CASE OF GOODWIN v. THE UNITED KINGDOM
Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland;N. Valticos;R. Pekkanen
10. Mr William Goodwin, a British national, is a journalist and lives in London. 11. On 3 August 1989 the applicant joined the staff of The Engineer, published by Morgan-Grampian (Publishers) Ltd ("the publishers"), as a trainee journalist. He was employed by Morgan Grampian PLC ("the employer"). On 2 November 1989 the applicant was telephoned by a person who, according to the applicant, had previously supplied him with information on the activities of various companies. The source gave him information about Tetra Ltd ("Tetra"), to the effect that the company was in the process of raising a £5 million loan and had financial problems as a result of an expected loss of £2.1 million for 1989 on a turnover of £20.3 million. The information was unsolicited and was not given in exchange for any payment. It was provided on an unattributable basis. The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document. On 6 and 7 November 1989, intending to write an article about Tetra, he telephoned the company to check the facts and seek its comments on the information. The information derived from a draft of Tetra’s confidential corporate plan. On 1 November 1989 there had been eight numbered copies of the most recent draft. Five had been in the possession of senior employees of Tetra, one with its accountants, one with a bank and one with an outside consultant. Each had been in a ring binder and was marked "Strictly Confidential". The accountants’ file had last been seen at about 3 p.m. on 1 November in a room they had been using at Tetra’s premises. The room had been left unattended between 3 p.m. and 4 p.m. and during that period the file had disappeared. 12. On 7 November 1989 Mr Justice Hoffmann of the High Court of Justice (Chancery Division) granted an application by Tetra of the same date for an ex parte interim injunction restraining the publishers of The Engineer from publishing any information derived from the corporate plan. The company informed all the national newspapers and relevant journals of the injunction on 16 November. 13. In an affidavit to the High Court dated 8 November 1989, Tetra stated that if the plan were to be made public it could result in a complete loss of confidence in the company on the part of its actual and potential creditors, its customers and in particular its suppliers, with a risk of loss of orders and of a refusal to supply the company with goods and services. This would inevitably lead to problems with Tetra’s refinancing negotiations. If the company went into liquidation, there would be approximately four hundred redundancies. 14. On 14 November 1989 Mr Justice Hoffmann, on an application by Tetra, ordered the publishers, under section 10 of the Contempt of Court Act 1981 ("the 1981 Act"; see paragraph 20 below), to disclose by 3 p.m. on 15 November the applicant’s notes from the above telephone conversation identifying his source. On the latter date, the publishers having failed to comply with the order, Mr Justice Hoffmann granted Tetra leave to join the applicant’s employer and the applicant himself to the proceedings and gave the defendants until 3 p.m. on the following day to produce the notes. On 17 November 1989 the High Court made a further order to the effect that the applicant represented all persons who had received the plan or information derived from it without authority and that such persons should deliver up any copies of the plan in their possession. The motion was then adjourned for the applicant to bring this order to the attention of his source. However, the applicant declined to do so. 15. On 22 November 1989 Mr Justice Hoffmann ordered the applicant to disclose by 3 p.m. on 23 November his notes on the grounds that it was necessary "in the interests of justice", within the meaning of section 10 of the 1981 Act (see paragraph 20 below), for the source’s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document, obtain an injunction preventing further publication or seek damages for the expenses to which it had been put. The judge concluded: "There is strong prima facie evidence that it has suffered aserious wrong by the theft of its confidential file. Thereis similar evidence that it would suffer serious commercialdamage from the publication of the information in the fileduring the near future. It is true that the source may notbe the person who stole the file. He may have had theinformation second hand, although this is less likely. Ineither case, however, he was trying to secure damagingpublication of information which he must have known to besensitive and confidential. According to the respondent,having given him the information he telephoned again a fewdays later to ask how the article was getting on. The plaintiff wishes to bring proceedings against the source forrecovery of the document, an injunction against furtherpublication and damages for the expense to which it has beenput. But it cannot obtain any of those remedies because itdoes not know whom to sue. In the circumstance of this case,in which a remedy against the source is urgently needed, Ithink that disclosure is necessary in the interests ofjustice. ... There is no doubt on the evidence that the respondent wasan innocent recipient of the information but the NorwichPharmacal case shows that this does not matter. The questionis whether he had become mixed up in the wrongdoing ... The respondent has sworn an affidavit expressing the viewthat the public interest requires publication of theplaintiff’s confidential commercial information. Counsel forthe respondent says that the plaintiff’s previous publishedresults showed it as a prosperous expanding company andtherefore the public was entitled to know that it was nowexperiencing difficulties. I reject this submission. Thereis nothing to suggest that the information in the draftbusiness plan falsifies anything which has been previouslymade public or that the plaintiff was under any obligation,whether in law or commercial morality, to make thatinformation available to its customers, suppliers andcompetitors. On the contrary, it seems to me that businesscould not function properly if such information could not be kept confidential." 