Various Claimants v MGN

Protection of journalistic sources may extend to information which would identify a source by deduction. It is not absolute: disclosure may be ordered where necessity in the interests of justice, national security, or the prevention of disorder or crime is convincingly established. The court must balance the competing interests, give substantial weight to press freedom, and consider whether a less intrusive measure would suffice. A disclosure regime should not impose widespread and disproportionate burdens on uninvolved claimants merely to protect a speculative or weakly evidenced risk affecting one case.

The defendant applied to vary an early disclosure regime in managed phone-hacking litigation. The regime required disclosure of outgoing call data relating to claimants and nominated associates. MGN sought to make disclosure of an associate’s data conditional on consent, arguing that disclosure might identify a confidential journalistic source. The application followed an earlier refusal to impose such a condition, when the risk had been treated as speculative. The central issue was whether the new evidence justified revisiting the regime and, if so, whether the proposed safeguard was necessary and proportionate.

1. Application refused. The emergence of evidence of an actual possible source was a new factor which justified reviewing the earlier decision, although the evidence remained very thin and did not explain how disclosure would identify the source.
2. Under section 10 of the Contempt of Court Act 1981, source protection extends beyond direct identification. It may apply where disclosure would enable identification by deduction from other material. The protection reflects the importance of press freedom and the chilling effect which source disclosure may produce.
3. The protection is qualified. Disclosure must be shown to be necessary in the interests of justice or another statutory purpose. Necessity does not mean absolute necessity, but it must be convincingly established. The court must conduct a careful balancing exercise, giving substantial weight to journalistic freedom and considering the nature and public significance of the information, the source, and the interests supporting disclosure.
4. The court must also consider whether a less intrusive or limited measure would achieve the proper balance. The proposed consent regime was impractical and risked non-response, disputes, delay and additional cost. It could deprive many claimants of important information needed to assess and settle their claims.
5. The asserted risk was weakly evidenced and concerned one possible source, whereas the proposed restriction would affect many cases. The information apparently supplied by the source appeared to concern private information with no suggested public-interest element, which was relevant to the balancing exercise. The interests of justice therefore favoured retaining the existing regime.

The application to vary the early disclosure provisions was refused.

First-instance application in managed litigation. No appellate history was stated.