Ackroyd v Mersey Care NHS Trust [2003] EWCA Civ 663

Case No A/2/2002/2256

Neutral Citation Number: [2003] EWCA Civ. 663

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The Hon Mr Justice Gray

Venue Royal Courts of Justice

Date Friday 16 th May 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE WARD

LORD JUSTICE MAY

LORD JUSTICE CARNWATH

Between

ROBIN ACKROYDAppellant

MERSEY CARE NHS TRUSTRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

G Millar QC and A Hudson (instructed by Thompsons) for Appellant

V Nelson QC and C Thomann (instructed by Capsticks) for Respondent

Judgment

As Approved by the Court

Introduction

[1]Robin Ackroyd is an investigative journalist. He appeals, with hesitant leave of Simon Brown LJ, against the judgment and order of Gray J of 18th October 2002. The judge gave summary judgment in favour of the claimant and ordered Mr Ackroyd to identify any employee of the claimant who was involved in Mr Ackroyd acquiring possession of PACIS records kept by the claimant in respect of Ian Brady. This case is a sequel to the case of Ashworth Hospital Authority v. MGN Limited. That case was decided after a trial by Rougier J. It proceeded to the Court of Appeal (

[2001] 1 WLR 515

) and then the House of Lords (

[2002] 1 WLR 2033

The Mirror Article

[2]Ashworth Hospital, as it was until recently known, is a secure hospital provided by the Secretary of State for Health under sections 1 and 4 of the National Health Service Act 1977 (as amended) for persons subject to detention under the Mental Health Act 1983 who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. It is now the responsibility of the claimant. I shall refer to it as “the hospital”.

[3]Ian Brady is one of the “Moors Murderers” convicted at Chester Assizes on 6th May 1966. He has been detained ever since. In 1999, he was detained in the hospital. From June 1995 he had been accommodated on Jade Ward. Shortly before 30th September 1999, the hospital decided that he should be moved to Lawrence Ward. He was not told about this intention in advance. Brady gave his account of this and subsequent events in letters to the BBC during October and November 1999 which the BBC published. He wrote that he was sitting on his bed writing notes, when a crowd of warders rushed in dressed in riot gear with visored crash helmets and plastic shields. Without explanation, his arms were wrenched violently up his back, fracturing a bone in his wrist, and his head was held down to the floor. He was then dragged into an empty cell and, always pinioned in the same position, stripped and searched. Again always violently pinioned, he was eventually dragged into a van and transported to a ward. The unprovoked attack by the riot-gear prison warders continued for over an hour. His solicitors brought in the police and charges against the warders and legal action against the hospital were contemplated.

[4]In reaction to these events, Brady stopped eating solid food and went on hunger strike. This continued during October 1999. By the end of the month, he had lost more than a stone in weight and his medical condition was giving cause for concern. The hospital decided that he should be forcibly fed. The legal authority for doing this was section 63 of the Mental Health Act 1983. The forcible feeding started on 29th October 1999. It was done by inserting a nasogastric tube through which food was delivered. Brady’s own account of this in his letters to the BBC stated that those performing this procedure threatened violence if he resisted. His doctor wanted blood samples, again threatening violence if he resisted. It took three attempts and three x-rays simply to insert the tube up his nose and down his throat. The first attempt went into his duodenum. He had at the time of the letter had the tube in his nose and throat for five days, helping him to lose what little sleep he got. They syringed freezing fluids straight from the fridge into his stomach and he had been wearing an overcoat to keep warm ever since.

[5]The hospital instituted an inquiry into Brady’s complaints. This was carried out by Professor Sines. His report was dated 30th November 1999 and delivered to the Department of Health on 1st December 1999. It has not been made public, although a copy of it was provided to Mr Brady’s solicitors on terms as to confidentiality. This court has not seen it. It was however seen by Maurice Kay J who heard and decided a judicial review application by Brady on 10th March 2000. Brady sought in those proceedings judicial review of the decision to continue to feed him forcibly against his wishes. Maurice Kay J dismissed the application. He was entirely satisfied that the decision to commence and continue force-feeding was justified by reference to section 63 of the Mental Health Act 1983 and was in all respects lawful, rational and fair. His judgment records that Professor Sines’ report was trenchantly critical of the moving of Brady from Jade Ward to Lawrence Ward on 30th September 1999. The report concluded that flaws in the organisation and management of the move resulted in its implementation falling short of the standard the hospital should set itself. On the other hand, Professor Sines considered that the commencement of force-feeding had been correct and that the procedure in relation to it had been professionally administered in accordance with prescribed practice standards.

[6]On 2nd December 1999, the day after Professor Sines’ report had been delivered to the Department of Health, a long article appeared in the Mirror under the heading “Death Wish Diary – Hunger strike Brady is determined to die”. The article gave an account of his then seven week hunger strike. It referred to his desperation to die as being revealed in a confidential diary of his deteriorating condition kept by the authorities at the hospital. It stated that Brady started his hunger strike after staff in riot-gear searched his room before moving him to a tougher ward. During the swoop, he claimed his wrist was fractured while he was held in an arm lock for up to an hour. He had started legal action for assault and was seeking the right not to be force-fed. The diary started the following day, 1st October 1999. There is then a number of fairly short quoted extracts for fourteen of the days between 1st October and 29th October 1999. These concern in the main descriptive details of the progress of his hunger strike leading to the decision to feed him forcibly. The article stated that controversy now surrounded the way that Brady was forcibly fed on 29th October 1999 with high-energy liquid through a nasogastric tube. Nurses struggled twice to insert the plastic tube in his nose, before a doctor was called and told them to use anaesthetic gel to make the process less painful. The liquid came straight from a fridge, rather than being warmed to room temperature. “As the tube was being pushed down Brady’s throat a manager mocked him by making gagging and gurgling noises, an independent inquiry into the treatment was told.” Brady claimed that he was mistreated and was determined to seek “justice”. All that was said in the report was:

“The tube was inserted. An x-ray confirmed that it was appropriately placed. Mr Brady was clearly expecting at some level something along these lines would take place and took it all in a resigned fashion. He was courteous throughout.”

[7]The article then stated that Professor Sines’ report was delivered to the Health Department on the previous day. After giving details of the murders and of Brady’s condition before these events, the article stated that “his hunger strike has plunged top security Ashworth – twice recommended for closure by official reports – into crisis yet again”.

[8]The “diary” referred to and quoted in this article was a series of Clinical Notes relating to Brady held by the hospital on a PACIS computer system. These had obviously been leaked to the Press and the hospital concluded that the source must have been an employee within the hospital. Their employees’ contracts of employment contain a clause forbidding them from disclosing to any unauthorised person information concerning the hospital’s business or the patients in its care. They were forbidden from copying, abstracting or making a summary of documents relating to the Authority. The direct quotations from Brady’s Clinical Notes showed that someone was in breach of this clause. The hospital also regarded it as a breach of confidentiality. They accordingly took proceedings against MGN Limited, the publishers of the Mirror, seeking disclosure of the newspaper’s source of the Clinical Notes. They did not seek disclosure of the source of other information which appeared in the article of 2nd December 1999 which could not be derived from the information which Brady himself had disclosed in his letters to the BBC and which was not derived from the Clinical Notes. That class of information appears to have included the fact that the independent inquiry, apparently the Professor Sines’ Inquiry, was told that as the tube was being pushed down Brady’s throat a manager mocked him by making gagging and gurgling noises. Subsequent quoted passages, which could be read as coming from the unpublished Sines’ Report, now look as if they were in fact quotations from the Clinical Notes.

The MGN Litigation

[9]The action against MGN Limited was tried by Rougier J. He heard evidence, including evidence from witnesses from the hospital and from Gary Jones, the journalist who wrote the article in the Mirror. Mr Jones had been provided with the Clinical Notes, not directly from an employee at Ashworth, but through an intermediary. He had destroyed what he had received after he had written the article. His recollection was unclear as to whether he had received Brady’s entire Clinical Notes between 1st and 29th October 1999 or an abstracted version.

