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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Various Claimants v MGN [2018] EWHC 708 (Ch) (22 March 2018) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2018/708.html Cite as: [2018] EWHC 708 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Rolls Building, 7 Rolls Buildings London, EC4A 1NL
		22/03/2018

Mr Justice Mann :

Introduction

1. This judgment is given in the matter of an application by the defendant MGN to vary the early disclosure provisions which apply to this litigation. This litigation is managed litigation of claims against MGN based on unlawful phone hacking and other unlawful information gathering techniques. It has been proceeding for over five years and many hundreds of claims have been brought. Eight of them went to trial in 2015 and I delivered a judgment (Gulati & ors v MGN Limited [2015] EWHC 1482 (Ch)) which I understand has been instrumental in enabling the settlement of large numbers of cases ever since. It is the only trial that has ever taken place in this managed litigation. To date all other cases have settled.
2. The cases are managed in batches ("waves"). In 2015 a regime was put in place for early disclosure in these cases. Once a claimant has issued a claim, the claimant gets early disclosure of certain information. That information includes outgoing call information in respect of calls made to the claimant's mobile telephone or telephones, and similar information in respect of four "associates", nominated by the claimant. The purpose of that disclosure is to enable a claimant, at an early stage, to have an idea of the level of phone hacking which might have gone on in relation to that claimant and his or her private information. The number of calls made to those telephone numbers is, or can be, an important indication. Most claimants, and most of their associates, say that they were not in any significant form of contact with the defendant's journalists, so calls made to the telephones cannot be put down to bona fides calls. It is usually the case of the claimants that all those calls are attributable to an attempt to hack into the voice message systems of the claimant in question and his or her associates. The associates are individuals with whom the claimant had a close association and on whose message systems the claimant was likely to have left messages. The supposition behind the obtaining of call data in relation to associates is that the newspaper would be seeking information about the claimant not merely from the claimant's own voice message system, but also from the voice message systems of close contacts. That supposition has been substantiated in the decided cases.
3. There is no doubt that this early disclosure is very important to claimants because without the sort of information that it discloses a claimant is unlikely to know what sort of level of hacking went on in relation to him or her (at least in very many cases). Not only does it enable the claimants to understand the strength of their respective cases; it also facilitates settlement, because it may mean that many cases do not have to go so far as standard disclosure. I was told by Mr Munden for MGN that large numbers of cases settle before standard disclosure. It is therefore actually in the interests of both parties that this early disclosure be given. The significance of associate call data is apparent from my earlier judgment in Gulati. The number of calls to a claimant's phone does not necessarily present anything like the full picture of what was really going on, and in order to get a more useful idea (although not a definitive one) it is usually essential to investigate calls to associates. There can be no doubt about the significance of that information. I also think it highly likely that knowing the level of calls to associates is likely to be of great significance and great assistance when it comes to settling cases early. Without this information the claimant is more likely to be negotiating partially blind, whereas the defendant will not be.
4. Originally MGN opposed this early disclosure, but I ordered it in 2015 and it has been operating ever since. Indeed, its usefulness is emphasised by the fact that, by agreement, the parties have transposed the disclosure obligation which would arise once proceedings are issued to the pre-issue stage. Once a letter of claim is made, MGN, at least in most cases, provides the associate call data (and the claimant's call data) at that stage. That is obviously a sensible move. It facilitates pre-issue settlement. I consider that the fact that both parties agreed that the information should be provided at that stage demonstrates how useful and important it is.
5. When the proposal for providing this call data was first being debated in 2015 the defendant sought to introduce a qualification into the process. The defendant submitted that call data should only be provided where the associate in question had given his or her consent to its being provided. Two bases for this requirement were proposed. The first was a privacy point – the defendant suggested that there was confidentiality in the call data, that confidentiality residing in the associate. I rejected that submission. It did not seem to me that the receipt of calls where the maker was MGN would necessarily give rise to confidentiality rights in the associate. (It must be borne in mind that what was disclosed were calls made by, and not to, MGN.) The second objection was that the scheme might imperil confidential sources. At that stage the question was purely hypothetical and, as will appear below, I rejected that submission too. In the circumstances the proposal that associates should give their consent before calls to their numbers were disclosed was rejected. Until now no problems have apparently arisen.
6. However, MGN now proposes once again that the consent of associates should be provided before the associates' call data is disclosed. The reason is said to be that MGN can now see that the disclosure of this data in relation to one particular associate would reveal that associate as a confidential source. Understandably, MGN has not identified the claimant to which that associate relates, nor the associate in question. It would seem that MGN has reviewed its upcoming obligations and perceives that that will be a problem. It would also seem that the problem at the moment arises at the pre-issue stage, though technically what MGN is targeting is the post-issue disclosure obligation.
7. That proposal is resisted by the claimants. It is said by Mr Sherborne, who argued the case for them, that the very point which is now raised has already been decided by me against MGN. Nothing material has changed and that should be an end of the matter. Furthermore, it is said that the proposal is unfair, impractical and unbalanced. It is unfair and impractical because there could well be many instances where consent is not forthcoming. Some associates are individuals such as ex-partners or ex-spouses. Those individuals might well be minded to refuse consent, or simply not respond. There will be other cases in which contact has been lost with the associate. There may be other reasons why an associate will simply not respond or may refuse. The proposal that consent be obtained therefore runs the risk that in a significant number of cases, and in relation to a significant number of associates, the data would not be forthcoming. That would deprive the claimants of a potentially vital set of information about their claims which would put them in a much more difficult position when it comes to settling and/or trying their cases. Furthermore, the restrictions are said to be far too wide in that they catch all claimants even though it would seem that the object is to protect the identity of one source in one particular case. That would be disproportionately unfair on all the other cases in which there is no source problem. It is said that that is not required in all the circumstances of this case, notwithstanding the right of a journalist to protect his or her source.
8. Faced with the points about, and some evidence of, impracticality, Mr Munden modified his client's proposals. The original proposal had been for consent of an associate to be required in all cases save for those where the associate had died. During the hearing Mr Munden introduced further exceptions. He indicated that it would also not be required in cases in which a request had been made of an associate and not responded to, or in cases where it was demonstrated that the associate could not be tracked down.

