Neutral Citation no. [2001] NIQB 17 
Ref:     
SHEE3360

 
Judgment: approved by the Court for handing down
Delivered:
04.05.2001
(subject to editorial corrections)

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION
 
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BETWEEN:
 
EUGENE REAVEY,PETER McCANN AND 
THOMAS McVERRY
Plaintiffs
 
AND
 
CENTURY NEWSPAPERS LIMITED
First Defendant
 
AND 
 
IAN PAISLEY
Second Defendant
 
-------- 
 
SHEIL J
 
            The plaintiffs in these proceedings do not seek to sue the two defendants, or either or them, for defamation or malicious falsehood, because they accept that in law they cannot do so.  The first-named defendant referred in its newspaper to Mr Reavey’s two brothers, both of whom were deceased, while Ms Oldham made her allegation about Mr Reavey only to Mr Reavey himself and not to any third party.  The second-named defendant, Mr Paisley, named all three plaintiffs in his speech in the House of Commons, but he did so under the cloak of the absolute privilege provided by Article 9 of the Bill of Rights 1688.  The plaintiffs do however in this Originating Summons seek orders against the defendants and each of them to enable the plaintiffs to sue for defamation or malicious falsehood certain persons whose identities are at present unknown to the plaintiffs but which are allegedly known to the defendants and each of them and who were the source of the information upon which the two defendants based their allegations.  The plaintiffs aver that the defendants and each of them are, or have been, in possession of certain documents and information which would identify those persons thus enabling the plaintiffs to sue them for defamation.  
            The factual background to these proceedings is to be found in the affidavits sworn by each of the plaintiffs on 11 July 2000.  In so far as the first-named plaintiff is concerned, Eugene Reavey, those facts are as follows.  Mr Reavey is a 52 year old farmer who lives with his wife and seven children in South Armagh.  On 4 January 1976 three of his brothers, all Roman Catholics, were the victims of a vicious sectarian attack in Whitecross, County Armagh, two of them being killed instantly while the third brother died later that month from his injuries.  It was widely believed that loyalist terrorists were responsible for the murders but nobody has ever been brought to justice for those crimes.  On the following day, 5 January 1976, there was another vicious sectarian attack, this time at Kingsmill, County Armagh, when a number of masked gunman hijacked and boarded a bus and proceeded to murder ten Protestant workmen; this crime came to be known as “The Kingsmill’s Massacre”; again no person has ever been brought to justice for those crimes.  Twenty‑two years later, on 15 August 1998, 29 people were killed and 300 people seriously injured in a massive bomb explosion in Omagh, County Tyrone, which was set off by a dissident faction of the Republican movement; again nobody has been brought to justice for those crimes.   
            On Friday 22 January 1999, the first-named defendant, which is the owner of “The Newsletter” newspaper, which has a wide circulation in Northern Ireland, published an article under the headline “25 Year Trail of Terrorism – ‘Super-Terrorists’ Responsible for Kingsmill and Omagh Killings”.  The second, third and fourth paragraphs of the article in the Newsletter read as follows:
“The Newsletter has learned that the ringleaders of the team which committed Ulster’s single worst atrocity in August also carried out the Kingsmill and Tullyvallen massacres in the mid-1970’s.  
 
And we have the police documents that prove it – details of which lift the lid on the identities of a gang of so-called ‘super terrorists’ who embarked upon their careers as terrorists with the Provisional IRA, later operating under the phoney tag of the South Armagh Republican Action Group during the ceasefires of the 1970’s.
 
Now they are with the renegade Real IRA and the Continuity IRA.”
 