[10]Rougier J made an order requiring MGN Limited to disclose the source from which they obtained the PACIS record. As to the effect of the leak, he recorded that witnesses called on behalf of the claimant had given him reasons which he found compelling whereby a leak such as this had the effect of creating a highly detrimental impact on the security of the hospital, the treatment of its patients, and the morale of the staff.

[11]MGN appealed and this court dismissed their appeal. Lord Phillips of Worth Matravers MR gave the leading judgment. He considered the evidence relating to the question whether Gary Jones received the entire Clinical Notes for Brady between 1st and 29th October 1999 or just extracts. He concluded that the overwhelming likelihood was that the source provided to the intermediary a print out from the PACIS database of the daily “running records” in relation to Ian Brady for the period and that this was faxed on by the intermediary to Mr Jones in its entirety. From this information Mr Jones selected the short extracts that were included in his article.

[12]Lord Phillips recorded that in all about 200 people had access to all the material on the general records held on PACIS. Any person who had access to this material could print it out from any terminal at the hospital without leaving an audit trail indicating that this had been done or by whom. The leak to the Mirror had led to recommendations to tighten the procedures to limit information and to introduce an audit trail. But in order to put in place a robust security system, the evidence was that it was necessary to know how the leak to the newspaper had occurred. No system could guarantee that someone with access to information would not make it public improperly. An internal investigation had tried to find out how the leak had occurred and who was responsible. This was unsuccessful. The investigation was not said to have been inadequate. Compliance with the order made by Rougier J was the only way in which the identity of the source was likely to be discovered.

[13]Lord Phillips then considered the reasons which had compelled Rougier J to the conclusion that the leak had the effect of creating a highly detrimental impact on the security of the hospital, the treatment of its patients and the morale of the staff. Counsel for MGN challenged each of these reasons. Lord Phillips considered each of these challenges. He concluded that the judge’s evaluation of the likelihood of further disclosures of patient information from within the hospital was correct. There was evidence that, although the Mirror publication was the first occasion when there had been a leak of hospital notes, the general view within the hospital was that there had probably been leaks by hospital staff to the media in the form of stories. This picture tallied with evidence given by Mr Jones that the intermediary had a number of sources within the hospital, who had been suppliers of accurate information in the past. Lord Phillips concluded that the evidence suggested that the disclosure of hospital records represented an escalation in a series of disclosures from the hospital and raised a real danger that, if the source was not identified, further disclosures of confidential records might occur.

[14]Lord Phillips then considered the jurisdiction of the court to order a person who gets mixed up in the wrongdoing of others so as to facilitate it to help the person who has been wronged by giving full information and disclosing the identity of the wrongdoers. The jurisdiction derives from Norwich Pharmacal Co v. Customs and Excise Commissioners

[1974] AC 133

. The hospital relied on this jurisdiction. MGN’s case was that the information transferred was not confidential in nature and involved no wrongdoing; if the information was confidential, it ceased to be confidential when Brady published it; if the information was confidential, the confidence was Brady’s, not the hospital’s, and the hospital had no standing to take proceedings to enforce it; and the Norwich Pharmacal jurisdiction applied only to tortious conduct, and the breach of confidence alleged was not tortious.

[15]Lord Phillips was in no doubt that the information disclosed was confidential. It was important that the relevant information was the whole of the PACIS print out that was transmitted to Mr Jones, not merely those passages that he chose to reproduce in his article. Having regard to the overall nature of the material as described in the hospital’s evidence, it was clear that it was confidential. The question whether the information disclosed had been published by Brady was linked with the question whether any confidence in the information attached to Brady alone or whether it also attached to the hospital. The published extracts consisted of observations of Brady by different members of the hospital staff that were recorded as part of his medical records. Although they were personal to Brady, the hospital had a clear independent interest in retaining their confidentiality. The publicity generated by Brady himself in the period before the publication of the Mirror article did not have the effect of stripping the cloak of confidentiality from the more detailed records about Brady on the PACIS database. The hospital was entitled to insist that those records remained confidential.

[16]Lord Phillips could see no basis in principle for confining the Norwich Pharmical jurisdiction to cases involving tort. On the contrary the principle should be one of general application. Under it jurisdiction to order disclosure of the identity of wrongdoers should exist in equity wherever the person against whom disclosure is sought has got mixed up in wrongful conduct that infringes a claimant’s legal rights. Lord Phillips then said at paragraph 63 of his judgment:

“In the present case the source abstracted information from the PACIS data base which he or she transmitted to the intermediary in breach of confidence and in breach of contract. The intermediary, knowing that the information had been obtained in breach of confidence, passed it to MGN, through Mr Jones. MGN knowing that the information had been transferred in breach of confidence, published extracts from it. In these circumstances claims for breach of confidence lie against MGN, the intermediary and the source. … as against the source the claim can be brought in contract, as against all three it lies in equity.”

[17]In summary, Lord Phillips found that the jurisdiction of the court was properly invoked in this case because the Norwich Pharmacal principle is not restricted to cases involving tort. If it were so restricted, the restriction does not apply where the defendant is not merely innocently mixed up in the wrongdoing but is a party to it.

[18]Lord Phillips then considered the application to the case of section 10 of the Contempt of Court Act 1981 and

Article 10 of the European Convention on Human Rights

[19]Section 10 of the 1981 Act provides under the heading “Sources of Information”:

“No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the sources 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.”

[20]

Article 10 of the European Convention

provides:

“(1) Everyone 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 interests 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 reputational rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[21]The Human Rights Act 1998 had come into force after Rougier J gave judgment in the MGN case. Lord Phillips considered that sections 2 and 3 of that Act should not in practice result in the court applying a different approach from that which fell to be applied by Rougier J. The courts had frequently stated that in the field of freedom of speech there is no difference in principle between English law and

Article 10 of the Convention

. It seemed to him that the approach to the interpretation of section 10 should, in so far as possible, equate those specific purposes for which disclosure of sources is permitted under section 10 with “legitimate aims” under Article 10; and apply the same test of necessity to that applied by the European Court when considering Article 10. Lord Phillips noted a difference of judicial opinion as to the width of the expression “in the interests of justice” in section 10 between Lord Diplock in Secretary of State for Defence v. Guardian Newspapers Limited

[1985] AC 339

at 350 and Lord Bridge of Harwich in X Limited v. Morgan-Grampian (Publishers) Limited

[1991] 1 AC 1

at 43. He noted that in Goodwin v. United Kingdom

(1996) 22 EHRR 123

at 140 the European Court recorded that Lord Diplock’s interpretation had been replaced by that of Lord Bridge without adverse comment. Lord Phillips considered that Lord Bridge’s wider interpretation accorded more happily with the scheme of Article 10. Thus “interests of justice” in section 10 means interests that are justiciable, all of which are likely to fall within one or more of the catalogue of legitimate aims in Article 10. The hospital could thus argue that its claim for identification of the source was in the interests of the protection of health, the protection of rights of others and preventing the disclosure of information received in confidence.

[22]Lord Phillips then considered what restrictions might be “necessary” within Article 10(2). This embraced interference corresponding to a pressing social need and that which was proportionate to a legitimate aim. He cited a passage from the opinion of Lord Bridge in X Limited v. Morgan-Grampain at page 44, and quoted the important statement of principle in the judgment of the European Court in Goodwin at page 143 paragraph 39:

“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. 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 cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”

[23]It seemed to Lord Phillips that the approach of the European Court to the question of whether disclosure of a source is “necessary” involved a single exercise in which the court considers not merely whether, on the facts of the particular case, disclosure of the source is necessary to achieve the legitimate aim but, more significantly, whether the achievement of the legitimate aim on the facts of the instant case is so important that it overrides the public interest in protecting journalistic sources in order to ensure free communication of information to and through the press.