16. On the same date the Court of Appeal rejected an application by the applicant for a stay of execution of the High Court’s order, but substituted an order requiring the applicant either to disclose his notes to Tetra or to deliver them to the Court of Appeal in a sealed envelope with accompanying affidavit. The applicant did not comply with this order. 17. On 23 November 1989 the applicant lodged an appeal with the Court of Appeal from Mr Justice Hoffmann’s order of 22 November 1989. He argued that disclosure of his notes was not "necessary in the interests of justice" within the meaning of section 10 of the 1981 Act; the public interest in publication outweighed the interest in preserving confidentiality; and, since he had not facilitated any breach of confidence, the disclosure order against him was invalid. The Court of Appeal dismissed the appeal on 12 December 1989. Lord Donaldson held: "The existence of someone with access to highly confidentialinformation belonging to the plaintiffs who was prepared tobreak his obligations of confidentiality in this way was apermanent threat to the plaintiffs which could only beeliminated by discovering his identity. The injunctionswould no doubt be effective to prevent publication in thepress, but they certainly would not effectively preventpublication to the plaintiffs’ customers or competitors. ... ... I am loath in a judgment given in open court to give adetailed explanation of why this is a case in which, if thefull facts were known and the courts had to say that theycould give the plaintiffs no assistance, there would, Ithink, be a significant lessening in public confidence in theadministration of justice generally. Suffice it to say thatthe plaintiffs are a, and perhaps the, leader in their veryimportant field, which I deliberately do not identify, withnational and international customers and competitors. They are faced with a situation which is in part the result oftheir own success. They have reached a point at which theyhave to refinance and expand or go under with the loss notonly of money, but of a significant number of jobs. This isnot the situation in which the court should be or be seen tobe impotent in the absence of compelling reasons. The plaintiffs are continuing with their refinancing discussionsmenaced by the source (or the source’s source) ticking awaybeneath them like a time bomb. Prima facie they are entitledto assistance in identifying, locating and defusing it. That I should have concluded that the disclosure of Mr Goodwin’s source is necessary in the interests of justiceis not determinative of this appeal. It does, however, meanthat I have to undertake a balancing exercise. On the onehand there is the general public interest in maintaining theconfidentiality of journalistic sources, which is the reasonwhy section 10 was enacted. On the other is, in my judgment,a particular case in which disclosure is necessary in thegeneral interests of the administration of justice. If thesetwo factors stood alone, the case for ordering disclosurewould be made out, because the parliamentary intention mustbe that, other things being equal, the necessity fordisclosure on any of the four grounds should prevail. Were it otherwise, there would be no point in having these doorways. But other things would not be equal if, on the particular facts of the case, there was some additional reason formaintaining the confidentiality of a journalistic source. It might, for example, have been the case that the information disclosed what, on the authorities, is quaintly called `iniquity’. Or the plaintiffs might have been a publiccompany whose shareholders were unjustifiably being kept inignorance of information vital to their making a sensibledecision on whether or not to sell their shares. Such afeature would erode the public interest in maintaining theconfidentiality of the leaked information and correspondingly enhance the public interest in maintaining theconfidentiality of journalistic sources. Equally, onparticular facts such as that the identification of thesource was necessary in order to support or refute a defenceof alibi in a major criminal trial, the necessity fordisclosure `in the interests of justice’ might be enhancedand overreach the threshold of the statutory doorway requiring some vastly increased need for the protection ofthe source if it was to be counterbalanced. Once the[plaintiffs] can get through a doorway, the balancing exercise comes into play. On the facts of this case, nothing is to be added to eitherside of the equation. The test of the needs of justice ismet, but not in superabundance. The general public interestin maintaining the confidentiality of journalistic sourcesexists, but the facts of this particular case add absolutelynothing to it. No `iniquity’ has been shown. No shareholders have been kept in the dark. Indeed the publichas no legitimate interest in the business of the plaintiffswho, although corporate in form, are in truth to becategorised as private individuals. This is in reality apiece of wholly unjustified intrusion into privacy. Accordingly, I am left in no doubt that, notwithstanding thegeneral need to protect journalistic sources, this is a casein which the balance comes down in favour of disclosure. Iwould dismiss the companies’ appeals. I can see no reason injustice for doing otherwise with regard to Mr Goodwin’sappeals." Lord Justice McCowan stated that the applicant must have been "amazingly naïve" if it had not occurred to him that the source had been at the very least guilty of breach of confidence. The Court of Appeal granted the applicant leave to appeal to the House of Lords. 