Ashworth Hospital Authority v MGN Ltd

A court may order a publisher to identify a confidential source under the Norwich Pharmacal jurisdiction where the publisher became involved in wrongful conduct infringing the claimant’s legal rights. The jurisdiction extends beyond torts and includes breach of confidence.

Disclosure of a journalistic source is always prima facie contrary to the public interest. It requires an overriding public interest amounting to a pressing social need and must be proportionate to the legitimate aim pursued. The protection of confidential medical records may exceptionally satisfy that standard where identification is the only reasonable means of preventing further disclosures.

A hospital’s confidential electronic records concerning a detained patient were supplied by an unidentified employee to an intermediary and then sold to a newspaper publisher. The newspaper published selected extracts. The hospital’s internal investigation could not identify the employee.

Rougier J ordered the publisher to identify the intermediary so that the source could be discovered. The publisher appealed, challenging the court’s jurisdiction and contending that disclosure infringed section 10 of the Contempt of Court Act 1981 and article 10 of the European Convention on Human Rights.

The principal questions were whether the Norwich Pharmacal jurisdiction extended beyond tortious wrongdoing and whether disclosure was justified by an overriding public interest.

1. Appeal dismissed unanimously. The publisher was required to identify the intermediary, subject to the stay recorded in the order.
2. Lord Phillips MR, with whom May LJ and Laws LJ agreed, held that the hospital records were confidential. Their character had to be assessed by reference to the whole database print-out supplied to the newspaper, not merely the relatively limited extracts eventually published. The patient’s own publicity did not remove the confidentiality of the detailed clinical records. The hospital had an independent interest, shared with its patients, in protecting those records.
3. The Norwich Pharmacal equitable jurisdiction is not confined to torts. It applies where the respondent has become mixed up in wrongful conduct which infringes the claimant’s legal rights. The source, intermediary and publisher had participated in breaches of confidence, while the source had also acted in breach of contract. The jurisdiction therefore existed. In any event, a restriction applicable to an innocent facilitator would not extend to a defendant which was itself party to the relevant wrongdoing.
4. Section 10 of the Contempt of Court Act 1981 should, so far as possible, be interpreted consistently with article 10 of the European Convention on Human Rights. The “interests of justice” encompass justiciable interests, including the exercise of important legal rights and protection against serious legal wrongs. The corresponding legitimate aims included protecting health and the rights of others and preventing disclosure of information received in confidence.
5. Necessity required a pressing social need, proportionality and relevant and sufficient reasons. The court had to determine whether identification was necessary to achieve a legitimate aim and whether that aim was sufficiently important to override the public interest in protecting journalistic sources. All other reasonable means of identifying the source had failed.
6. The disclosure of confidential medical records was an attack on confidentiality of vital concern to the health service. There remained a significant risk of further disclosures unless the employee was identified and dismissed. Those exceptional circumstances supplied the overriding public interest required for disclosure.
7. Laws LJ added that protection of journalistic sources remains constant regardless of the merits of the publication or the source. Disclosure is always prima facie contrary to the public interest and is justified only by an overriding public interest amounting to a pressing social need.

1. Court of Appeal: The publisher’s appeal was dismissed unanimously. Leave to appeal to the House of Lords was refused, and the disclosure order was stayed pending determination of any petition.
2. Queen’s Bench Division: Rougier J ordered the publisher to provide information identifying the intermediary through whom the confidential records had been obtained.