[24]Lord Phillips considered that the interests of justice were engaged in the MGN case and that the hospital had made out a case that disclosure was necessary to achieve the relevant ends of justice. He said that unless and until the source was identified and dismissed there must be “a significant risk that his or her venality will lead to the sale of further confidential information.” The court then had to weigh, as a matter of discretion, the specific interests of the hospital against the public interest in the protection of journalists’ confidential sources. He concluded that:

“The disclosure of confidential medical records to the press is misconduct which is not merely of concern to the individual establishment in which it occurs. It is an attack on an area of confidentiality which should be safeguarded in any democratic society. The protection of patient information is of vital concern to the National Health Service and, I suspect, to health services throughout Europe. This is an exceptional case. If the order made by Rougier J discourages press sources from disclosing similar information in the future, this will be no bad thing.”

[25]Laws LJ was entirely satisfied, for the reasons given by Lord Phillips, that the need to protect press sources must exceptionally give way to the need for the source to be identified. His short judgment includes this passage of principle:

“It is in my judgment of the first importance to recognise that the potential vice – the “chilling effect” – of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer’s confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a “chilling effect” in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facia … contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way. That debate will arise under section 10 of the municipal legislation; it will arise more broadly by reference to Article 10 of the Convention, and in the light of the Strasbourg jurisprudence on Article 10.”

[26]MGN appealed to the House of Lords. The House of Lords dismissed the appeal. The appeal was on limited grounds. The grounds relevant to the appeal in the present case were that: a) the hospital had failed to establish that the unpublished material in Brady’s “running records” was truly confidential in the sense that it was secret and not in the public domain; b) as all the published information had been placed in the public domain by Brady himself, MGN was not a tortfeasor in publishing the extracts from the running records; c) applying the Article 10 jurisprudence to the proper construction of section 10 and to the facts of the case, the authority had not established convincingly that an order for discovery was proportionate to a legitimate aim within Article 10(2) and strictly necessary in a democratic society.

[27]Lord Woolf gave the principal judgment. As to the first two of the relevant issues, he pointed out that, for the purpose of the Norwich Pharmacal jurisdiction, the wrongdoing which is required is the wrongdoing of the person whose identity the claimant is seeking to establish and not that of the person against whom the proceedings are brought. Any member of the hospital staff would be acting in breach of their contracts of employment if they were responsible for transmitting the contents of a file to the intermediary. They would undoubtedly be wrongdoers. Lord Woolf agreed with Lord Phillips in the Court of Appeal that, although Brady’s conduct in publishing similar information could well mean that he would not be able to complain about the publication, this did not destroy the hospital’s independent interest in retaining the confidentiality of the medical records contained in their files. So the source who abstracted the information from the database not only acted in breach of confidence, he or she also acted in breach of contract. Lord Phillips was almost certainly correct in coming to the conclusion that claims for breach of confidence lay against MGN, the intermediary and the source. But such a finding in favour of the hospital was not necessary. It was sufficient that the source was a wrongdoer and MGN became involved in the wrongdoing which was incontestably the position. Whether the source’s wrongdoing was tortious or in breach of contract did not matter.

[28]In considering the issue relating to section 10 and Article 10, Lord Woolf quoted the same passage from the judgment of the European Court of Human Rights in Goodwin at paragraph 39 as Lord Phillips had quoted. Lord Woolf said that the same approach could be applied equally to section 10 now that Article 10 is part of our domestic law. He referred to the opinion of Lord Bridge of Harwich in X Limited v. Morgan-Grampian at page 43-44, which ended with the words:

“In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached.”

[29]Lord Woolf considered the Norwich Pharmacal jurisdiction at some length, concluding that it is an exceptional one which is only exercised when the court is satisfied that it is necessary that it should be exercised. He considered the order for disclosure made in the case, measuring it against the principles to which he had referred. He considered the evidence of Brady’s responsible Medical Officer. In the light of that evidence, he concluded; “Medical records will always be confidential but this is particularly important in the case of the class of patients that the Authority is responsible for caring for at Ashworth.”

[30]He found confirmation for this in the judgment of the European Court in Z v. Finland

(1997) 25 EHRR 371

at 405-406. At paragraph 95 of that judgment, the court had said:

“… the court will take into account the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the contracting parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community. The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention.”

[31]Lord Woolf acknowledged that this was in a different context from that before the court and it was not necessary for the court in that case to balance the conflicting interests which were at play, as was essential in the MGN case. However, the court’s judgment provided a useful guide as to the significance of the wrongdoing which occurred.

Lord Woolf concluded his judgment as follows:

“The situation here is exceptional, as it was in Financial Times Limited v. Interbrew SA [2002] EWCA Civ 274 and as it has to be, if disclosure of sources is to be justified. The care of patients at Ashworth is fraught with difficulty and danger. The disclosure of the patients’ records increases that difficulty and danger and to deter the same or similar wrongdoing in the future it was essential that the source should be identified and punished. That was what made the orders to disclose necessary and proportionate and justified. The fact that Ian Brady had himself disclosed his medical history did not detract from the need to prevent staff from revealing medical records of patients. Ian Brady’s conduct did not damage the integrity of Ashworth’s patients’ records. The source’s disclosure was wholly inconsistent with the security of the records and the disclosure was made worse because it was purchased by a cash payment.”

[33]Lord Slynn of Hadley and Lord Hobhouse of Woodborough gave short concurring judgments. Lord Browne-Wilkinson and Lord Nolan agreed with Lord Woolf and Lord Hobhouse.

[34]The evidence in the MGN case was that the Mirror had paid the intermediary £1,500. It was assumed that the source within the hospital had received payment. It was also assumed that disclosure of the identity of the intermediary would result in disclosure of the identity of the source.

The present proceedings

[35]The Mirror duly disclosed Mr Ackroyd as the intermediary from whom Mr Jones had received the clinical notes. He has declined to identify his source. Hence the present proceedings in which the hospital seek an order requiring him to do so. The hospital applied for summary judgment. Their case is that Mr Ackroyd’s position is indistinguishable from that of the Mirror in the MGN case and that the decision of the House of Lords concludes the matter.

[36]Mr Ackroyd’s case is that the facts relevant to an application for an order for disclosure against him are materially different from those advanced by the Mirror in the MGN case. For the purposes of the summary judgment application, he made a witness statement. He is a freelance investigative journalist who has been writing articles for national and regional newspapers for more than sixteen years. He has specialised in areas of crime, policing and punishment, including the treatment of serious offenders in prisons and high security hospitals. He confirms that he was the intermediary from whom Gary Jones received copies of the PACIS clinical notes. He was not asked to give evidence in the MGN case. Paragraph 26 of his witness statement is as follows:

“In November 1999, I was approached by sources at Ashworth and was provided with information covering Mr Brady’s first month on hunger strike in October 1999. The purpose of my sources in providing me with information including the PACIS notes was to enable the public disclosure of the way in which Mr Brady had been treated, which, consistent with the findings of the Fallon Report in other matters, had not been disclosed by Ashworth. I promised that I would not reveal the identity of my sources.”

[37]Mr Ackroyd maintains that the PACIS notes are not the same as medical records. Those in Brady’s case were accessible by at least 200 staff throughout the hospital, many without any clinical background or indeed any direct responsibility for Brady. After he received the information and the PACIS notes, he wrote a draft article which he sent to Gary Jones. Subsequently he sent the PACIS notes by fax to Mr Jones. He himself received £1,250 as payment from the Mirror, not £1,500 as reported in the MGN proceedings. Contrary to the assumption in those proceedings, the sources from whom he obtained the PACIS notes and associated information were not motivated by monetary gain. He made no payment to them, nor to his knowledge did anyone else. They were, he says, acting in the public interest.

[38]The Fallon Report is a main subject of the first 23 paragraphs of Mr Ackroyd’s witness statement. He gives an account of his participation in events concerning the hospital between 1997 and 1999. A man called Stephen Daggett, who was a patient at the hospital, absconded and produced a dossier entitled “My Concerns”. This contained very serious allegations relating to activities at the hospital and to its management. This resulted in the Fallon Inquiry chaired by His Honour Peter Fallon QC, a then recently retired senior circuit judge. The Fallon Inquiry reported in January 1999. We have been provided with a copy of the Report. It runs to 474 pages. The flavour of its conclusions can be gleaned from His Honour Peter Fallon’s covering letter to the Secretary of State for Health:

“We found Mr Daggett’s description of the environment on Lawrence Ward to be largely accurate. Pornography was widely available on the ward; patients were running their own businesses; hospital policies were ignored; and security was grossly inadequate. The child at the centre of the paedophile allegations was, in our view, being groomed for paedophile purposes. She was permitted, often unsupervised, to associate with men with appalling criminal records. That this was allowed to happen is disgraceful in what was supposed to be a hospital, and a high security hospital at that. Perhaps worst of all, the clinical staff did nothing about it, and some of them even judged it to be in the interests of the patient. … The management culture of the Hospital was dysfunctional. Senior managers were secretive, out of touch and totally unable to control this large institution. Four critical internal reports were suppressed. Ministers were mislead on two occasions about events at Ashworth. We have no confidence in the ability of Ashworth Hospital to flourish under any management. It should close.”

