Hourani v Thomson & Ors

On an application for disclosure of a confidential source, the court must balance the protection afforded by section 10 of the Contempt of Court Act 1981 and Article 10 ECHR against the interests of justice. Disclosure must be necessary, meaning more than useful or expedient. The identity of a source may be relevant where it bears directly on the reasonableness of conduct, the credibility of the person claiming source protection, or the legitimacy and purpose of the relevant publications. Where those issues depend on disputed facts and credibility, the application should ordinarily be determined by the trial judge after oral evidence, so that the balancing exercise is conducted on the fullest reasonably available evidential basis.

The claimant brought claims in libel and harassment arising from demonstrations, online publications and stickers alleging that he was involved in the murder of Anastasiya Novikova. The fifth defendant, who organised aspects of the campaign, refused to identify his client, relying on source protection under section 10 of the Contempt of Court Act 1981 and Article 10 ECHR.

The claimant applied under CPR 18.1 for disclosure of the client's identity. The central issues were whether the identity was relevant to the harassment claim and the defence that the conduct was reasonable, and whether disclosure was necessary in the interests of justice. The court also considered delay and whether the issues should be determined before trial.

1. The application was not defeated by delay. In light of the history of incomplete, redacted and late disclosure, the claimant had acted promptly after the refusal to identify the client and the substantial disclosure made on 1 December 2016.
2. The identity of the client was potentially relevant to the harassment claim. The claim required consideration of whether the pursuit of the alleged course of conduct was reasonable in the particular circumstances. The fifth defendant relied substantially on information supplied by, and discussions held with, the client.
3. The identity was also relevant to the Article 10 and section 10 assessment. The court had to consider whether the fifth defendant was genuinely acting as a journalist, whether he acted in good faith, the precise relationship between him and the client, the status of the documents relied upon, and whether the campaign was legitimate.
4. Section 10 protected information capable of identifying a source, but the protection could be overridden only where disclosure was necessary in the interests of justice. The authorities established that necessity lies between indispensability and mere usefulness, and that source protection requires careful scrutiny and a balancing exercise.
5. There was an apparent inconsistency between the fifth defendant's evidence and disclosed documents concerning the existence of an ultimate client. That issue directly affected credibility, the nature of the relationship, and the reasonableness of the fifth defendant's conduct. It could not satisfactorily be resolved on the present application without cross-examination.
6. The application for disclosure of the client's identity should therefore be heard by the trial judge, who would hear the fifth defendant's oral evidence and be in the best position reasonably available to conduct the required balancing exercise.

First-instance decision. The court directed that the disclosure application be heard by the trial judge.