Ashworth Security Hospital v MGN Limited

A Norwich Pharmacal order may require an innocent person involved in another’s wrongdoing to disclose the wrongdoer’s identity. Involvement, rather than personal liability, is the threshold requirement. Existing or intended proceedings against the wrongdoer are unnecessary where disclosure is needed to obtain lawful redress or prevent further wrongdoing.

An order identifying a journalist’s source requires stringent scrutiny. Disclosure must meet a pressing social need, be convincingly necessary and be proportionate to a legitimate aim. Protecting the integrity and confidentiality of medical records may satisfy those requirements in an exceptional case.

An employee of Ashworth Security Hospital probably extracted a patient’s medical records from the hospital database and supplied them, through a paid intermediary, to the publisher of the Daily Mirror. The hospital’s internal investigation failed to identify the source. It sought disclosure so that the responsible employee could be disciplined and further leaks deterred.

Rougier J ordered MGN Limited to explain how it obtained the records and to identify those involved. The Court of Appeal dismissed MGN’s appeal: [2001] 1 WLR 515. MGN appealed to the House of Lords.

The principal questions were whether Norwich Pharmacal relief required wrongdoing by MGN or contemplated legal proceedings against the source, and whether identifying a journalistic source was necessary and proportionate in light of statutory and Convention protection for press freedom.

1. Disposition. Lord Woolf delivered the leading speech, whose reasons all the other Law Lords accepted. The House unanimously dismissed the appeal and refused to extend the stay of Rougier J’s order.

2. Jurisdictional threshold. Per Lord Woolf, an order under Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 does not require wrongdoing or personal liability by the respondent. It is sufficient that another person committed a wrong and that the respondent became involved in it. Involvement is a significant threshold which distinguishes the respondent from a mere onlooker or witness. Lord Slynn expressly emphasised both the sufficiency and necessity of that requirement.

3. Purpose of disclosure. Per Lord Woolf, the jurisdiction is not confined to identifying a person whom the applicant intends to sue. Disclosure may enable the victim to obtain lawful redress or protect itself from further wrongdoing, including by dismissing a disloyal employee. The reasoning in British Steel Corp v Granada Television Ltd [1981] AC 1096 was approved. The contrary restrictions proposed in Financial Times Ltd v Interbrew SA [2002] EWCA Civ 274 were disapproved. Lord Woolf further considered that, in appropriate circumstances, a victim could seek identification of a person responsible for criminal wrongdoing to facilitate prosecution.

4. Safeguards. Per Lord Woolf, the jurisdiction remains exceptional and discretionary. The applicant must identify the wrongdoing in general terms and state clearly the purpose for which disclosure will be used. Use of the material is then confined, expressly or implicitly, to that purpose unless the court permits otherwise.

5. Journalistic sources. Per Lord Woolf, Contempt of Court Act 1981, section 10, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 10, require stringent scrutiny. The court must balance the importance of protecting journalistic sources against the interests served by disclosure. Necessity must be convincingly established, the interference must answer a pressing social need, and the order must be proportionate to a legitimate aim. Lord Hobhouse added, with the express agreement of Lord Browne-Wilkinson and Lord Nolan, that press freedom carries duties and responsibilities and must respect the rights of others, including confidentiality.

6. Application. Per Lord Woolf, the hospital had an interest in the integrity and confidentiality of its records independent of the patient’s own disclosures. The employee’s extraction and transmission of the records constituted wrongdoing, and MGN became involved by publishing material obtained through that wrongdoing. Identifying and disciplining the source was necessary to protect patient care, staff and public safety, restore trust in the records system and deter future leaks. The exceptional seriousness of the breach, the absence of another means of identification and the payment for the material supplied sufficient and proportionate justification for disclosure.

1. House of Lords: Unanimously dismissed MGN Limited’s appeal and refused to extend the stay of the disclosure order: Ashworth Security Hospital v MGN Limited [2002] UKHL 29.
2. Court of Appeal: On 18 December 2000, dismissed MGN Limited’s appeal from Rougier J: [2001] 1 WLR 515.
3. High Court: On 19 April 2000, Rougier J ordered MGN Limited to explain how it obtained the medical records and to identify the persons involved.