Whether the point has been decided

9. After I had handed down judgment in the Gulati case there was some debate as to what steps should be taken in the remaining actions pending the consideration and hearing of an appeal. I ruled that steps should be taken in those other cases which would have to be taken irrespective of the result of that appeal (which was to be on damages only), and that they included the provision of outgoing MGN call data in respect of four nominated associates of any given claimant. As I have indicated, opposition to doing that without associate consent on the footing that it would compromise the privacy of the recipient was over-ruled by me, on 24^th July 2015. We therefore at that point got to a position in which the data was to be given. However, at a subsequent hearing on 11^th September 2015 MGN sought to visit the consent point again. I was originally disinclined to allow that, but having reflected on the matter, and since it appeared a new point of potential significance was being introduced, I allowed MGN to make its case for requiring consent. The new point was the possibility of compromising a journalist's confidential source. The point was not clearly taken in any of the documentary matter which led up to the hearing, but it seemed to pop its head out a little in the course of submissions, and I allowed it to be argued. Much of the argument that has taken place today took place on that occasion as well, Mr Emmerson QC taking the point that revealing outgoing associate call data might risk revealing a source. He also took the point that a reliable interpretation of outgoing call data might require incoming call data to be scrutinised as well, with an increased risk of exposing a source who ought not to be exposes. During this debate there was no evidence that there would actually be, or was, a source. The debate took place on the hypothesis that there might be.
10. I delivered judgment on the same day ([2015] EWHC 2861 (Ch)). I held:

"31. It seems to me that there is a potential problem lurking here, but it is largely dealt with by the fact that on the evidence that I have seen, and that has been provided, and indeed on the defendant's own assertions, it does not seem that the defendant is going to be able to raise a case that in any particular instance and associate was indeed a confidential source…

In those circumstances it seems to me that the confidential source point is a matter of pure speculation and the defendant is not going to be able to make a positive case that anyone was a confidential source. At this stage, therefore, it seems to me that that particular point has no particular weight.

32. Mr Emmerson's other point was that his client felt it could not freely produce the incoming call data and, therefore, to give the claimants that outgoing call data would be to give them an incomplete and misleading picture. If there was incoming data, even if not from a source, it would provide an entirely different evidential framework against which to judge the significance of outgoing calls. He may be right about the evidential framework but that is going to have to be a matter for his clients to address when they approach the litigation. It seems to me that on any footing data about calls to associates is going to be a disclose will disclosable or discoverable matter. That is the basis on which I made my original order.

