Arcadia Group Ltd & Ors v Telegraph Media Group Ltd (Rev 1)

Applications to compel a journalist to identify confidential sources engage the statutory protection in Contempt of Court Act 1981, s 10, read compatibly with Article 10. The applicant must prove, with cogent evidence, that disclosure is necessary in the interests of justice, meaning really needed and proportionate. Relevance, or the inability to maintain a claim without disclosure, is insufficient. The court must weigh the importance of the information against the private and public interests in source protection and consider whether a less invasive means exists. Where adequate admissions and undertakings substantially narrow the factual dispute, source disclosure may cease to be necessary and the application may be left under review rather than dismissed.

The claimants sought interim protection concerning alleged confidential information supplied to Telegraph Media Group Ltd. At this pre-trial hearing they applied for source identification and inspection of source-identifying documents. They also sought further disclosure, while the defendant sought disclosure and costs budgeting orders.

The source application arose against the background of the Court of Appeal’s interim injunction decision, [2018] EWCA Civ 2329, and the defendant’s pleaded refusal to admit the source circumstances. The central issue was whether, after further admissions and an undertaking to amend the Defence, source disclosure remained necessary in the interests of justice.

1. Source disclosure. The applicant had to identify the issue said to require disclosure. If relevant, the court had to apply s 10 of the Contempt of Court Act 1981 consistently with Article 10. The burden remained on the applicant.
2. Necessity required more than usefulness, expediency, relevance, or the inability to maintain a claim without disclosure. It required a pressing requirement in the interests of justice, supported by cogent evidence, sufficient to outweigh source protection and proportionate to the aim pursued. The court had to consider the wider effects of source disclosure and whether a reasonable, less invasive alternative existed.
3. Whether disclosure was necessary was a question of fact involving a difficult value judgment. Relevant matters included the importance of the claim or defence, the public interest in the information, the manner in which it had been obtained, and whether it appeared to have been obtained unlawfully.
4. The defendant’s further admissions established that the information had been passed in breach of confidence, that the defendant knew of the breach or likelihood of breach, and that the information was or was likely covered by NDAs. Its undertaking prevented it from inviting inferences contrary to those drawn by the Court of Appeal. Those concessions made the prospect of failure through uncertainty about an equivalent duty of confidence remote.
5. The source disclosure application was therefore not shown to be necessary in the interests of justice. No order was made, but the application was not dismissed and remained subject to satisfactory implementation of the undertaking and review if significant developments affected the issue. The associated inspection application was disposed of on the same basis.
6. No order was made on the claimants’ further disclosure application. Limited disclosure of without-prejudice correspondence was ordered on the defendant’s application. Other requests were premature, outside the application’s scope, or disproportionate. The third-party application was withdrawn. Costs budgets for the remaining phases were approved, with reductions to excessive hourly rates and partner involvement.
7. The possible Article 9 issue under the Bill of Rights 1689 was referred to the Lord Speaker so that the Parliamentary authorities could make representations.

The judgment records that Haddon-Cave J refused the initial interim injunction in [2018] EWHC 2177 (QB). The Court of Appeal reversed that decision and imposed an interim injunction in [2018] EWCA Civ 2329. This judgment determined subsequent pre-trial applications.