Court Upholds Journalistic Source Protection in Third-Party Disclosure Case

Citation: [2023] EWHC 3273 (KB)
Judgment on

Introduction

In the High Court of Justice case of Stokoe Partnership Solicitors v Dechert LLP & Ors, the Honourable Mr Justice Murray presided over two interconnected applications made by Stokoe Partnership Solicitors (“SPS”) and Mr Karam Al Sadeq, involving third-party disclosure orders against journalists and media organizations. These applications, hinged upon issues of journalistic confidentiality and the necessity and relevance of disclosure, raised significant points of law concerning the disclosure obligations of non-parties in litigation, journalistic source protection, and the balance of competing interests under UK civil procedural rules.

Key Facts

The case revolves around SPS and Mr Al Sadeq’s separate claims (collectively the SPS Proceedings and the Al Sadeq Proceedings) against Dechert LLP and certain individuals, involving an alleged hacking campaign. The claimants sought non-party disclosure orders for documents that allegedly supported the hacking campaign claims. They were from journalists associated with the Bureau of Investigative Journalism and The Sunday Times, purportedly, in possession of documents and information concerning this issue.

However, the respondents countered that disclosing the requested documents or even explaining why disclosure could not occur without revealing journalistic sources would pose a “serious risk” of compromising those sources, invoking protections under section 10 of the Contempt of Court Act 1981.

The court considered several legal principles, prominently those enshrined within the Civil Procedure Rules (CPR), specifically CPR r 31.17 regarding third-party disclosure orders, and the application of section 10 of the Contempt of Court Act 1981 which protects journalistic sources. Key doctrines include:

  1. The Relevance Requirement: An applicant must demonstrate that the third-party documents are “likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings.” The threshold is that documents “may well” meet this requirement—Three Rivers (No 4).

  2. The Necessity Requirement: Applicants must show that disclosure is “necessary to dispose fairly of the claim or to save costs.” Necessity is not absolute but is judged in the specific context of the case—Sarayiah v Royal and Sun Alliance.

  3. Court’s Discretion: Even if relevance and necessity are present, the court retains discretion to refuse the order if making it would compromise public interest, such as journalistic source protection—Frankson v Home Office.

  4. Protection of Journalistic Sources: The European Convention on Human Rights (Article 10) and associated domestic law safeguard freedom of expression, including the confidentiality of journalistic sources.

  5. Disclosure of Sources: The journalist bearing the burden must establish a “reasonable chance” or “serious risk” that compliance with a disclosure order would reveal sources—Vardy v Rooney.

  6. Redaction: Courts acknowledge that the risk of source disclosure may be mitigated through redaction or editing—R (Dyer).

Outcomes

In refusing the December Application, Mr Justice Murray found that while the applicants had satisfied the Relevance and Necessity Requirements, they were unable to overcome the respondents’ protection under section 10 of the Contempt of Court Act 1981, as the respondents had credibly demonstrated a “serious risk” of compromising journalistic sources if ordered to disclose the information, even in redacted form.

With regards to the costs of the earlier October Application, the court held that the normal rule of the applicant bearing the third party’s costs should apply (CPR r 46.1), as both applicants had acted reasonably throughout the process, and the later disclosure of a hacking instruction’s timing did not retrospectively render the respondents’ conduct unreasonable.

Conclusion

Mr Justice Murray’s ruling in Stokoe Partnership Solicitors v Dechert LLP & Ors firmly reinforces the protection of journalistic sources within the legal framework of third-party disclosure. The case elucidates key principles of necessity and relevance in disclosure applications, discretional power of courts in adjudicating these applications, and the high threshold required for overriding journalistic confidentiality. Importantly, the fairness in the conduct of litigation was underlined, where the costs order reflected a balance of the parties’ reasonable findings during proceedings, highlighting the courts’ role in safeguarding not just litigative justice, but journalists’ freedom of expression under the law.

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