[39]Paragraph 3.4.1 of the executive summary of the Fallon Report is as follows:

“We have outlined the allegations made by Mr Daggett above. By far the most serious is the possible abuse of a young girl, “child A”, who was allowed to visit patients on Lawrence Ward without supervision over a number of years. We thought it important to bring to public attention the nature of the crimes committed by Mr Hemming and Mr Corrigan, the two men “child A” visited. Mr Hemming had a very substantial history of paedophile activity with young girls, including indecent assault and attempted rape. On at least two occasions he enticed children into a secluded spot by impersonating a Police Officer. Mr Corrigan had a history of abduction and buggery of young boys. The offence that led him to be confined to Ashworth was the kidnapping, torture, sexual assault, mutilation and eventual murder of a 13 year old boy.”

[40]Mr Ackroyd gives an account of his involvement in these and related matters. He wrote articles during the period of which the hospital, through its solicitors, complained. He had contact with a member of parliament whom he encouraged to send Mr Daggett’s dossier to the Home Office. He had contact with ministers in relation to the Fallon Inquiry.

[41]Ian Brady was not a subject of the Fallon Inquiry, but Lawrence Ward was the ward to which he was moved on 30th September 1999. Mr Ackroyd was concerned with other events at the hospital before September 1999. These included an article in the Sunday Express on 28th June 1998 which recounted a plan by Brady to break out of Ashworth. Mr Ackroyd had obtained computer generated plans and hand written notes in relation to this. He says that he even obtained parts of Brady’s escape kit, and saw evidence that Brady had hoarded more than two hundred prescription pills which he could have used to commit suicide if his escape plot failed. On the day after this article, the hospital issued a statement saying that they had no knowledge of and had not had sight of any alleged escape plans by Ian Brady. Mr Ackroyd was not personally challenged about the contents of his article, which was entirely accurate.

[42]Mr Ackroyd says that his purpose in drawing matters concerning the Fallon Inquiry and other related matters to the court’s attention is threefold. First, he is a committed investigative journalist. His investigations have led him to be thanked by a Minister and some of the material which he published led directly to the instigation of the Fallon Inquiry. Second, he has relied on many confidential journalistic sources to help him expose incompetence at the hospital and to subject the institution to public scrutiny. Third, as set out in the Fallon Report, he says that there has been a history of secrecy and non-disclosure of reports at the hospital, even, as he discovered, after the beginning of the Fallon Inquiry.

[43]These matters for practical purposes did not feature in the MGN case. In the Court of Appeal, Lord Phillips alluded to the “unhappy history” at the hospital in a single sentence saying that it was unnecessary to explore it. I was a member of the court in that appeal. I do not now recall any evidence in that case relating, for instance, to the Fallon Inquiry. If there was any, it has not been drawn to the attention of this court in the present appeal.

[44]Mr Ackroyd states that over the years he has had a number of sources from within the hospital. There was more than one source of information relating to what happened to Ian Brady on 30th September 1999 and during the following month. There was more than one source of the material which found its way into the Mirror article of 2nd December 1999. In the present proceedings, the hospital seeks an order for disclosure only of the source of the PACIS clinical notes.

[45]Mr Ackroyd says this in relation to Ian Brady during that month:

“What Mr Brady was subjected to during his move and at the start of his force feeding was excessive and incompetent. It represented very serious failings on the part of those responsible, even by the standards of Ashworth as described so graphically in the Fallon Report. I obtained the PACIS notes because of the exceptional circumstances surrounding Mr Brady’s move. However evil Mr Brady is, Ashworth is responsible for his proper treatment. It is grotesque for a manager to stand behind a patient who is being force-fed, while making gagging noises to mock him. This was a “one off”

. I cannot imagine a source disclosing PACIS notes in any other situation. The Fallon Report conclusively proved a catalogue of suppression of information on the part of Ashworth. My sources were motivated not by financial gain but by the desire for the public to be aware of a balanced version of the treatment of Ian Brady. The Fallon Inquiry came about as a direct result of disclosures made by patients and other sources at Ashworth. The Fallon Report recommended the closure of Ashworth. Without the disclosure of information by journalistic sources, the Fallon Inquiry may never have been launched and minuted and the Department of Health and the public may never have known about the matters over which the management of Ashworth were so severely criticised.”

[46]As I have said, the judge in the present case was hearing an application for summary judgment. The claimants contended that the positions of Mr Ackroyd in the present case and that of the Mirror in the MGN case were effectively indistinguishable. The propositions of law to be derived from the MGN case applied equally in the context of the present litigation. There was no material distinction of fact between the two cases. Mr Ackroyd’s case was that he was not a party to the MGN case and is not bound by the facts found by Rougier J or by the agreed facts on which the decision of the House of Lords was based. One important assumption of fact in that case was wrong. The source in the hospital of the PACIS records was not paid and was not guilty of the venality which both the Court of Appeal and the House of Lords assumed. Mr Ackroyd has defences to the claim which are at least arguable. He contends that the original source of the information had a public interest justification for disclosing information about Brady and his treatment. Irrespective of the decision in the MGN case, it is at least arguable that, in the light of the evidence which Mr Ackroyd would adduce at trial, there is no reason to override the protection for journalists’ sources to be derived from section 10 of the Contempt of Court Act 1981 and

Article 10 of the European Convention on Human Rights

[47]Gray J in the present case correctly observed that the propositions of law in the judgments of the Court of Appeal and the House of Lords in the MGN case were binding on him. He noted, but did not accede to, a submission by Mr Nelson QC on behalf of the hospital that it would be an abuse of process for Mr Ackroyd to seek to relitigate issues already decided against him in the earlier case. He considered the correct approach to be to consider whether it could be shown either that the facts found or assumed in the MGN case were materially incorrect or whether there were any arguable issues which Mr Ackroyd could raise in the present proceedings which were not raised by MGN.

[48]One possibility was that the source at Ashworth was mistakenly assumed to have been paid. It seemed to the judge to be implicit in the words used by Lord Woolf in paragraph 66 of his opinion that the disclosure made by the original source was bad enough to warrant an order for disclosure even if payment had not been made. He accepted that the fact of payment was a factor which might tilt the balance in favour of disclosure of the identity of a journalistic source. In the present case, where an employee at a special hospital had passed on the medical records of a patient to a journalist, the absence of payment came nowhere near tilting the balance the other way.

[49]As to the unhappy history at Ashworth including matters relating to the Fallon Inquiry, these had not been explored in the MGN case. The judge said that he could deal with that quite shortly. Lord Phillips had regarded it as unnecessary to explore further the unhappy history at Ashworth. It was clearly his view that the antecedent history had no bearing on the deleterious consequences of the disclosure of Brady’s medical records. Nothing was said in the House of Lords to cast doubt on this view. The reference by Lord Phillips to an escalation in a series of disclosures from Ashworth suggested that the earlier problems there will have aggravated, rather than diminished, the damage done by leaking Brady’s medical records.

