Ashworth Hospital Authority v MGN Ltd

The House of Lords dismissed the appeal. The court affirmed the scope of the Norwich Pharmacal jurisdiction: disclosure may be ordered against a person who has been shown to have been involved or participated in wrongdoing even if that person is innocent of personal liability and even if the applicant has not begun or does not intend to begin legal proceedings against the source. The court held that section 10 of the Contempt of Court Act 1981 and Article 10 of the European Convention require a careful balancing exercise: disclosure of journalistic sources is permissible only where it is necessary, proportionate and justified by a legitimate aim (for example prevention of further wrongdoing, protection of rights of others). Applying those principles, the court concluded that the trial judge was entitled to order MGN to disclose information identifying the source of the unauthorised disclosure of patient medical records: the protection of confidential medical records, the risks to patients and staff and the need to deter and prevent further leaks made disclosure necessary and proportionate in the particular circumstances.

The respondent, Ashworth Security Hospital Authority, sought disclosure from MGN Limited (publisher of the Daily Mirror) of how the newspaper had obtained verbatim extracts from the medical records of Ian Brady, a detained psychiatric patient. The material published on 2 December 1999 was taken from the hospital's PACIS database and paid for by the newspaper via an intermediary. Rougier J ordered MGN to make and serve a witness statement identifying how it came into possession of the records and the persons involved; the Court of Appeal dismissed MGN's appeal and the matter proceeded to the House of Lords.

Nature of the application: an application for discovery of the identity of a source and related information under the Norwich Pharmacal jurisdiction to enable the authority to identify and discipline the source of a wrongful disclosure of confidential medical records.

Issues framed:

• whether the Norwich Pharmacal jurisdiction requires the claimant to have commenced or intend to commence proceedings against the source;
• whether the authority showed that the published material was confidential and that MGN (or its journalist) was sufficiently involved or participated in the wrongdoing to attract Norwich Pharmacal relief;
• the effect of section 10 of the Contempt of Court Act 1981 and Article 10 ECHR on ordering disclosure of journalistic sources, in particular necessity and proportionality; and
• whether ordering disclosure was necessary and proportionate in all the circumstances.

Reasoning: The court reviewed the historical and leading authorities on the bill of discovery and Norwich Pharmacal, concluding that the jurisdiction applies where the party from whom disclosure is sought has been involved or mixed up in the wrongdoing even if innocently and even if the applicant does not propose to sue the source. Section 10 and Article 10 require that disclosure of journalistic sources meet a threshold of necessity in the interests of justice (broadly conceived) and be strictly necessary and proportionate. Applying those tests, the court accepted the factual findings about the importance of confidentiality of patient records at Ashworth, the likely involvement of an employee wrongdoer, the detrimental effects of leaks on patient care and safety, and the absence of alternative means to identify the source. Those factors, the court held, justified the limited disclosure ordered in this exceptional case.

Wider context: the Lords emphasised the protective value of shielding journalistic sources as a general rule and the exceptional nature of orders requiring disclosure; they stressed the court's residual discretion to refuse disclosure where necessity and proportionality are not shown.

Appeal dismissed. The Lords held that (1) Norwich Pharmacal relief may be ordered against a person who has been involved or 'mixed up' in wrongdoing even if that person is innocent of personal liability and even where the applicant has not begun or does not intend to begin proceedings; (2) section 10 of the Contempt of Court Act 1981 and Article 10 ECHR require the court to be satisfied that disclosure of journalistic sources is necessary, proportionate and justified by a legitimate aim; and (3) on the facts — wrongful disclosure of confidential medical records, the serious risks to patients and staff and absence of alternative means to identify the leaker — disclosure was necessary and proportionate, so the order should be upheld.

Rougier J made the initial disclosure order on 19 April 2000. The Court of Appeal dismissed MGN's appeal (reported at [2001] 1 WLR 515). The appeal to the House of Lords was dismissed on 27 June 2002 ([2002] UKHL 29).