Ackroyd v Mersey Care NHS Trust

Protection of journalistic sources is a strong public-interest principle. Under section 10 of the Contempt of Court Act 1981 and Article 10, disclosure is justified only where an overriding public interest, amounting to a pressing social need, outweighs source protection. Medical records have special status, but their confidentiality does not automatically determine the balance. The court must assess the particular records, evidence and current need for disclosure. A prior decision ordering disclosure against a newspaper does not summarily dispose of a different journalist’s defence where the facts, source motivation, public-interest case and lapse of time materially differ.

Robin Ackroyd, a freelance investigative journalist, was the intermediary who supplied the Mirror with PACIS clinical notes concerning Ian Brady. In earlier proceedings, Ashworth Hospital Authority obtained orders requiring the newspaper to identify its source, and the House of Lords upheld that outcome. The newspaper identified Mr Ackroyd, who declined to identify his source. Gray J granted summary judgment for the hospital on 18 October 2002. Mr Ackroyd appealed, relying on differences in evidence, the hospital’s history, the absence of payment to his sources, delay, and the protection of journalistic sources under section 10 of the Contempt of Court Act 1981 and Article 10. The central issue was whether the earlier decisions made disclosure summarily inevitable.

The Court of Appeal unanimously allowed the appeal, set aside Gray J’s summary judgment and permitted the claim to proceed to trial.

1. Protection of journalistic sources. The decisions in Ashworth Hospital Authority v MGN Limited [2001] 1 WLR 515 and [2002] 1 WLR 2033 established binding principles concerning the strong protection afforded to press sources. Under section 10 of the Contempt of Court Act 1981 and Article 10, disclosure requires an overriding public interest amounting to a pressing social need. The protection is not reduced merely because the publication lacks objective public interest or the source acted disloyally. The court must conduct a fact-sensitive necessity and proportionality assessment.
2. Medical records. Medical records occupy a special category of confidentiality. A departure from the normal protection must be truly exceptional and directly relevant to the need to disclose the records. The full PACIS notes were medical records, but they did not support the allegation that the force-feeding had been mishandled. Their confidential status did not automatically establish that disclosure was justified.
3. Public-interest defence and Norwich Pharmacal relief. May LJ assumed without deciding that a public-interest defence available to the original source might mean that there was no wrongdoer for the purposes of the Norwich Pharmacal jurisdiction. Even if that defence failed, it did not automatically follow that disclosure should be ordered. The separate Article 10 balancing exercise remained necessary.
4. Summary judgment. Mr Ackroyd’s case had a materially different evidential and factual focus from the MGN litigation. Relevant differences included his personal journalistic involvement, the use of several sources, the absence of payment, new evidence about the full records and the passage of time. Carnwath LJ stressed that the present pressing need to identify the source remained arguable, particularly in the absence of evidence of repeated breaches or a continuing cloud of suspicion. Ward LJ considered that the competing interests required full investigation and cross-examination. Mr Ackroyd therefore had a real prospect of defending the claim under Part 24 of the CPR, and there was also a compelling reason for trial.

The hospital was awarded its costs in both courts, with £20,000 payable on account within 14 days. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): On 16 May 2003, allowed the appeal, set aside the order of Gray J and ordered that the claim proceed to trial.
• High Court: Gray J granted summary judgment for the hospital on 18 October 2002 and ordered Mr Ackroyd to identify the employee who supplied the PACIS records.