[50]The judge then considered a submission that the source of the PACIS records within the hospital may have had a public interest defence to a claim by the hospital for breach of contract or confidence. The relevance of this would be that, if there were such a defence, the source might not be a wrongdoer with whose activities Mr Ackroyd became mixed up for the purposes of the Norwich Pharmacal jurisdiction. The judge accepted that no such argument had been advanced in the MGN case. For the purpose of this submission, the motive of the source was not relevant. The source’s purpose was however relevant and the court had to form the best view it could by reference to the contents of the leaked documents. I note parenthetically that Mr Ackroyd had shortly stated his understanding of the source’s purpose in paragraph 26 of his witness statement. The judge considered it to be important to have in mind both the contents of the Mirror article and the nature of the relief sought in the present case. The article had extracts from Brady’s medical notes taken from the PACIS database. There was then a separate section which described how Brady was force-fed through a nasogastric tube. The material in Mr Ackroyd’s witness statement indicated that information about the force feeding did not come from the PACIS notes and did not form part of Brady’s medical records. This was significant because the hospital was only concerned to identify the source of the medical records. The judge concluded from this that there was no real prospect of establishing that the purpose of the original source was such as to justify the disclosure of the records in the public interest. As the newspaper itself had argued in the MGN case, the content of the records was essentially trivial. There was nothing in them to warrant the conclusion that their disclosure to the media was in the public interest. Much of the information about Brady was already public. Even if it could be said that publication of facts about Brady’s force feeding was in the public interest, that public interest was collateral in the sense that it was not related to the contents of his medical records which were the subject of the present application. It was a fair inference that the source of the description of the force feeding was not the same person as the source of the medical records. The judge therefore concluded that Mr Ackroyd did not have an arguable defence to the present claim based on the existence of a public interest defence available to the original source.

[51]The judge then considered the submission that, even if there was no arguable case that the original source was justified on grounds of public interest in disclosing the medical records, nevertheless the facts contained in Mr Ackroyd’s witness statement have to be weighed in the balancing exercise required to be carried out under section 10 of the Contempt of Court Act and

Article 10 of the European Convention on Human Rights

. The judge noted what Lord Woolf had said in the MGN case about the confidentiality of medical records. He accepted that it would be wrong to approach the present application on the footing that the original source must be identified simply because the case came within a class concerning medical records. Mr Ackroyd, being himself a journalist, was entitled to the protection afforded by section 10. The court had to undertake a balancing exercise with particular reference to what was said in Goodwin. The court at every level in the MGN case had undertaken that balancing exercise concluding at each level that the balance should be struck in favour of ordering disclosure of the source. Although Mr Ackroyd was not a party to that case, it was strikingly similar with the present case. The original source, Mr Ackroyd and MGN had a common purpose, namely to divulge extracts from Brady’s medical records. The reasons given in the MGN case for rejecting the contention of the newspaper that the principal Norwich Pharmacal was inapplicable applied with equal force to Mr Ackroyd. The judge did not consider it to be arguable that the original source was justified in the public interest in disclosing the medical records. Nor did he consider that it was arguable that the balance to be struck under section 10 and Article 10 would result in the judge at the trial in the present action declining to order Mr Ackroyd to identify his source. If Mr Ackroyd were to succeed in keeping his source anonymous, the express purpose of the order made in the MGN case would be subverted.

Grounds of appeal and submissions

[52]The grounds of appeal contend that the judge was wrong to find that Mr Ackroyd had no real prospect of successfully resisting the claim that he should be ordered to disclose his source of the clinical notes. This is supported by ten particular paragraphs. These may be condensed into three essentials. First, it is properly arguable that Mr Ackroyd’s source would have a public interest defence to a claim by the hospital for breach of confidence or contract in disclosing the notes. If it were a good defence to that claim, a necessary ingredient of the Norwich Pharmical jurisdiction in the present claim would be lacking, since there would be no “wrongdoer” for Mr Ackroyd to be mixed up with. Likewise, Mr Ackroyd would not himself be in breach of confidence for the purpose of that jurisdiction. Second, the judge was wrong to brush aside the fact that Mr Ackroyd’s source received no payment. The Court of Appeal and the House of Lords in the MGN case had assumed venality. This on the facts of the present case was wrong. It should have made a significant difference. Third, the judge failed to carry out properly the balancing exercise required under section 10 and Article 10 and too readily supposed that the outcome of the exercise in the MGN case should also apply to Mr Ackroyd’s case. On the contrary, his position and the public interest relating to it are materially different from that of the Mirror in the MGN case. He is himself a journalist entitled to the protection of section 10. His personal involvement with the hospital over the years, including his successful investigations to make public a history of serious mismanagement at the hospital, provide a significantly different focus for the balancing exercise. Lord Phillips may have regarded it as unnecessary to explore the unhappy history at the hospital for the purpose of MGN’s defence. But the judge was wrong to conclude that it had no bearing on Mr Ackroyd’s defence which was personal to him and substantially different. The detention and treatment of Ian Brady is a matter of public interest in its own right. But for Mr Ackroyd the mishandling of his move to Lawrence Ward, his subsequent hunger strike and the hospital’s forcible feeding of him were further matters of public interest in his continued publication of the hospital’s mismanagement. This was a hospital which the Fallon Report had said should close. The Mirror article of 2nd December 1999 derived from disclosures to Mr Ackroyd from a number of sources. The hospital did not seek disclosure of sources other than that which disclosed the clinical notes. The public interest should be judged by reference to the sources as a whole and their purpose and should not look only at the source of the clinical notes. The purpose of the sources providing him information, including the clinical notes, was to enable the public disclosure of the way in which Brady had been treated and, as it might be thought, mistreated. If it were necessary to concentrate on the disclosure of the clinical notes alone, the purpose could be seen as corroborating what Brady himself had made public, where Brady’s word alone might not be regarded as credible.

[53]As to the relevance and effect of the decisions in the MGN case, Mr Millar QC on behalf of Mr Ackroyd accepts that the decisions of law in the House of Lords and Court of Appeal are necessarily binding. However, there are sufficient relevant distinctions between the cases to provide Mr Ackroyd with a real prospect of defending the claim and to entitle him to a trial. Mr Ackroyd was not a party to the MGN case and is not bound by its factual findings. An arguable public interest defence by the source was not argued. Mr Ackroyd’s evidence puts the history of the hospital centrally in issue. There has been a long-standing and legitimate public interest in and concern about the internal workings of the hospital. Mr Ackroyd was instrumental in exposing those workings to public scrutiny over a number of years despite opposition from the hospital management. His role and that of other journalists has been more than vindicated in the past, but has depended heavily on information from sources within the hospital. His is a clear case of a journalist whose freedom of expression would be inhibited if he was required to disclose the identity of his sources. None of these considerations particular to Mr Ackroyd was before any of the courts in the MGN case. Mr Millar submits that the judge took a wrong view of the purpose of the source in disclosing the clinical notes. Mr Ackroyd’s own evidence about this should not be dismissed for the purposes of a summary judgment application in the absence of any evidence to the contrary. Since the sources were not paid, they were risking their jobs for no financial gain. It is unlikely that they acted out of concern for Brady personally. Their purpose must therefore have been out of genuine concern to make public the information which found its way into the Mirror article.

[54]As to an arguable public interest defence available to Mr Ackroyd’s source, Mr Millar refers to the summary of the law in the judgment of Robert Walker LJ in London Regional Transport v. Mayor of London

[2001] EWCA CIV 1491

; [2003] EMLR 4 page 88. In paragraphs 30-39, Robert Walker LJ considers the authorities and summarises the law. A claim for breach of confidence, including a claim for breach of a contract requiring confidentiality, may in law be defended if the public interest in disclosure outweighs the right of the plaintiff to protect his confidence. The public interest includes, but is not limited to, the disclosure of iniquity. There has to be a balancing exercise depending on the individual facts. A duty of confidence depends on broad principles of equity. It is concerned with whether the confidant’s conscience would or should be troubled by disclosure. A factual enquiry into the purpose of Mr Ackroyd’s sources in passing information to him about the treatment of Ian Brady is necessary before it could properly be determined that the sources were indeed in breach of confidence or contract. Mr Millar would accept, I think, that any public interest defence in this area must be confined within strict limits and that the fact that some disclosure may be required does not mean that disclosure to the whole world should be permitted. Nevertheless, the history of mismanagement at the hospital was such that a public interest defence against disclosure to an investigative journalist with a longstanding involvement with Ashworth has a real prospect of success. Mr Ackroyd would himself have an equivalent public interest defence to any claim that he was in breach of confidence in passing the information to the Mirror.

