Ackroyd v Mersey Care NHS Trust

This appeal concerned an application for disclosure of the identity of a journalist's source who had leaked PACIS clinical notes relating to Ian Brady. The court applied the Norwich Pharmacal principle and the statutory and Convention protection for journalistic sources (section 10 Contempt of Court Act 1981 and Article 10 ECHR). While recognising the binding authority of the House of Lords decision in Ashworth Hospital Authority v MGN Ltd and the high confidentiality normally attaching to medical records, the Court of Appeal held that the appellant raised a distinct factual case (multiple sources, alleged public-interest motivation, lack of payment and long antecedent history documented in the Fallon Report) such that he had a real prospect of defending the claim. Accordingly summary judgment was inappropriate and the judge's order was set aside to allow a full trial on the disputed issues.

Background and parties:

• The claimant hospital sought an order requiring the appellant journalist, Mr Ackroyd, to identify the employee who provided PACIS clinical notes relating to Ian Brady which had been published in the Mirror. The hospital relied on the Norwich Pharmacal jurisdiction to obtain disclosure.
• The appellant was intermediary for the Mirror and had given the PACIS material to their journalist; he refused to identify his source and relied on the protection for journalistic sources (section 10 Contempt of Court Act 1981 and Article 10 ECHR) and on a public interest defence connected with a wider history of alleged mismanagement at the hospital (the Fallon Report).

Procedural posture: This is an appeal from Gray J's order of 18 October 2002 granting summary judgment in favour of the claimant and directing identification of the source. The judgment reviewed and distinguished the earlier multi-stage litigation in Ashworth Hospital Authority v MGN Ltd (Court of Appeal and House of Lords), which had resulted in disclosure orders against the newspaper chain.

Issues framed:

1. Whether the Norwich Pharmacal jurisdiction applied so as to require disclosure from the appellant (i.e. whether there was a relevant "wrongdoer" whose identity the appellant could be required to reveal).
2. Whether the original source could have a public interest defence to an action for breach of confidence or contract, such that the Norwich Pharmacal precondition of a wrongdoer would be absent.
3. Whether, notwithstanding the Norwich Pharmacal basis, section 10 of the Contempt of Court Act 1981 and Article 10 ECHR protected the journalist's sources and, if engaged, whether disclosure would be "necessary" and proportionate in a democratic society.
4. Whether summary judgment was appropriate in the light of these contested factual and legal issues.

Court's reasoning and conclusions:

• The court accepted that medical records attract a high level of confidentiality and that the principles articulated in the MGN litigation were binding on questions of law. The PACIS notes were, on inspection, plainly medical records.
• The court nonetheless held that Mr Ackroyd put forward a materially different factual case from that which had been determined in MGN: he asserted multiple sources, lack of payment, a public-interest motive tied to long-standing concerns about Ashworth (including the Fallon Report) and his own investigative role. These distinctions were sufficient to give him a real prospect of defending the claim on Article 10/section 10 grounds and to require a full trial to test the evidence.
• The court emphasised the central importance of the protection of journalistic sources under Article 10 and Goodwin jurisprudence and held that orders for disclosure are exceptional and require a proper, fact-sensitive balancing exercise; that exercise could not be concluded fairly on a summary application here.
• Accordingly the Court of Appeal allowed the appeal and set aside the summary judgment order so that the matters could proceed to trial.

Appeal allowed. The Court of Appeal set aside Gray J's summary judgment requiring the appellant to identify his source because, while the law in Ashworth v MGN is binding and medical records attract strong confidentiality, the appellant raised a materially different factual case (multiple sources, asserted public-interest motive, absence of payment, and background of the Fallon Report) and a serious Article 10/section 10 defence such that he had a real prospect of successfully defending the claim; the issue therefore required full trial consideration rather than summary disposal.

Appeal from Gray J (order of 18 October 2002) in the Royal Courts of Justice. The decision was given against the background of the related litigation Ashworth Hospital Authority v MGN Ltd ([2001] 1 WLR 515 (CA); [2002] 1 WLR 2033 (HL)), which the court treated as binding on points of law but not necessarily dispositive of distinct factual defences advanced by the appellant.