the confidential information which he did leak was greater than the public interest in enabling him to escape detection. I agree with the judge and would dismiss the appeal.

Thorpe LJ:

I have had the advantage of reading in draft the judgments of Schiemann and Mummery LJJ and at once express my complete agreement with their reasoning and conclusion.

I would only emphasise three points of importance to me on the route to conclusion.

First I accept Mr Pannick’s submission that there is no material difference of principle underlying section 10 of the Contempt of Court Act 1981 as applied by the courts of this jurisdiction and Article 10 of the European Convention on Human Rights as applied by the ECHR. That the two systems produce different outcomes on the same facts does not establish or perhaps even suggest the contrary. The appreciation of individual factors relevant to the essential balancing exercise is likely to vary in different tribunals. The making of a value judgment on competing facts is very close to the exercise of a discretion dependant on those facts. Furthermore in Goodwin’s case there was a lapse of six years between the performance of the balancing exercise in London and in Strasbourg. In such a period standards fundamental to the performance of the balancing exercise may change materially.

Second the material published was en route to the public domain and would have been universally read six days later without the action of the individual whose identity the appellants seek to conceal.

Third I was not impressed by Mr Nicol’s submission that his failure on this appeal would have reverberations deterring others from disclosure to the public detriment. An individual case decision would only have that consequence if it were to establish a new boundary or shift an existing boundary. An individual who contemplates giving or selling confidential material to a publisher in breach of his contract of employment knows that he will thereby risk his future security and perhaps that of his dependants. The higher his position presumably the more carefully he will weigh the risks. Surely he would be wise to inform himself as to how the courts apply section 10. If he takes from this decision the message that he is at risk I cannot myself see public detriment. There is a public interest in loyalty and trust between employer and employee.

Mummery LJ:

I agree. I wish to express some short conclusions in my own words, on account of the intrinsic interest of the subject and in tribute to the valuable judgment of Maurice Kay J and to the stimulating submissions of Mr Nicol QC and Mr Pannick QC.

1. Section 10 of the Contempt of Court Act 1981 restricts the exercise of the Court's power to compel disclosure of a source of information. It also confers an immunity from contempt of court on a person who refuses to disclose a source of information. Both the restriction and the immunity are based on a general public interest in access to information which might not become available to the public if apprehension of unmasking inhibited the source of the information from making disclosure.

2. The restriction on the Court's powers is not absolute. The shield of immunity is not impregnable. It may be established in a particular case that it is necessary, on account of another public interest ( justice, national security, detection of crime), to disapply the restriction and the immunity so that the source of information may be disclosed.

3. The interests of justice, referred to in Section 10, embrace the enforcement of a civil obligation against a wrongdoer: an employer in the position of Camelot Group has a legitimate and continuing interest in enforcing an obligation of loyalty and confidentiality against an employee who has made unauthorised disclosure and use of documents acquired by him in his employment. It is impossible for the employer to protect his interests unless the perpetrator is identified. In this case it has not proved possible for Camelot Group to identify the employee without recourse to the Court's powers to order the return of improperly removed documents which may enable it to identify the internal source of the leak.

4. No public interest is served in shielding this source from exposure. The information leaked by this source and publicised on the 28 May 1997 was in any event planned for authorised publication by Camelot on the 3 June. Rather than serving a public interest, it appears that the prior and premature disclosure and publication of the draft accounts served a private purpose of the source or a private purpose of Centaur Communications in securing a scoop, ahead of other publications, of information which would have become legitimately available to the public 5 days later.

5. The reasoning of the European Court of Human Rights in Goodwin -v- United Kingdom (1996) 22 EHRR 123 would not, on the facts of this case, lead to a different result. Section 10 of the 1981 Act is a legislative recognition of the importance to the Press of the protection of journalists' sources. The necessity for an order for disclosure of this source is convincingly established.

This appeal should be dismissed.

ORDER: Appeal dismissed with costs. Stay refused. Leave to appeal refused.

----------oOo----------

[1] The transcript of the judgment says “discussed” : The affidavit says “dismissed”. There appears to be an error in the transcript.

[2] at p.143

[3] at p.41

[4] at p.145

[5] at p.40

[6] at p.45

[7] at p.54

[8] at p.138

[9] at p.145