INTERBREW S.A. v. FINANCIAL TIMES LTD. AND OTHERS [2002] EWCA Civ 274

A Norwich Pharmacal order ordinarily supports the assertion of civil rights against an unidentified wrongdoer. It cannot be obtained merely to detect crime, although the position of a genuine prospective private prosecutor remains open.

Where disclosure would identify a journalistic source, Contempt of Court Act 1981 section 10 requires a hard-edged assessment of necessity. Disclosure must meet a pressing social need, be the only practical means of achieving a lawful aim, preserve the essence of press freedom and represent a proportionate response. The source’s purpose may affect that assessment, but motive and the presence or absence of an express promise of confidentiality do not.

Five news organisations received or obtained material derived from a confidential presentation concerning a possible takeover. The document included information said to have been fabricated. Its dissemination caused substantial market activity. Interbrew sought the originals to discover the source and prevent further disclosure.

On an interlocutory application, Lightman J made a Norwich Pharmacal order requiring preservation and delivery up of the documents within 24 hours. He dismissed the accompanying breach of confidence claim against the news organisations. They appealed only against immediate delivery up.

The Court of Appeal considered whether the equitable jurisdiction extended to detecting crime, whether a civil entitlement to delivery up existed, and whether disclosure was barred by section 10 of the Contempt of Court Act 1981 and article 10 of the Convention.

1. Appeal dismissed unanimously. Sedley LJ delivered the judgment, with which Longmore and Ward LJJ agreed. Interbrew had established a right to delivery up because the documents could identify the proper defendant to proceedings for breach of confidence. Each news organisation had participated innocently in disseminating confidential information and was not a mere witness.

2. The Norwich Pharmacal jurisdiction ordinarily exists to assist the assertion of civil rights against an unidentified wrongdoer. It does not provide a general civil procedure for detecting crime. Criminal investigation is generally entrusted to public authorities exercising carefully limited statutory powers. The possible position of an applicant genuinely intending a private prosecution was left open.

3. Only the confidential and genuine parts of the presentation supported the civil entitlement. False information could not itself be confidential. The alleged forgery, market manipulation and other asserted torts did not establish an independent civil basis for disclosure. The court should also be circumspect before treating serious, uncontradicted allegations against an absent source as proved.

4. Section 10 of the Contempt of Court Act 1981 assumes an existing right to disclosure and strongly inhibits its exercise. Read compatibly with article 10, disclosure must answer a pressing social need, be the only practical means of achieving the lawful aim, contain appropriate protection against abuse, preserve the essence of press freedom and be proportionate. This is a hard-edged, fact-sensitive judgment rather than a discretionary choice between equally lawful outcomes.

5. The interests of justice included enabling Interbrew to restrain further breaches and seek civil redress. Prevention or detection of crime was peripheral because it was not the purpose supporting Interbrew’s equitable right. Reputable private investigators had exhausted the presently available, less intrusive means of identifying the source.

6. The source’s motive was immaterial and ordinarily unknowable, but the apparent purpose of the leak was highly material. Its evident purpose was to cause harm by maximising the disruptive effect of the disclosure. In the circumstances, the public interest in protecting that source did not outweigh the countervailing public interest in enabling civil justice. Neither an express nor an implied promise of confidentiality could alter the weight of the public interest.

1. Court of Appeal (Civil Division): The news organisations’ appeal was dismissed unanimously. The delivery-up order was adjusted to take the same form against all five appellants.
2. High Court, Chancery Division: Lightman J granted an interlocutory Norwich Pharmacal order requiring the appellants to preserve and deliver up their original documents. He dismissed Interbrew’s claim against them for breach of confidence.