            On the same page in the Newsletter on the same day there appeared another headline, reading “Dossier Shows the RUC Know the Killers”.  This article states that each page of the dossier is marked “Confidential” and that it was put together by detectives in the aftermath of the Kingsmill massacre.  The article goes on to state, inter alia, that the papers in the dossier reveal just how much the police knew about the atrocities at the time and that they knew from the outset who the perpetrators where, where they lived, and what they looked like, even down to their individual complexion types, but that they could never be prosecuted because no-one would testify against them.  The said article continued:
“One theory for why the massacre happened put forward at the time was that it was an act of retaliation for the two IRA men murdered the day before.”
Although the article goes on to reject that theory, Mr Reavey avers at paragraph 6 of his affidavit:
“I clearly understood this paragraph to be referring to my two brothers who were murdered and I was very angry that they should be referred to as IRA men.  On 25 January 1999 I telephoned the author, Ms Jeanette Oldham at the offices of the first defendant.  I spoke with her personally and I expressed my anger at the reference to my two deceased brothers and requested an apology.  She indicated that she had evidence that my brothers were in the IRA and said that she could not deal with my request for an apology without speaking with her editor.  The following day, no apology appeared in the newspaper.  I telephoned Ms Oldham once again and she told me that the newspaper’s solicitors had advised that she could say what she liked about deceased persons.  She then went on to accuse me directly of being a leader of the IRA and said that she had documentary evidence to prove it.  I do not know what these documents were or where she had obtained them, but I believe that it is a reasonable inference from her description of my two brothers that her allegation may be based upon the ‘police papers’ to which her article referred.”
 
            On 27 January 1999, five days after publication of the aforesaid articles in the Newsletter, the second-named defendant, who is a  Member of Parliament for the constituency of North Antrim, made a speech in the House of Commons in the course of which, as appears from Hansard, he stated:
“It is interesting to note that a police dossier carefully prepared on the Kingsmill’s massacre has recently come to light.  It shows that the police did thorough work, had definite evidence and could, if they had been encouraged, have got men into the courts; but this did not happen.  Now we are told by the police officer investigating the Omagh atrocity that he knows the identity of the bombers but he cannot secure a conviction.  
 
The Tullyvallen massacre, another terrible atrocity, was thought to be the work of some group calling itself the South Armagh Republican Action Group; but that, too, was undoubtedly a cover name for a gang of cross-border PIRA terrorists.  
 
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According to the dossier, Eugene Reavey, a well known Republican ‘set up the Kingsmill’s massacre’ and transported Malachy McParland to the site  -----.”
 
The second defendant went on to say that the Kingsmill massacre had been “carried out by some of the top PIRA” and that all the information was authenticated in the police document, which he stated named among others Peter McCann and Thomas McVerry, the second and third-named plaintiffs in these proceedings.
            In paragraph 9 of his affidavit Mr Reavey avers:
“It is clear from this extract from Hansard that throughout the duration of his speech the second defendant quoted passages directly from the text of the ‘police dossier’ and I believe that in order to do so he must have had access to it.  I have also identified a number of newspaper articles which were published in the aftermath of the second defendant’s speech in which he was reported as having refused to hand over the documents or to name the identity of the person who provided him with the documents.  I believe that these public statements represent evidence that the second defendant has had possession of the documents.  --  In the light of the similarity in the content of the second defendant’s speech and the article published in the Newsletter together with the short period of time which lapsed between each event, I also believe that the ‘dossier’ referred to by the second defendant must be the same ‘police papers’ upon which the Newsletter article was based.  In the light of the fact that the second defendant also referred to me as ‘a well known Republican’, I also believe that the dossier may contain statements to that effect and could well have enable Ms Jeanette Oldham to form her opinion that I was a member of the IRA.”
 
            In paragraph 10 of his affidavit Mr Reavey goes on to aver that subsequently he and his solicitor had a meeting with the Chief Constable of the Royal Ulster Constabulary, Sir Ronnie Flanagan, who stated that the matter was under investigation but that the Chief Constable was satisfied at that stage that the documents did not form part of a police dossier as alleged.  The Chief Constable also informed him that he had absolutely no evidence to connect him or another named person, Mr Ferris, with the Kingsmill massacre and that the police did not wish to question either of them about the killings.  In paragraph 12 of his affidavit the plaintiff denies that he is or ever was a member of the IRA, the PIRA or any other terrorist organisation, either Loyalist or Republican, and avers that he has never been involved in any acts of terrorism and had nothing to do with the Kingsmill massacre.  In paragraph 13 of his affidavit Mr Reavey continues:
“The Kingsmill massacre is one which has not been forgotten by the people of South Armagh and I believe that by associating me with such an atrocity and with membership of a Republican paramilitary group, the second defendant may have put myself and my family at risk of attack.  The comments which have been made by Ms Jeanette Oldham and the second defendant are entirely untrue and if the documents to which he referred do contain the allegations he has repeated, I believe that they are grossly defamatory of me and that the publication of those documents to each defendant may be actionable in libel or in malicious falsehood.  I am very anxious to clear my name of the allegations which have been made but have been advised that I may not commence proceedings against the second defendant because he made his comments within the chamber of the House of Commons and that he enjoys a privilege from suit.  However, I do wish to pursue any remedy which I may have against the person or persons who have provided both defendants with the documents upon which they have based their respective publications.  At present I do not know the identities of the person or persons in question and I require the assistance of each defendant in providing me with that information.”
 
