What’s the source?

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What’s the source?

With the West End adaption of the now infamous ‘Wagatha Christie’ trial captivating audiences, interest in the Vardy v Rooney case remains high. In this blog we look at two decisions dating back to April 2022, and the law surrounding the protection of journalistic sources.

What happened in April 2022?

Prior to the Trial taking place over the summer, the court held a Pre-Trial Review (PTR). A PTR is fairly standard in complex litigation and enables the Court to consider what final steps are necessary to ready a case for trial.

As is now well known, part of Mrs Rooney’s defence was that Mrs Vardy was the source of certain newspaper articles appearing in The Sun, either directly or indirectly via her agent Caroline Watt. Mrs Vardy denied this allegation. The evidence relevant to proving or disproving that allegation formed the basis of applications at the PTR.

At the PTR in April 2022, Mrs Rooney’s legal representatives made an application for third party disclosure against News Group Newspapers Ltd (NGN), the publisher of The Sun, of communications, such as WhatsApp messages, iMessages, texts, voice notes, Twitter direct messages and Instagram direct messages, between Mrs Vardy and nine named NGN journalists, and between Mrs Vardy’s agent, Ms Watt and the same nine journalists. This was an application for third party disclosure as NGN and its journalists were not parties to the legal claim.

The Judge ordered disclosure of communications with one journalist but carved out provision for NGN to assert a right or duty to withhold inspection on the basis of the journalistic source protection at section 10 of the Contempt of Court Act 1981 (the Third Party Disclosure Order).

Following the PTR, NGN provided a list of documents and a supporting witness statement that referred to s.10 of the Contempt of Court Act 1981 and article 10(1) of the ECHR. NGN stated that on the basis of such it could not confirm or deny whether it had documents within its possession or control falling to the terms of the Order.

The background to the application for third party disclosure includes that both Mrs Vardy and Ms Watts had waived their rights to confidential source protection (although Ms Watts withdrew her waiver prior to the PTR). You may recall that at Trial, much was made of the loss or destruction of evidence, including the mobile telephone that ended up in the sea. Mrs Rooney alleged evidence that was likely to be disclosed pursuant to the Third Party Disclosure Order was documents that would have fallen to Mrs Vardy’s disclosure obligations had those documents not been lost or destroyed.

Mrs Vardy had also issued witness summons against initially 8 journalists, although only 4 remained live following the PTR. 

A further hearing took place in April 2022 of several applications including:

(a) Three of the four journalists applied to set aside the witness summaries on the basis that the questioning was likely or would result in disclosure of the identity of their sources, contrary to section 10 of the Contempt of Court Act 1981, or in the alternative that Mrs Vardy could not rely upon witness summaries served;

(b) Mrs Vardy applied for permission to rely at Trial upon amended witness summaries served on the four journalists post the PTR;

(c) Mrs Rooney applied for an order compelling NGN to provide documents falling within the scope of the Third Party Disclosure Order.

It was stated within the Judgment, that Mrs Vardy supported the application for disclosure from NGN insofar as that engaged her source protection rights. 

Mrs Rooney relied upon 5 key points in support of her application:

  1. That the messages that fell to the Third Party Disclosure Order should have been disclosed, but for their destruction and Mrs Vardy would have not benefitted from s.10 when disclosing her own documents, and should not benefit from the loss or destruction of evidence.
  2. The evidence could be decisive and its exclusion adverse to the interests of justice.
  3. Both Mrs Vardy and Ms Watt provided waivers of source protection.
  4. Mrs Rooney believed that Mrs Vardy or Ms Watt were the source.
  5. The leaking of “gossip” for “venal purposes” should attract a low level of source protection, so that any public interest argument was stronger.

The applications were heard on the same day and concerned whether s.10 was engaged and if so, whether it was necessary in the interests of justice to override the protection set down by statute. The outcome of the applications can be found in the conclusion to this blog, but first we look at the law in this area as an area that is not frequently explored.

Press v subject

There has long been a conflict between journalists wishing to keep their sources private and the those who have been the subject of such articles finding out the source. In fact, the Lord Chief Justice described this succinctly in the case of Ashworth Hospital Authority v MGN Limited when he said:

“The fact that journalists’ sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public”.

The rights of journalistic sources to have protection has a long-established history in English law, and is recognised as a principal of “high importance” in the case of Various Claimants v MGN Ltd [2019]. The principle is now enshrined in statute. 

Contempt of Court Act 1981

Prior to the introduction of S.10 of the Contempt of Court Act 1981 the House of Lords in British Steel Corp (“BSC”) v Granada Television Ltd the courts considered if journalists could protect the confidentiality of their sources by refusing to disclose a source despite a Court order compelling disclosure of the same.

The facts of the case are that Granada published via a television interview, confidential information concerning the alleged relationship between BSC and Margaret Thatcher’s government. The day following the broadcast, BSC successfully obtained an ex parte injunction restraining the publication of documents disclosed to Granada by their source. Granada were subsequently ordered to return the documents to BSC; the confidential documents were then delivered by Granada albeit redacted in a manner that protected the identity of their source. It followed that BSC sought an affidavit from Granada disclosing the names of all parties responsible for supplying the documents. Granada refused .