[55]There is no appellate authority on the question whether a defendant can resist a Norwich Pharmical disclosure claim by establishing that a source alleged to be a wrongdoer would have a public interest defence to a claim for breach of confidence. Mr Millar submits that this must be an arguable defence. The Norwich Pharmical jurisdiction requires a wrongdoer. A person who has a defence in law cannot be so categorised. More generally, the jurisdiction is an exceptional one only to be exercised when the court is satisfied that it is necessary that it should (see Lord Woolf in the MGN case at paragraph 57).

[56]Mr Millar’s second main submission is that the Norwich Pharmical remedy is discretionary in the domestic jurisdiction and overlain in the present case by the protection of journalistic sources afforded by section 10 and Article 10.

[57]Mr Millar submits that the judge was wrong to hold that Mr Ackroyd has no real prospect of successfully defending the claim on either of these grounds. On the contrary, he should be entitled to have the facts relevant to his public interest case considered at a full trial so that their application to these defences in law may be fully considered. The decisions in the MGN case do not preclude this. The case did not determine his position, as distinct from MGN’s position, under section 10 and Article 10. His position is substantially different. In addition, a number of important findings of fact made in the MGN case were wrong. The sources were not paid. The finding of Rougier J that leaks such as those in question had the effect of creating a highly detrimental impact on the security of the hospital, the treatment of its patients, and the morale of the staff was an over-simplification open to challenge in the present proceedings. In the MGN trial, the hospital’s witnesses were able to assert this without challenge. Mr Ackroyd would seek to challenge this on the basis that leaks from the hospital have been a symptom of discontent with its mismanagement and secrecy and have in the longer term been to the advantage of the patients and staff because they have helped to open up Ashworth’s management practices to outside scrutiny. His case also has to be considered at a significantly later date when any social need for disclosure may be seen as less pressing. Mr Ackroyd has not been responsible for delay.

[58]Mr Nelson QC on behalf of the respondents submits that Mr Ackroyd raises no new facts or material sufficient to distinguish his defence from that raised by MGN. He submits that Mr Ackroyd’s public interest defence is opaque. Public interest is not, he submits, a defence to a Norwich Pharmical claim unless the information said to be of public interest discloses misconduct. In undertaking the balancing exercise, the court focuses on the content of the particular information disclosed. In the present case, the medical records disclosed by the source do not show wrongdoing or mismanagement and do not therefore give rise to a public interest defence capable of being one of the factors in deciding whether the public interest in the protection of the confidentiality of journalistic sources ought to be overridden.

[59]Mr Nelson submits that the public interest in the alleged mismanagement of Brady’s transfer to Lawrence Ward and his subsequent hunger strike was relied on in the MGN case by reference to section 10 and Article 10. This was the only arguably viable public interest defence. Facts about past inquiries and problems at the hospital were not relevant. There was and is no proper argument that, because the hospital has had a troubled history, its staff are absolved from their usual duties of confidentiality in particular in relation to medical records. All the facts relating to this aspect of public interest were before the courts in the MGN litigation. They appeared for instance in the judgment of Maurice Kay J of 10th March 2000 in Brady’s judicial review application. The court at all levels held that there was evidence which showed that disclosure of the source within Ashworth was necessary and proportionate in order to protect the confidentiality of medical records.

[60]Mr Nelson submits that, before the clinical notes were disclosed, Brady had published full details of the events on and after 30th September 1999. Ashworth had not then put forward any version, let alone an unbalanced version, of the events. There was no legitimate public interest in disclosing confidential clinical notes which revealed nothing relevant to any alleged mismanagement or cover up and which dealt with matters which in substance Brady himself had already published. As to the section 10 and Article 10 balancing exercise, the Court of Appeal and the House of Lords held that the public interest in unmasking the source who disclosed these medical records outweighed the public interest in protecting journalists’ sources. Mr Ackroyd’s and MGN’s interest here are identical. Mr Nelson submits that there is (or should be) no separate public interest defence to a Norwich Pharmical claim which is different from the public interest in protecting journalists’ sources as an element of the section 10 and Article 10 balancing exercise. Even if in any case there is a public interest in disclosure, it does not follow that the public interest requires disclosure to the media or to the public through the media (see Attorney General v. Guardian Newspapers (No. 2)

[1991] AC 109

at 282). In short, Mr Nelson submits that the judgments of the Court of Appeal and House of Lords in the MGN case demonstrate that the factors in favour of disclosing the ultimate source were overwhelming and that a more detailed consideration of the background history of the hospital would not have produced a different result. He points to the examination by Lord Phillips in paragraphs 27-37 of his judgment in the Court of Appeal of the factors which had led Rougier J to the conclusion that the source ought to be identified. These factors were challenged unsuccessfully by leading counsel for MGN and weighed heavily in the balance for disclosure together with the fact that medical records intrinsically attracted a high degree of confidentiality. This approach was followed in the House of Lords, where Lord Woolf also emphasised that medical records will always be confidential, especially those of patients in a hospital such as this. There is no reasonable prospect of Mr Ackroyd achieving a different result by relying on the history of the hospital and his involvement with it. As to the assumption in the MGN case that the source received payment, this did not tip the balance in favour of disclosure. Venality only exacerbated what was already plainly wrong. Lord Phillips dealt with this at paragraph 93 of his judgment in the Court of Appeal, and as Lord Woolf said at paragraph 66 of his opinion:

“The source’s disclosure was wholly inconsistent with the security of the records and the disclosure was made worse because it was purchased by a cash payment.”

[61]As to delay, Mr Nelson submits that the hospital cannot properly be criticised for the time that the two proceedings have taken

Discussion and decision

[62]As I have said, there was an issue in the MGN case in the Court of Appeal whether Gary Jones had received the entire clinical notes between 1st and 29th October 1999 or just extracts. Lord Phillips concluded that the overwhelming likelihood was that the source provided the intermediary with a printout of the full notes for the period and that this was faxed on by the intermediary to Mr Jones in its entirety. A full copy of the notes was never produced in the MGN case – only a redacted version containing those passages reproduced in the Mirror article. A copy of the full unredacted notes was produced for the first time, so far as I am aware, during the course of the hearing of the present appeal. It was produced on a confidential basis as to its contents, Mr Ackroyd personally and readily undertaking to observe that confidence. Mr Millar at no time suggested on his behalf that Mr Ackroyd had not historically received the full version.

[63]The disclosure of the full version was, for me at least, revealing. It eliminated any possible suggestion that these are not medical records. They plainly are. They are much more detailed than I personally had previously imagined from the heavily redacted versions. They are very detailed observation notes of Brady and his behaviour in detention. They contain details of or relating to both his physical and psychiatric treatment. They contain details of his hunger strike and, towards the end of October 1999, preparation for and the start of his forcible feeding. They do not, I think, contain material from which it might be properly said that that process was mishandled. In general terms, they bear out Mr Nelson’s submission that the disclosure of these notes was not necessary to unmask mismanagement. Close examination of the notes shows that rather more of the Mirror article (but not all of it) was probably derived from the notes than at first appeared. The notes do confirm that Brady had suffered a suspected and subsequently confirmed fracture of his wrist when he was moved to Lawrence Ward, although this material was not used in the Mirror article.

[64]Accordingly one of Mr Ackroyd’s sources disclosed medical records attracting confidentiality such as Lord Woolf and Lord Phillips described. I do not consider that Mr Ackroyd has any reasonable prospect of successfully arguing otherwise. Mr Millar for practical purposes accepted this, although I had some sympathy with his forensic complaint that the full version of the notes was introduced at a very late stage.