            In paragraph 14 Mr Reavey continues:
“In order to be able to bring any proceedings against the person or persons in question, I am advised and believe that I require to see the documents and to establish that they do in fact contain what each of the defendants say that they contain.  My solicitor has written to each of the defendants requesting that they assist me by providing me with a copy of the documents and also the identity of the person or persons who gave them to each party.  The first defendant has responded through a solicitor and has refused to assist.  The second defendant has refused to make any response to the request.”
 
            Mr Reavey continues at paragraph 15 of his affidavit:
“In all of the circumstances which I have outlined, I believe that I have been left in a position where I have no avenue open to me by which to attempt to clear my name other than through these proceedings.  The second defendant has made allegations against me which are both outrageous and untrue.  I am unable to commence proceedings against him because he enjoys Parliamentary privilege.  He has not withdrawn his remarks or apologised to me for making them.  His allegations were based upon the contents of a ‘police dossier’ which I believe is also in the possession of the first defendant and the contents of which have been revealed by them through publication in its newspaper.  I have reason to believe that the ‘dossier’ is not in fact a police dossier but may originate from an alternative source.  The dossier has been supplied to each of the defendants by a person whose identity is unknown to me.  I believe that I may have a cause of action against that party for supplying the documents to each of the defendants and I believe that an action against that party is the only means by which I am going to be able to clear my name.  In order to commence that action I require to see copies of the dossier relied upon by each defendant and to know the identity of the person who provided them with it.  Each of the defendants has refused to assist me by supplying me with the information and the documents sought.”
 
Both the second and third‑named plaintiffs in their respective affidavits deny having had any knowledge of the Kingsmill massacre, over and above what was in the public domain, and deny that they were ever members of any paramilitary organisation or any other unlawful organisation or that they were ever involved in the commission of any acts of terrorism or had ever been arrested or questioned about any such acts.  
            As against each defendant the plaintiffs in their originating summons sought two forms of relief:
(i)        disclosure of documents comprising the police dossier;
(ii)       disclosure of the name of the source from whom each defendant received the information.
The plaintiffs wish to sue those persons who supplied the information to each defendant for libel or malicious falsehood.  They cannot do so without the information which is now sought in this summons.  There are no other avenues available to them to ascertain the identity of those persons other than by means of the present application.  
            Mr McLaughlin, who appears on behalf of the plaintiffs, relies in support of the plaintiffs’ application upon the principle enunciated by the House of Lords in Norwich Pharmacal v Customs and Excise [1974] AC 133 and followed in P v T Limited [1977] 4 All ER 200.
            In the Norwich case where the appellants were the owners and licensees of a patent for a chemical compound, it appeared that the patent was being infringed by illicit importations manufactured abroad.  In order to obtain the names and addresses of the importers with a view to suing them for breach of patent, the appellants sought discovery against the Commissioners of Customs and Excise of relevant documents which would disclose the identities of the importers.  Lord Reid at page 175B, having stated that the decided cases on the point were not very satisfactory, were not always easy to reconcile and were in the end inconclusive, stated his opinion as follows:
“They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrong-doers.  I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did.  It may be that if this causes him expense the person seeking the information ought to reimburse him.  But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.  
 
I am the more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make full disclosure even though the person wronged has no intention of proceeding against him.  It would I think be quite illogical to make his obligation to disclose the identity of the real offenders dependant on whether or not he has himself incurred some minor liability.  I would therefore hold that the respondents must disclose the information now sought unless there is some consideration or public policy which prevents that.  
 
Apart from public policy the respondents say that they are prevented by law from making this disclosure.  I agree with your Lordships that that is not so.  If it were they could not even disclose such information in a serious criminal case, but their counsel were, quite rightly, not prepared to press their argument so far as that.  
 
So we have to weigh the requirements of justice to the appellants against the considerations put forward by the respondents as justifying non-disclosure.  They are twofold.  First it is said that to make such disclosures would or might impair or hamper the efficient conduct of their important statutory duties.  And secondly it is said that such disclosure would or might be prejudicial to those whose identity would be disclosed.”
 
