Hourani v Thomson & Ors

Source protection under Contempt of Court Act 1981, s 10, extends to any person who provides information to another with a view to its publication, whether or not the person is a journalist, acts in good faith, or is also involved in the publication. Motive and the public-interest character of the activity are relevant at the later stage of deciding whether disclosure is necessary, not to the meaning of source. Necessity means that disclosure is really needed, falling between indispensable and merely useful. The court must balance the importance of source protection and freedom of expression against the assistance disclosure would provide in resolving the issues. Disclosure was refused where the claimant could fairly meet the pleaded defences without identifying the sources.

The claimant brought libel and harassment proceedings against five defendants concerning demonstrations, online publications and stickers alleging his involvement in the murder of Anastasiya Novikova. The fifth defendant, Dr Waller, admitted organising much of the campaign but refused to identify the client who retained and funded him. The claimant applied for inspection of redacted documents and further information identifying the client or clients, relying on relevance to the pleaded harassment defences, possible third-party disclosure, and the vindication of rights against additional wrongdoers.

The application was transferred by Nicola Davies J at the pre-trial review, [2017] EWHC 56 (QB), for determination as a preliminary issue. The questions were whether the threshold conditions for disclosure were met, whether source-protection rights were engaged, and whether interference with those rights was necessary.

1. The information sought had some relevance to the issues. The redacted material fell within the scope of standard disclosure, and the court had power under CPR 18 to order information reasonably necessary and proportionate to enable the claimant to understand and meet the defence case.
2. Section 10 of the Contempt of Court Act 1981 imposes a qualified statutory prohibition on disclosure of information identifying a source. A publication is broadly defined, and a person responsible for a publication need not be a journalist or media professional. Protection extends to information supplied with a view to publication, even where disclosure of the source is only reasonably possible.
3. The word source should not be confined by categories based on journalism, good faith, motive or the source’s alleged participation in a joint publishing enterprise. Those matters may be relevant when assessing whether disclosure is necessary, but they do not determine whether the person is a source.
4. Necessity means really needed, lying between indispensable and useful: In Re An Inquiry Under The Company Securities (Insider Dealing) Act 1985. The court must recognise the vital importance of freedom of expression and source protection, while conducting a fact-sensitive assessment in which the weight of protection varies according to the source’s role and the public interest in the information.
5. The client identities were unlikely materially to assist determination of the pleaded defences, assessment of the key documents, or any third-party disclosure application. The claimant had not shown that disclosure was really needed for a fair trial. Source-protection rights were therefore engaged and the applications for inspection and further information were refused. The question whether identification might later be necessary to vindicate rights against the clients was left open for reconsideration after determination of the merits.

The judgment itself states that the application had been adjourned by the High Court at the pre-trial review for determination by the trial judge as a preliminary issue: [2017] EWHC 56 (QB).