18. The House of Lords upheld the Court of Appeal’s decision on 4 April 1990, applying the principle expounded by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases 133, a previous leading case: "if through no fault of his own a person gets mixed up in thetortious acts of others so as to facilitate their wrongdoinghe may incur no personal liability but he comes under a dutyto assist the person who has been wronged by giving him fullinformation and disclosing the identity of the wrongdoers." Lord Bridge, in the first of the five separate speeches given in the applicant’s case, underlined that in applying section 10 it was necessary to carry out a balancing exercise between the need to protect sources and, inter alia, the "interests of justice". He referred to a number of other cases in relation to how the balancing exercise should be conducted (in particular Secretary of State for Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued: "... the question whether disclosure is necessary in theinterests of justice gives rise to a more difficult problemof weighing one public interest against another. A questionarising under this part of section 10 has not previously comebefore your Lordships’ House for decision. In discussing thesection generally Lord Diplock said in Secretary of State forDefence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,350: `The exceptions include no reference to "the public interest"generally and I would add that in my view the expression"justice", the interests of which are entitled to protection,is not used in a general sense as the antonym of "injustice"but in the technical sense of the administration of justicein the course of legal proceedings in a court of law, or, byreason of the extended definition of "court" in section 19 ofthe Act of 1981 before a tribunal or body exercising thejudicial power of the state.’ I agree entirely with the first half of this dictum. To construe `justice’ as the antonym of `injustice’ insection 10 would be far too wide. But to confine it to the`technical sense of the administration of justice in thecourse of legal proceedings in a court of law’ seems to me,with all respect due to any dictum of the late Lord Diplock,to be too narrow. It is, in my opinion, `in the interests of justice’, in the sense in which this phrase is used insection 10, that persons should be enabled to exerciseimportant legal rights and to protect themselves from seriouslegal wrongs whether or not resort to legal proceedings in acourt of law will be necessary to attain these objectives.Thus, to take a very obvious example, if an employer of alarge staff is suffering grave damage from the activities ofan unidentified disloyal servant, it is undoubtedly in theinterests of justice that he should be able to identify himin order to terminate his contract of employment,notwithstanding that no legal proceedings may be necessary to achieve that end. Construing the phrase `in the interests of justice’ in thissense immediately emphasises the importance of the balancingexercise. It will not be sufficient, per se, for a partyseeking disclosure of a source protected by section 10 toshow merely that he will be unable without disclosure toexercise the legal right or avert the threatened legal wrongon which he bases his claim in order to establish thenecessity of disclosure. The judge’s task will always be toweigh in the scales the importance of enabling the ends ofjustice to be attained in the circumstances of the particularcase on the one hand against the importance of protecting thesource on the other hand. In this balancing exercise it isonly if the judge is satisfied that disclosure in theinterests of justice is of such preponderating importance asto override the statutory privilege against disclosure thatthe threshold of necessity will be reached. Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than anissue calling for the exercise of the judge’s discretion,but, like many other questions of fact, such as the questionof whether somebody has acted reasonably in givencircumstances, it will call for the exercise of adiscriminating and sometimes difficult value judgment. Inestimating the weight to be attached to the importance ofdisclosure in pursuance of the policy which underliessection 10 on the other hand, many factors will be relevanton both sides of the scale. It would be foolish to attempt to give a comprehensive guidance as to how the balancing exercise should be carriedout. But it may not be out of place to indicate the kind offactors which will require consideration. In estimating theimportance to be given to the case in favour of disclosurethere will be a wide spectrum within which the particularcase must be located. If the party seeking disclosure