33. If the defendant wishes to counter-balance that with its own information then it will have to approach the obtaining of that information in an appropriate way. If it does not produce that information then the court will be left to draw such inference as it is proper to draw from one side of the information only, because there will be only the one side of the information before the court. This may put the defendant in some difficulty in working out how to approach the matter, but it seems to me that it would be a completely wrong basis to refuse to allow the disclosure of outgoing calls on the footing that in some cases, which one cannot identify in case the person is a source, there will be some incoming data which should not be disclosed because of the possibility of a source. That would require every piece of outgoing data to be infected by the possibility (and it is no more than that on the evidence) that somewhere in somebody else's call data in an entirely different case, there is a source. That, it seems to me, is no basis on which to deal with disclosure."

11. In those circumstances I declined to revisit my earlier order.
12. Mr Sherborne submits that nothing has changed, and I should not revisit it again. I disagree, just. Something has changed. At the time of that hearing the prospect of a source was held out as a possibility, with no indication that it would ever be a practical problem. That is why I described it as pure speculation. Now, according to the limited evidence, a real source has swum into MGN's view, so that makes the point no longer speculative. (In fact Mr Munden said there had been previous possible source problems but they were dealt with by settlements which stopped the claims getting as far as presenting the problem.) The evidence is brief, but is in my view a new factor. Bearing in mind the importance given to protecting journalists' sources, this positive evidence is, just, a change in position which entitles MGN to have the situation reviewed.
13. The evidence is not great. Obviously in many cases the scope for putting in positive evidence about a source is not very great, lest the process of protecting the source ends up identifying him or her. Nevertheless, in the present case, it is still very thin. There is an assertion of a source, and an assertion that in the view of MGN's deponent that source could be identified from the outgoing call data. No particulars are given as to how that might be the case. It is therefore impossible to evaluate the risk of identification of the source. That is about it.
14. It is therefore necessary to consider the impact of that fact on the early disclosure regime which currently operates.

The principles

15. The starting point is section 10 of the Contempt of Court Act 1981:

"10 No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

The significance of this provision has been emphasised a large number of authorities. Some of them were cited to me but it is not necessary to deal with all of them. It is sufficient to point out following principles behind, and limits to, the protection.

16. First, the restraint on ordering disclosure is not confined to a disclosure which will in terms identify the source. It is sufficient for the purposes of section 10 that the compulsion would enable a source to be identified by a process of deduction from other material in the hands of the recipient of the information.

"If compliance with the requirement, whatever form it takes, will, or is sought in order to enable, another party to the proceedings to identify the source by adding to the pieces already in possession of that party last piece to a jigsaw puzzle in which the identity of the source of information would remain concealed unless that last piece becomes available to put into position, the requirement will fall foul of the ban imposed by the general words with which this section starts." (Per Lord Diplock in Defence Secretary the Guardian Newspapers [1985] 1 AC 339 at 349E-F.

Thus if it were shown to be likely that the recipient of the call data in question would, by looking at that data and drawing reasonable inferences, conclude that the associate in question was not merely a friend, partner, business partner or other close contact but was likely to be a source of private information about that claimant, then section 10 would or could be invoked.

17. Next, the importance of the principle is that it recognises that source protection generally is in the interests of a free press, and that in the interests of the free press any confidential source is capable of falling within the section. An encroachment on journalistic sources is capable of having a "chilling effect" on the operation of press freedom and therefore of democracy.

"Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a Democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest." (The judgment of the ECHR in Goodwin v United Kingdom [22 EHRR 123 at 143.)

18. Next, the protection of sources is not absolute. As section 10 itself provides, the protection can be overridden "in the interests of justice or national security or for the prevention of disorder or crime". In considering whether or not to make an order which would or might identify a source the court must apply the test of whether it is "necessary" to achieve one of those aims in the same way that a test of "necessity" is applied in relation to restrictions of freedom of speech under Article 10. See Ashworth Hospital Authority v MGN Ltd [2001] 1 WLR 515 at para 78 per Lord Phillips of Worth Matravers. That "necessity" must be "convincingly established" – Goodwin at para 40. However, it does not necessarily mean absolute necessity:

"I doubt if it is possible to go further than to say that 'necessary' has a meaning that lies somewhere between 'indispensable' on the one hand, and 'useful' or 'expedient' on the other, and to leave it to the judge to decide towards which ended the scale of meaning he will place it on the facts of any particular case. The nearest paraphrase I can suggest is 'really needed'." (per Lord Griffiths in In re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660, 704, cited with apparent approval by Lord Bridge in X Limited v Morgan Grampian Ltd [1991] AC 1 at p42.)

