John v Express Newspapers

Section 10 of the Contempt of Court Act 1981 requires a two-stage inquiry before a journalist can be ordered to disclose a confidential source. The court must first decide whether disclosure is necessary in the interests of justice or another specified statutory interest. If so, it must then balance the need for disclosure against the public interest in protecting journalistic sources.

Before ordering disclosure, other reasonable avenues for identifying the wrongdoer should be explored. The court must also consider whether disclosure is likely to achieve a useful result. A single breach of legal professional confidentiality, particularly where the risk can be reduced by improved security, will not ordinarily justify overriding source protection without a clearly compelling case.

The defendants published the Express and Sunday Express newspapers. A journalist received a leaked draft of confidential legal advice prepared for Sir Elton John and his solicitors. An injunction restrained publication, but the claimants sought an order requiring the editor and journalist to identify the source.

Morland J held that disclosure was necessary in the interests of justice under section 10 of the Contempt of Court Act 1981, principally because of the threat to legal professional privilege, and ordered disclosure. The defendants appealed. The central issue was whether the statutory necessity for disclosure had been established and, if so, whether disclosure should nevertheless be refused in the court’s discretion.

1. Appeal allowed. The order requiring disclosure of the journalist’s source was set aside, with costs.
2. Section 10 of the Contempt of Court Act 1981 imposes two stages. First, the court must determine whether disclosure is necessary in the interests of justice, national security, or the prevention of disorder or crime. If necessity is established, the court must exercise its discretion by weighing the need for disclosure against the need to protect the source.
3. The expression necessary does not require an abstract verbal formula. Its meaning lies between indispensable and merely useful or expedient. The assessment requires judgment on the established facts and must reflect the competing public interests.
4. Before requiring a journalist to breach the professional obligation to protect a confidential source, other avenues should be explored. It cannot be assumed that investigation will be futile. The court should consider whether an investigation might identify the culprit or narrow the possible suspects, and whether disclosure is likely to produce any compensating benefit.
5. The Court preferred the approach of Lindsay J in Saunders v Punch Ltd to the more limited weight given by Morland J to the failure to investigate within the relevant chambers. The threat created by the use of a discarded draft of legal advice was insufficiently significant to outweigh source protection. The internet publication and the fact that the breach was a single incident did not alter that conclusion.
6. Disclosure had not been shown to be necessary. Even if it had been, the discretion should have been exercised against disclosure because the merits of requiring departure from normal journalistic standards had not been clearly demonstrated.

• Court of Appeal: Allowed the defendants’ appeal from the order of Morland J and set aside the disclosure order. Leave to appeal to the House of Lords was refused.
• Queen’s Bench Division: Morland J ordered the editor and journalist to disclose information identifying the source of the leaked draft advice.