The case was heard in the Chancery Division of the High Court and Court of Appeal who both agreed, in summary, that there was no absolute privilege that allowed Granada to legitimately refuse to disclose the source of information.

Granada appealed to the House of Lords. In dismissing the appeal, the House of Lords held that journalists and media generally had no immunity from the obligation to disclose their sources of information when disclosure was necessary in the interests of justice. However, the remedy was equitable and may be withheld in the public interest. This was not considered appropriate in this case and the order requiring Granada to disclose its sources stood.

S.10 provides that:

“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 scope of the protection under s.10 is broad; it extends to sources where information may not eventually find its way into the public domain, and a right to not disclose information that will or may result in identification of a source. 

The burden is on the applicant to show that disclosure should be ordered, in this case Mrs Rooney, once the journalist or publisher demonstrates that s.10 is engaged. The applicant must show that disclosure is necessary for one of the four grounds set out under statute, and where the starting point is an absolute ban on disclosure and show that there is no less invasive or alternative means of achieving the aim.

Prevention of disorder or crime

The Court considers the prevention of criminal activity or disorder is of great public importance. It will look at preventing crime generally instead of a particular identifiable action of crime.

National Security

If the Court considers that the interest of national security are engaged, it may be persuaded that this is of far greater importance and public interest than an individual’s freedom of expression.

Interests of justice

In the Vardy v Rooney case, only this limb was relied upon. This refers to the administration of justice in the course of legal proceedings. Nothing less than necessity will override the protection of journalistic sources. Necessity is a question of fact, not on discretion but will involve a balancing exercise of the interests engaged.

How did s.10 feature in the Vardy v Rooney case and what was the outcome?

Back to the hearing in the Wagatha Christie on 29 April 2022.

Mrs Vardy contended that s.10 was not engaged at all, as it was intended to protect confidential sources and she had waived any source protection rights (on the hypothesis that she was the source), or in the alternative (on the hypothesis that she was not the source) NGN had not shown that there was a reasonable chance or serious risk of comprising the source’s identity. This was an instance of agreement between Mrs Vardy and Mrs Rooney, who supported Mrs Vardy’s contention. 

The Judge held that s.10 applies irrespective of whether a source was confidential, and the word “confidential” could not be read into section 10. 

In regards to the witness summaries applications, Mrs Vardy had changed the form of those from 32.9(2)(a) (the evidence if known which would otherwise be included in a witness statement) to 32.9(2)(b) (if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness). Whilst the Judge granted Mrs Vardy’s applications to rely upon the revised witness summaries, this was subject to NGN’s application to set aside. 

The Judge found that as s.10 was engaged, the witness summaries were set aside. The Judge held that where Mrs Vardy denied she was the source, her waiver did not put her in the same position as a source who came forward to identify themselves as the source, or an “on the record” source. The Judge stated that there was a serious risk or reasonable chance that questioning the journalists would or was likely to disclose the identity of the sources.

Mrs Vardy did not contend that if s.10 CCA 1981 is engaged then it is overridden by necessity in the interests of justice.

Turning to the Third Party Disclosure Order, the Judge accepted that s.10 was engaged. 

The Judge accepted that there was no reason to go behind NGN’s statement that it could neither confirm nor deny, nor that that risked undermining the source protection.

Turning to the key question in respect of the application to compel disclosure from NGN, which was whether the source protection rights should be overridden, having considered the extensive arguments put forward by all the parties, and touched upon at the beginning of this article, Mrs Justice Steyn ordered that Mrs Rooney’s application failed on the basis that the balance did not fall in favour of overriding the s.10 CCA 1981 rights over disclosure in the interests of justice. Whilst the Judge accepted the documents were relevant, as the basis upon which the Third Party Disclosure Order was first made, s.10 gave rise to a different test. Although documents were relevant and could be highly significant, against the backdrop of documents that had been lost or destroyed, neither party argued they could not proceed without that third party disclosure. That itself would not be a ground to set aside the protections. Mrs Vardy’s waiver was a factor but no weight could be placed on Ms Watt’s following its withdrawal. The fact that Mrs Rooney believed that Mrs Vardy was the source, and or her agent, did not significantly lessen the source protection. The Judge also held that although the newspaper articles were at the lower end of free speech, this did not reduce the high importance of source protection rights and the Court was unable to judge the motives for the articles. 

The effect of the interim applications heard in April 2022 is that going into Trial, the issue of the source of the articles remained a live issue. 

At the Preliminary Meaning Hearing back in November 2020, Warby J (as he then was) held that the single meaning of the now infamous Instagram post was that over a period of years, Mrs Vardy had frequently and regularly abused her status as a trusted follower of Mrs Rooney’s personal account by secretly informing The Sun of private posts/stories and thereby making that information public. The Trial would therefore consider whether Mrs Vardy was a responsible for the “leaks” to The Sun, or if information was leaked with her knowledge. Ultimately the Judge founds that Mrs Vardy, together with Ms Watts, was party to disclosures to The Sun, and Mrs Rooney succeeded in proving the single meaning was true.

As well as the headlines generated, the Wagatha Christie litigation has resulted in a number of much talked about judgments. In the next blog we consider parties’ disclosure obligations and the firm warnings given by the Judge in handing down judgment.

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