19. In assessing the comparative weights between an apparent need (or in the present case possible but incidental) for disclosure, there is a balancing act to be performed with journalistic freedom and consequential protection of sources being given great weight.

"Admittedly, it is in the first place for the national authorities to assess whether there is a "pressing social need" for the restriction [i.e. the detraction from protection of sources] and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under Article 10(2), whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court." (Goodwin at para 40)

20. In considering whether and to what extent to order steps which would or might lead to disclosure, the court must consider whether a less intrusive step will suffice in achieving the appropriate balance.

"Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist's sources…" (Sanoma UItgevers v The Netherlands [2011] EMLR 3 at para 92, with my emphasis)

21. The nature of the source, and the nature of the information, its real significance in terms of public interest and, potentially, its real significance to the would-be recipient of the information are all elements to be brought into account in assessing whether any particular risk to a source's identity should be guarded against or overridden.

"Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than an issue calling for the exercise of the judge's discretion, but, like many other questions of fact, such as the question whether somebody has acted reasonably in given circumstances, it will call for the exercise of a discriminating and sometimes difficult value judgment. In estimating the weight to be attached to the importance of disclosure in the interests of justice on the one hand and that of protection from disclosure in pursuance of the policy which underlies section 10 on the other hand, many factors will be relevant on both sides of the scale.

It would be foolish to attempt to give comprehensive guidance as to how the balancing exercise should be carried out. But it may not be out of place to indicate the kind of factors which will require consideration. In estimating the importance to be given to the case in favour of disclosure there will be a wide spectrum within which the particular case must be located. If the party seeking disclosure shows, for example, that his very livelihood depends upon it, this will put the case near one end of the spectrum. If he shows no more than that what he seeks to protect is a minor interest in property, this will put the case at or near the other end. On the other side the importance of protecting a source from disclosure in pursuance of the policy underlying the statute will also vary within a wide spectrum. One important factor will be the nature of the information obtained from the source. The greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of protecting the source will be the manner in which the information was itself obtained by the source. If it appears to the court that the information was obtained legitimately this will enhance the importance of protecting the source. Conversely, if it appears that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counterbalanced by a clear public interest in publication of the information, as in the classic case where the source has acted for the purpose of exposing iniquity. I draw attention to these considerations by way of illustration only and I emphasise once again that they are in no way intended to be read as a code …

… The importance to the plaintiffs of obtaining disclosure lies in the threat of severe damage to their business, and consequentially to the livelihood of their employees, which would arise from disclosure of the information contained in their corporate plan while their refinancing negotiations are still continuing. This threat, accurately described by Lord Donaldson of Lymington M.R. ante p. 23E, as "ticking away beneath them like a time bomb" can only be defused if they can identify the source either as himself the thief of the stolen copy of the plan or as a means to lead to the identification of the thief and thus put themselves in a position to institute proceedings for the recovery of the missing document. The importance of protecting the source on the other hand is much diminished by the source's complicity, at the very least, in a gross breach of confidentiality which is not counterbalanced by any legitimate interest which publication of the information was calculated to serve. Disclosure in the interests of justice is, on this view of the balance, clearly of preponderating importance so as to override the policy underlying the statutory protection of sources and the test of necessity for disclosure is satisfied. (per Lord Bridge in Morgan-Grampian at pp44-45.)

22. Mr Munden correctly pointed out that this case was the case which was also subject of the decision the European Court of Human Rights in Goodwin and that the ECHR disagreed with the House of Lords on the result. That is true. The House of Lords had made an order which required or approved disclosure, and at paragraph 45 of its judgment the ECHR indicated that in its view the balancing act had arrived at the wrong balance (see paragraph 45 of its judgment). But it did not undermine the principles invoked by Lord Bridge and the nature of the factors which might be said to contribute to any particular balancing exercise.