[65]I do not consider that it is necessary for the purposes of the present appeal to reach any conclusion whether Mr Ackroyd might, on the facts which he presents, establish that the source who provided the clinical notes to him might have a public interest defence to a claim by the hospital for breach of confidence or contract. I am prepared to assume without deciding that, if this were established, a Norwich Pharmacal claim would not be established for want of a “wrongdoer”. Apart from such a public interest defence, as Lord Woolf said in paragraphs 32-34 of his opinion in the MGN case, Lord Phillips was almost certainly correct in coming to the conclusion that Mr Ackroyd’s source acted in breach of confidence and in breach of contract. If Mr Nelson is correct that this court’s inquiry should be confined to disclosure of the clinical notes alone, it does seem to me that this public interest defence might be difficult to sustain. However that may be, I do not consider it to be necessary to determine this question summarily for the purposes of this appeal. This is because Mr Ackroyd’s separate public interest defence which depends on section 10 and Article 10 both encompasses the same facts and considerations and is a more promising defence from his point of view. As I think Mr Nelson acknowledges, if Mr Ackroyd were to fail to establish that his source had a public interest defence, it does not automatically follow that the hospital would establish that their public interest in disclosure is sufficient to override Mr Ackroyd’s public interest in maintaining the confidentiality of his source. I turn therefore to consider the section 10 and Article 10 defence.

[66]I have already quoted in paragraph 22 above the statement of principle in the judgment of the European Court of Human Rights in Goodwin at page 143 paragraph 39. 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 cannot be compatible with

Article 10 of the Convention

unless it is justified by an overriding requirement in the public interest. I have also quoted at paragraph 25 above the focal restatement of that principle in the judgment of Laws LJ in the MGN case.

[67]In the present appeal, Mr Millar struggled to identify a particular public interest in the disclosure of Brady’s clinical notes in the context in which they were disclosed and looked at alone. Brady had himself published details of the alleged mishandling of his move to Lawrence Ward and its consequences. There is little or nothing in the clinical notes which appears to give rise to legitimate criticism of the hospital. Mr Millar’s submission, relying on paragraph 55 of the decision of the European Court of Human Rights in Fressoz and Roire v. France

[2001] EHRR 2

(2001) 31 EHRR 28

, that the notes provided much needed corroboration of what would otherwise be Brady’s own bald and unconvincing narrative is not in my view strong – this especially since the Mirror article, which Mr Millar told us closely followed what Mr Ackroyd himself wrote, did not use the notes for that purpose. But on this part of the appeal, Mr Ackroyd does not have to rely on an overriding public interest in his source’s disclosure of the clinical notes. Rather the hospital has to establish an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way. As Laws LJ said, the public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication and the particular source. It is in no way lessened and certainly not abrogated, simply because the case is one in which the information actually disclosed is of no legitimate, objective public interest.

[68]It is here that, in my judgment, Mr Ackroyd has a reasonably arguable case for saying that the focus in his case is significantly different from that which the Court of Appeal and the House of Lords considered on the evidence in the MGN case. Those involved in that case may have supposed that disclosure of the identity of the intermediary would lead to disclosure of the ultimate source. But, Gray J’s view that the expressed purpose of the order made in the MGN case would be subverted if Mr Ackroyd were to succeed in keeping his source anonymous is only persuasive if the judgments in that case, to which Mr Ackroyd was not a party, really are to be taken as summarily determinative of his defence also.

[69]The unhappy history at the hospital, which Lord Phillips said it was unnecessary to explore, did not feature prominently in the MGN case. It was not a main focus of MGN’s defence. This was understandable for a national newspaper with diverse interests. Mr Ackroyd’s journalistic focus is both personal and substantially different. He is entitled, in my view, to present different evidential material from a different viewpoint. I do not find persuasive Mr Nelson’s submission that the public interest in preserving the anonymity of Mr Ackroyd’s sources should be summarily circumscribed by the content of what was disclosed by one source. The hospital is, of course, entitled to limit their claim to the identity of the source who disclosed the clinical notes. But that does not in my view necessarily disentitle Mr Ackroyd from enlarging the ambit of this part of his defence to encompass his other source or sources. The social need to preserve the confidentiality of the medical records of the hospital’s patients may be more pressing than the need to preserve the confidentiality of other information about the hospital. But the chilling effect of a requirement to disclose one source may extend to other sources whom the hospital do not seek to have identified. If the hospital’s abstention from seeking disclosure of the identity of all Mr Ackroyd’s sources, both in the present action and historically, implies an acceptance that the protection of journalistic sources would not be overridden in their cases, that could be a factor to go into the balance in the present proceedings. The fact that Mr Ackroyd’s sources received no payment might not alone be sufficient to swing the balance as determined by the Court of Appeal and the House of Lords in the MGN case in his favour. But arguably that difference between the two cases is not the only difference, nor perhaps the most important. In addition, I consider that Mr Ackroyd may be entitled to argue that, in the different circumstances of his case and after the passage of time in the light of the decision of the House of Lords in the MGN case, the need for disclosure of his source to deter other breaches of confidence should be re-examined.

[70]In short, in my judgment Mr Ackroyd establishes a sufficient case to entitle him to a trial, and I consider that Gray J was wrong to decide otherwise. The focus of his defence is significantly different factually from that in MGN’s case to justify the submission, sufficient for present purposes, that the decision in that case should not summarily be regarded as determinative of this. For the purposes of Part 24 of the CPR, I consider that Mr Ackroyd has a real prospect of successfully defending this claim notwithstanding the decisions in the MGN case. If that might be regarded as expressing an unduly rosy view of his prospects of success in what is undoubtedly a difficult defence, I think that he is entitled to point to clause 24.2(b) of the CPR to the effect that there is another compelling reason why this case should be disposed of at a trial. Protection of journalistic sources is one of the basic conditions for press freedom in a democratic society. An order for source disclosure cannot be compatible with

Article 10 of the European Convention

unless it is justified by an overriding requirement in the public interest. Although there is a clear public interest in preserving the confidentiality of medical records, that alone cannot, in my view, be automatically regarded as an overriding requirement without examining the facts of a particular case. It would be an exceptional case indeed if a journalist were ordered to disclose the identity of his source without the facts of his case being fully examined. I do not say that literally every journalist against whom an order for source disclosure is sought should be entitled to a trial. But the nature of the subject matter argues in favour of a trial in most cases. This case, with its background of the MGN case, is most unusual. For the reasons which I have given, I do not consider that the MGN decisions dispose of Mr Ackroyd’s defence at the summary stage. His defence may not perhaps succeed in the end, but I think that he is entitled to a trial.

Conclusion

[71]For these reasons, I would allow this appeal.

[72]I agree that the appeal should be allowed but on a much narrower basis.

[73]The decision of the House of Lords in Ashworth Hospital Authority v MGN Ltd.

[2002] 1WLR 2033

(“MGN”), which has been reviewed in detail in the judgment of May LJ, established two important points of principle. The first was the strong presumption in favour of the protection of journalists’ sources. Lord Woolf (para 66) endorsed the forceful statement to this effect by Laws LJ in the Court of Appeal in the passage referred to by May LJ, including his statement that: “… the true position is that it is always prima facie…contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an over-riding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way.” (

[2001] 1WLR 515

para 101).

[74]Secondly, notwithstanding that strong presumption, it was established that medical records were in a special category which would normally be immune from disclosure. This conclusion may not strictly have been one of law, binding as such. Indeed, Lord Woolf referred specifically to the evidence of the responsible medical officer, Dr Collins, in support of his conclusion that - “Medical records will always be confidential but this is particularly important in the case of the class of patients that the authority is responsible for caring for at Ashworth” (para 63). However, this conclusion was also supported by reference to “the approach of the European Court” to medical records under Article 8, and was clearly intended as a statement of general application. Furthermore, there is nothing in the evidence before us which in any way undermines that approach to medical records in general.

[75]Accordingly in my view, it would be inconsistent with the decision of the House of Lords to approach the present case other than on the basis that, other than in exceptional cases, there is an over-riding public interest in the protection of medical records from disclosure. In the interests of certainty in the law and the assurance of those responsible for such records, I would oppose any watering-down of that principle, even if it were open to us to do so. Of course the prohibition cannot be absolute. There may be circumstances in which a departure from the normal rule is justified by the public interest; but the circumstances must be truly exceptional, and they must be directly relevant to the need for disclosure of the records in question.