shows,for example, that his very livelihood depends upon it, thiswill put the case near one end of the spectrum. If he showsno more than that what he seeks to protect is a minorinterest in property, this will put the case at or near theother end. On the other side the importance of protecting asource from disclosure in pursuance of the policy underlyingthe statute will also vary within a spectrum. One importantfactor will be the nature of the information obtained fromthe source. The greater the legitimate interest in theinformation which the source has given to the publisher orintended publisher, the greater will be the importance ofprotecting the source. But another and perhaps moresignificant factor which will very much affect the importanceof protecting the source will be the manner in which theinformation was itself obtained by the source. If it appearsto the court that the information was obtained legitimatelythis will enhance the importance of protecting the source.Conversely, if it appears that the information was obtainedillegally, this will diminish the importance of protectingthe source unless, of course, this factor is counterbalancedby a clear public interest in publication of the information,as in the classic case where the source has acted for thepurpose of exposing iniquity. I draw attention to theseconsiderations by way of illustration only and I emphasiseonce again that they are in no way intended to be read as acode ... In the circumstances of the instant case, I have no doubtthat [the High Court] and the Court of Appeal were right infinding that the necessity for disclosure of Mr Goodwin’snotes in the interests of justice was established. Theimportance to the plaintiffs of obtaining disclosure lies inthe threat of severe damage to their business, andconsequentially to the livelihood of their employees, whichwould arise from disclosure of the information contained intheir corporate plan while their refinancing negotiations arestill continuing. This threat ... can only be defused ifthey can identify the source either as himself the thief ofthe stolen copy of the plan or as a means to lead to theidentification of the thief and thus put themselves in aposition to institute proceedings for the recovery of themissing document. The importance of protecting the source onthe other hand is much diminished by the source’s complicity,at the very least, in a gross breach of confidentiality whichis not counterbalanced by any legitimate interest whichpublication of the information was calculated to serve.Disclosure in the interests of justice is, on this view ofthe balance, clearly of preponderating importance so as tooverride the policy underlying the statutory protection ofsources and the test of necessity for disclosure is satisfied..." Lord Templeman added that the applicant should have "recognised that [the information] was both confidential and damaging". 19. In the meantime, on 23 November 1989, the applicant had been served with a motion seeking his committal for contempt of court, an offence which was punishable by an unlimited fine or up to two years’ imprisonment (section 14 of the 1981 Act). On 24 November, at a hearing in the High Court, counsel for the applicant had conceded that he had been in contempt but the motion was adjourned pending the appeal. Following the House of Lord’s dismissal of the appeal, the High Court, on 10 April 1990, fined the applicant £5,000 for contempt of court. 20. Section 10 of the Contempt of Court Act 1981 provides: "No court may require a person to disclose, nor is a personguilty of contempt of court for refusing to disclose thesource of information contained in the publication for whichhe is responsible, unless it be established to thesatisfaction of the court that disclosure is necessary in theinterests of justice or national security or for theprevention of disorder or crime." 21. Section 14 reads: "In any case where a court has power to commit a person toprison for contempt of court and (apart from this provision)no limitation applies to the period of committal, thecommittal shall (without prejudice to the power of the courtto order his earlier discharge) be for a fixed term, and thatterm shall not on any occasion exceed two years in the caseof committal by a superior court, or one month in the case ofcommittal by an inferior court." 22. In Secretary of State for Defence v. Guardian Newspapers Lord Diplock considered the expression "interests of justice" in section 10 of the 1981 Act: "The exceptions include no reference to the ‘public interest’generally and I would add that in my view the expression’justice’, the interests of which are entitled to protection,is not used in a general sense as the antonym of ‘injustice’but in a technical sense of the administration of justice inthe course of legal proceedings in a court of law ... [The expression `interests of justice’] ... refers to theadministration of justice in particular legal proceedingsalready in existence or, in the type of `bill of discovery’case ... exemplified by the Norwich Pharmacal Co. v. Customsand Excise Commissioners ... a particular civil action whichit is proposed to bring against a wrongdoer whose identityhas not yet been ascertained. I find it difficult toenvisage a civil action in which section 10 of the [1981] Actwould be relevant other than one of defamation or fordetention of goods where the goods, as in the instant caseand in British Steel Corporation v. Granada Television ...consist of or include documents that have been supplied tothe media in breach of confidence."