The application of those principles to this case

23. Mr Munden submitted that the disclosure of a source, which he said would arise from the maintenance of the present regime, would not be necessary as the concept of necessity has to be applied in accordance with the above principles. Disclosure is not necessary in the interests of justice because an acceptable and workable alternative regime can be put in place which would protect the source. If all associates have to be asked for their consent, the source would similarly have to be asked and would be at liberty to say Yes or No accordingly. If the source agreed then there was no problem – the source would have effectively disclaimed protection. If the source refused agreement then the information would not be disclosed and the source would be protected without his or her actually been revealed as a source. He or she would simply be a refusing associate. He submitted that, contrary to the submissions of the claimants, that regime would be workable and was a proportionate response to the problem with which his client was faced. It is a simple regime and goes no farther than is necessary in order to protect the source whilst balancing the legitimate interests of the various claimants.
24. Mr Sherborne for the claimants submitted that the system was neither workable nor fair. It was not workable because it will impose a whole new range of tasks and activity, and potentially expensive tasks and activity, on potential claimants. Letters would have to be written out and chased. Under Mr Munden's amended regime there would be the risk of large and significant debates as to whether or not proper steps had been taken to track down a non-responsive associate, or indeed as to whether any given associate could sensibly be tracked down at all. So far as fairness is concerned, it would be quite wrong to impose all these new obligations on claimants when, on the evidence, apparently only one claimant's case was susceptible to the revelation of a source. He also submitted that the evidence was not particularly strong so far as the risk to a source is concerned. No particulars were given as to how it might be that the mere revelation of outgoing call data would reveal the source. In addition, if there was a risk to a source, then this was a case in which the interests of justice overrode the protection of that particular journalistic source. The interests of justice operated in the interests of all claimants and would be very seriously (and disproportionately) compromised by the proposed regime because there would be a risk that claimants would not get information that they genuinely and very much needed. What was apparently sought to be protected was someone who was prepared to provide private information of no apparent public interest whatsoever to a tabloid newspaper. Such a source was not the same as a person who had disclosed information of a genuine public interest.
25. I am satisfied on the facts of this case that the case of the claimants is correct and that Mr Munden should fail in his attempt to impose his modified regime. I have reached that conclusion for the following reasons.
26. The information which claimants acquire under the early disclosure regime in relation to associates' call data is of great significance in this litigation. Techniques for dealing with phone hacking cases generally (all of which are under my management) have been refined over the years. In my view this early disclosure regime is very important to the just and proportionate disposal of cases. Although I have not been privy to the negotiations pursuant to which hundreds of cases have been settled, I am prepared to infer that they settle because the early disclosure gives the claimants what they need in order to assess the strength of their respective cases at an early stage, and achieves some sort of balance between information which the claimants will inevitably not have as to how much unlawful activity may have gone on and information which the defendant does have in its hands. I have had to observe more than once that there is a significant imbalance of information as between the claimants on one hand and the defendant on the other. The sort of activities that went on were of their nature covert, and evidence of them lies, almost exclusively, in the hands of the defendant. It is right that the defendant should disclose that information in an orderly fashion in order that the cases can be disposed off fairly. The fair disposal of these cases involves considering techniques to achieve an early settlement of the cases, or a more focussed pursuit of the cases if they do not settle. I consider it likely that the fact, if it be a fact, as told to me by Mr Munden, that most cases do not get as far as the full disclosure stage in relation to specific claims is a tribute to the early disclosure that has been given hitherto. Cutting down early disclosure in the manner proposed would risk putting claimants in a position in which they cannot fairly assess the strength of their respective cases and would put them in a position in which, in large numbers, they would either have to settle partially blind or pursue a claim which they might otherwise have settled. The numbers involved are not small. I have already referred to hundreds of cases that have already settled. Obviously a change in the regime would not affect them. However, in the current wave there are, on a rough and ready estimate, at least 40 or 50 cases which are likely to be affected, and in future waves (which regrettably there are likely to be) there will be even more. There will therefore be a very significant number of claimants who will be potentially affected.
27. I consider that the effect on cases is capable of being, and is likely to be, significant. There will, of course, be some associates who remain traceable, who remain on good terms with their claimant and who will be cooperative. However, there seems to me to be a high risk of a very significant number of non-returns. If the question of whether proper steps were taken to contact those people remains unresolved then the claimants will be deprived of important information. Even if resolved, a further significant cost burden will be imposed on claimants and time will be lost. There may well be associates whom the claimant would be reluctant to contact – for example, ex-partners or ex-spouses - for perfectly understandable and justifiable reasons. There may be persons who will refuse consent for reasons other than their being the supposed source. There was evidence before me of at least of one case in which an associate indicated that they would not wish to be involved. The end result of this assessment is that considerable burdens will be placed on claimants