[76]Turning to the present case, I agree with May LJ that the public interest case as presented before us has a quite different emphasis than appears to have been presented by in MGN. Furthermore, we must proceed on the basis, contrary to the assumption in MGN,that the disclosure was motivated by considerations of public interest rather than venality. On the other hand, we have had the advantage of seeing the full PACIS records, and also the evidence of Mr Ackroyd as to the significance which he attaches to them in the context of his proposed defence. We therefore are in a position to evaluate both aspects in a way which was not possible or necessary in the previous proceedings.

[77]Again, I agree with May LJ that consideration of the full text of the notes not only confirms their nature as medical records, but also does nothing to support the case that, from the medical point of view, the process was mis-handled in any way. On the contrary, far from indicating any wrongdoing by the medical staff, the notes appear to demonstrate that they handled a very difficult situation competently and conscientiously. At most there is some corroboration of the fact of an injury to Mr Brady’s wrist. However, that fact had been made public by Mr Brady, and was not apparently a matter of dispute. The notes cast no light on the circumstances in which it arose. This aspect of the notes was not considered sufficiently significant to be relied on in the Mirror article nor by Mr Ackroyd in his evidence before us.

[78]In evaluating the public interest in disclosure, at the summary judgment stage, we must take Mr Ackroyd’s evidence at its highest – but no higher. He goes in some detail into the background history of the hospital leading up to the Fallon Report. However regrettable the events outlined by him, and while acknowledging his own important contribution to bringing them to light, they had become public knowledge by the time of the publication of the report in January 1999. They are of no more than background relevance to the period covered by the medical records with which we are concerned.

[79]When one comes to his treatment of that issue, the evidence is surprisingly thin. He tells us that in November 1999 he was approached “by sources at Ashworth”, who provided information covering the first month of Mr Brady’s hunger strike including the PACIS notes. He does not say whether the person who provided the PACIS notes was the same as the person or persons who provided the other information used in the article. Whoever they were, he says that their purpose in providing information was to enable the public disclosure of the way in which Mr Brady had been treated, and was not motivated by the prospect of monetary reward. He gives some details of the background to the hunger strike and explains the genesis and contents of the Mirror article. However, the nub of his public interest case is found in paragraph 36:

“What Mr Brady was subjected to during his move and at the start of his force-feeding was excessive and incompetent. It represents very serious failings on the part of those responsible, even by the standards of Ashworth as described so graphically in the Fallon Report. I obtained the PACIS notes because of the exceptional circumstances surrounding Mr Brady’s move. However evil Mr Brady is, Ashworth is responsible for his proper treatment. It is grotesque for a manager to stand behind a patient who is being force-fed, while making gagging noises to mock him. This was a ‘one-off’. I cannot imagine a source disclosing PACIS notes in any other situation.”

[80]If the PACIS notes contained evidence to support the allegation in the first sentence, one could understand the relevance of their disclosure; but they do not. Similarly, no reasonable person would dispute his comment on the alleged “gagging noises”, if that incident occurred. However, there is no explanation as to what this has to do with the disclosure of the PACIS notes, which contain no reference to that alleged incident.

[81]In response to my request for a summary of the public interest case Mr Millar put the submission in this way:- “The totality of the information disclosed to (the defendant) served to corroborate (Mr Brady’s) grievances. The PACIS notes indicate how disturbed he became after the events of 30.9, the injury to his wrist, his attempts to pursue the grievance through the hospital/solicitor/police, that the hunger strike was genuine and was a protest at the mis-treatment etc. …The rest of the information (see the second page of the Mirror article) clearly included an unfavourable account of the re-feeding which was at odds with ‘official’ version that Professor Sines had accepted.” This had to be seen against the background of the “long-standing general public interest in whether (the Hospital) is mis-managed” and the public’s right to know about how those forcibly detained in closed psychiatric institutions are treated.

[82]Again, no-one would dispute the legitimacy or importance of the public interest in both matters. However, if I am right that medical records are in a special category requiring exceptional circumstances to justify disclosure, this summary adds nothing to the evidence to which I have referred. Indeed it implicitly concedes that the “unfavourable account” of the re-feeding depends on evidence other than the PACIS records.

[83]In my view, therefore, the Judge was right to hold that there was no arguable case that the original source was justified on grounds of public interest in disclosing these medical records; and no case for an exception to the normal approach to such records, as established in MGN.

[84]However, in my view this conclusion is not by itself sufficient to entitle the hospital to the order made by the Judge. It is an unfortunate fact that the MGN case proceeded all the way to the House of Lords, on the mistaken assumption that success for the hospital would produce the desired result of identifying the culprit employee. There is no reason to criticise the hospital for that mistaken assumption nor for the delay which resulted from the need to clarify the law. However, we have to take the position as we now find it. Over three years have now passed since the events of which complaint is made. To order disclosure of the sources, we have to be satisfied, as things now stand, that (in the words of Laws LJ) there is “an over-riding public interest, amounting to a pressing social need” to order disclosure.

[85]The House of Lords was so satisfied on the basis of the position as presented to it. Lord Woolf referred to the evidence of the information manager setting out - “… the reasons why it is important that the authority should be able to identify the employee or employees who are responsible for wrongful disclosure. These include preventing further disclosure and removing the cloud of suspicion that at present hangs generally over the authority’s employees who have access to the records which were published.” (para 63) It is far from clear that there is the same “pressing need” today. The vital principle as to the confidentiality of medical records has been established unequivocally by the House of Lords’ decision, and employees who breach that principle in the future can be in no doubt of the risks that they incur. However, there is no evidence before us that a “cloud of suspicion” is still blighting activity at the hospital, or that there is today a pressing need to identify the perpetrator of something which happened so long ago, and, as far as we know, has not been repeated. Certainly, I would not regard it as a matter which is so clear that it can be determined on a summary application. Even accepting that there is no public interest defence, there remains an arguable issue whether the discretion of the Court should be exercised in favour of granting an order for disclosure in the present circumstances.

[86]This point was not addressed by the Judge, possibly because it was not taken directly in the arguments before him. However, it is a point which is made by Mr Millar before us, and as not been objected to by Mr Nelson. His only answer is to say that the hospital itself was not itself responsible for the delay. That may be so, but, as I have said, it does not address the need for the Court to consider the exercise of its discretion in the position as it now arises.

[87]Accordingly, on this limited ground, I would allow the appeal.

[88]I agree with the judgment of May L.J. which I have read in draft. I add a few words in deference to Gray J. whose judgment we are upsetting. There is today, in my view, a palpable tension between the judiciary and elements of the press. If that is right, then it is all the more important, not that judges should pander to perceived pressure from the press, but only that judges should be vigilant to protect the freedom of the press where it is legitimate to do so. Mr Ackroyd presents himself as a serious investigative journalist known to have a special interest in Ashworth Hospital. The way in which the hospital has managed its patients was the subject of a public inquiry and was a matter of public interest. Arguably the manner in which it is presently conducting itself and especially the exposure of any malpractice is still a matter of public interest. In those circumstances to find that a prima facie case for the non-disclosure of a genuine journalist’s source of information is displaced without a full investigation into all the facts leaves me feeling uncomfortable. The nuances of these conflicting interests, an important one of which is, as Carnwath LJ has pointed out, the maintenance of the confidentiality of medical records, will colour and shape a final judgment and these subtleties of importance are only fully established by all evidence tested in our time-honoured way by cross-examination. To cut short this investigation when there are real differences between this case and MGN and find that the journalist has no real prospect of success sends such a chill of apprehension down my spine that I too would allow the appeal, and set the judge’s order aside so that the matter can proceed to trial on the issues joined between the parties.

Order

appeal allowed and order of Gray J of 18.10.02 set aside; claimant to have costs here and below, to be assessed on the standard basis if not agreed, and to have £20,000 on account within 14 days; permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)

Ackroyd v Mersey Care NHS Trust [2003] EWCA Civ 663

Introduction

The Mirror Article

The MGN Litigation

Lord Woolf concluded his judgment as follows:

The present proceedings

Grounds of appeal and submissions

Discussion and decision

Conclusion

Order

Cited in 2 later judgments