Various Claimants v MGN Ltd

Journalistic sources always attract a high level of protection. Disclosure may be required only where a competing interest of high public importance makes it necessary and proportionate.

Where material needed for the fair conduct of litigation is inseparably mixed with material identifying a source, the court may balance the public interest in effective access to justice against source protection. It need not assess disclosure of the source in isolation. The number of affected claims, the value of early settlement and the saving of costs and court time may bear on proportionality.

The absence of public interest in the information supplied does not remove source protection. A genuine public interest in that information would enhance it. The degree of identification risk may also resolve an otherwise even balance.

Numerous claimants alleged misuse of private information through unlawful interception of voicemail messages by newspapers published by MGN Ltd. An early-disclosure order required MGN to provide landline call data concerning each claimant and four nominated associates. The regime enabled claimants to assess claims and promoted early settlement.

MGN contended that disclosure in one claim risked identifying an associate as a confidential journalistic source. It sought to vary the regime for all claims by requiring each associate's written consent. Mann J refused that application in [2018] EWHC 708 (Ch), finding that the proposed scheme would prejudice many claimants and was unworkable.

The appeal concerned whether the judge had correctly applied section 10 of the Contempt of Court Act 1981, including its necessity and proportionality requirements, and whether he had adequately considered a less intrusive alternative.

1. Appeal dismissed. The judge had correctly undertaken the balancing exercise required by section 10 of the Contempt of Court Act 1981. Floyd LJ gave the judgment, with which the Senior President of Tribunals and McCombe LJ agreed.

2. The proposed consent procedure was unworkable. The managing judge was entitled to rely on his extensive experience of the multi-claimant litigation. He was not required to test a proposal which he could see would impose substantial burdens and risk injustice. Removing MGN's earlier concession about unresponsive associates reduced complexity but increased the likelihood that some claimants would be denied necessary information.

3. The judge had not equated material needed to pursue a claim with necessity in the interests of justice. He recognised both the high public importance of source protection and the need for an overriding competing interest. On the case presented, the call data needed by the claimants and the data capable of identifying the source could not be separated. The source-disclosure issue therefore could not be assessed in isolation.

4. The judge was entitled to balance source protection against the public interest in enabling numerous claimants to assess and prosecute their claims. Relevant considerations included the exceptional number of claims, the importance of the call data, the information imbalance created by covert wrongdoing, the encouragement of settlement, and the aggregate saving of costs, time and court resources. A variation affecting all claims to protect one source in one claim would have been disproportionate.

5. Source protection remains highly important even where the information supplied lies low on the public-interest spectrum. A legitimate public interest in the information enhances that protection. The judge therefore properly treated the absence of any claimed public interest as denying enhanced protection rather than removing the ordinary protection.

6. After section 10 is engaged, the degree of identification risk may still be considered, at least to resolve an evenly balanced case. Here it was only a minor consideration.

7. A narrower arrangement excluding calls made to the associate in the capacity of a source might possibly protect both interests. That possibility was evidentially undeveloped and did not show error in the order under appeal. MGN remained free to seek a fresh variation before the managing judge.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 350, unanimously dismissed MGN's appeal. It left open the possibility of a fresh application for a narrower variation of the disclosure regime.
• High Court, Business and Property Courts, Business List (ChD): Mann J refused MGN's application to vary the early-disclosure order in [2018] EWHC 708 (Ch). Newey LJ granted permission to appeal on 11 April 2018.