adding time and costs, and there is a real risk that information which a claimant genuinely needs will not be forthcoming even if all queries about non-responsive sources, as between claimants and the defendant, are resolved in favour of disclosure. In short, Mr Munden's scheme does not produce a workable scheme which operates in the way in which the overall scheme was intended to work and claimants will suffer as a result. There is also the rather ironic consideration that if at the end of the day the scheme works perfectly and all potential associates provide consent or their failure to respond is explained satisfactorily, the only person refusing a consent will be the source, thereby allowing the source to be identified, particularly since Mr Munden's application has drawn attention to him or her. It seems to me that Mr Munden's scheme can only work to protect the source if it works imperfectly so that a significant number of people either refuse consent or the view is taken that proper steps have not been taken to contact them. Only in that way will the source be provided with any cover.
28. Of some weight in the debate is the fact that the defendant has not really specified how it is that the source will be identified. In most source-identification cases the technique through which the source will be revealed is obvious, because what the applicant party seeks is actually, and in terms, identification of the source. In others it will be made obvious, or be specified, how it is that disclosure of a particular piece of information will, or is likely to, lead to identification of a source. In the present case none of that is true. All that one has on the evidence in this case is a statement by an assistant solicitor at the defendant's solicitors that he is confident that disclosure of the data would reveal the source. His first witness statement suggested that the conclusion would be drawn from both incoming and outgoing data. It must be remembered that incoming call data is not within the early disclosure regime. That was revised in his second witness statement (when the point about incoming data was made in responsive evidence) and the solicitor said that the relevant information was "almost entirely outgoing calls …which record the extensive and frequent communications between the Associate and the Defendant." That is some evidence for concluding that the source might be revealed from early disclosure of outgoing call data, but it is not that strong. (The point may be made that it may be more likely to do so now that the solicitor has drawn attention to the point.)
29. What seems to me to be particularly significant in the present case is the impact on the many in order to protect the identity of one associate in one case. In principle all the outgoing call data is disclosable and would be disclosable on standard discovery. Its disclosure would not depend on obtaining the consent of the individual in question. The existence of a source is only suggested in one particular case. In more normal litigation one would expect the defendant to be able to take the point in that particular case, but only in that particular case. What is a striking feature of the present situation is that the defendant seeks to qualify its obligation to give proper disclosure in many cases in order to protect the identity of a source in only one of them. It seems to me that in doing so the defendant is having to make a very unusual case. It is not suggesting that the revelation of call data in the many will of itself lead to the disclosure of a source in the one. It is suggested that it is necessary to limit disclosure otherwise available to the many in the interests of journalistic disclosure which is only relevant to one case. The protection of sources is and remains important, but the techniques to be adopted to protect them have their limits, and prejudicing dozens of cases in which the point does not arise is not likely to be in the interests of justice.
30. Of real significance in the present case is the nature of the information, and the nature of the source, which the defendant is seeking to protect. I refer to the points made by Lord Bridge in Morgan-Grampian, above. It is legitimate to consider the position of the source and the nature of the information apparently attributable to the source. It is also relevant to consider the purpose of the applicant in seeking to override journalistic source protection. In the present case no one is seeking the identity of a source per se. The identity of the source will, if the defendant is right, be revealed as a by-product of sensible and practical disclosure provisions. That is capable of engaging section 10 and Article 10. However, that only gets one as far as the balancing act. It is, of course, not known what information the alleged source is said to have provided, but judging from the large number of cases which have been brought, and having acquired experience, as managing judge, of the type of information which the newspapers have been interested in and which was pursued by their unlawful information gathering activities, it is likely that the source is someone close to one of the claimants who has been passing private information gleaned from being a position of some confidence with the claimant in question. Such a source is not per se disqualified from the protection of Article 10, but no one has ever suggested that sort of information has any public interest element to it. As far as I am aware a public interest defence has never been mounted in this litigation. That, too, does not disqualify a source from protection, but the relationship between the source and the claimant, and the nature of the information that was being provided, are all questions which fall to be taken into the balance when considering whether, and to what extent, the source should be protected.
31. Taking all these matters into consideration, I am quite satisfied that the balance lies in favour of leaving the early disclosure regime where it is. To invoke the qualifications which Mr Munden seeks to invoke would be to risk materially prejudicing a large number of claimants who have absolutely no association to the source protection issues and there would be a serious and disproportionate imbalance against them were they now to be deprived of the sort of early call information which has proved so important in the proper conduct of this litigation. Balancing their rights against the proper interests which are invoked in considering journalistic source protection, and the other matters referred to above, I consider that the interests of justice clearly lie in retaining the current necessary, and properly operated, early disclosure regime.
32. I therefore refuse the defendant's application.