The House of Lords granted the plaintiff’s application for discovery against the Commissioners of Customs and Excise.
            In the later case of P v T Limited the managing director of T Limited informed P the plaintiff, who was a senior employee responsible for putting out to tender major contracts, that serious allegations had been made against him by a third party.  He refused however to provide further details as to their nature or the identity of the informant.  Following disciplinary proceedings by the company against P, in the course of which he was refused the information sought, he was summarily dismissed on the grounds of gross misconduct.  P subsequently brought a claim for unfair dismissal before an industrial tribunal in the course of which T Limited admitted that he had been unfairly dismissed.  T Limited however refused to re-engage P.  By this time his employment prospects were adversely affected by knowledge within the industry that he had been dismissed for impropriety for which he was unable to give any explanation.  P therefore commenced proceedings against T Limited and applied to the court for an order that it should disclose the precise details of the allegations made against him and the identity of the person who had supplied the information and that he be at liberty to use that information in proceedings against the informant for libel or malicious falsehood.  Sir Richard Scott VC made an order for discovery to enable P to determine whether any action lay against the informant, stating at page 208c:
“In the present case the first issue, I suppose, is whether the circumstances ought to incline the court to exercise what is a discretionary power to order discovery so that P may be enabled to bring proceedings to clear his name against the person or persons who supplied the information, which he contends to be false, to T.  There are a number of matters to be taken into consideration in this connection.  First, there is the nature of the action, which P might, if he had the information he seeks, bring against the third person or third persons.  Two alternative actions have been suggested.  One is an action in defamation.  It is not known of course whether the communication was oral or written.  The second is an action for malicious falsehood.  An action for malicious falsehood would require not only that the information given by the third person to T was false but also that the information was given with the intention of doing injury to P.  In effect it would be necessary I think for him to show that the individual giving the information knew it to be false or had no real belief in its truth.  Malice is an essential ingredient in the cause of action, but malice has its own particular meaning in this and most other torts where it is requisite.  So far as defamation is concerned it would be necessary for P to show that the information was false.  It would be necessary for him to show that the information disparaged him in the eyes of the recipient of it.  It appears clear that he would succeed in establishing that last requirement, for it was on the basis of this information that he was charged and convicted by his employers of gross misconduct.  I find it very difficult to conceive of a case in which an action for malicious falsehood could succeed in which there would not also be a good action for defamation.  An action for defamation might be available even if an action for malicious falsehood were not.  So far as defamation is concerned the need to show malice would arise only if the communication were covered by qualified privilege.  The present position is that it is not possible for P to know for certain whether he does or does not have a viable cause of action against the informant.  He does not know what was the information that was supplied.  As I read his affidavit, he is confident that he had committed no act justifying the description of gross misconduct, but until he knows what it is that he is said to have done his position in that regard will remain inchoate.  
 
In that respect his position is not the same as that of the plaintiff in the Norwich Pharmacal case.  In the Norwich Pharmacal case the plaintiff was able to demonstrate that tortious infringement of patent rights were being committed.  It did not know by whom.  It did not know who to sue.  But that there was tortious conduct against it was not in question.  In the present case, it is in question whether a tort has been committed against P.  He believes that it has.  The purpose of any order I make, as I suppose of any order that a judge ever makes, is to try to enable justice to be done.  It seems to me that in the circumstances of the present case justice demands that P should be placed in a position to clear his name if the allegations made against him are without foundation.  It seems to me intolerable that an individual in his position should be stained by serious allegations, the content of which he has no means of discovery and which he has no means of meeting otherwise than with the assistance of an order of discovery such as he seeks from me.  It seems to me that the principles expressed in the Norwich Pharmacal case, although they have not previously been applied so far as I know to a case in which the question whether there has been a tort has not clearly been answered, ought to be applicable in a case such as the present.”
 
At page 209e the Vice-Chancellor concluded:
“For my part, I see no reason whatever why the Norwich Pharmacal principle should be regarded as inapplicable to assist a prospective plaintiff to obtain information and documents necessary for the bringing of an action of libel or malicious falsehood in circumstances such as exists in the present case.  I am of the opinion that this is a case in which justice does require the granting of the relief sought by the notice of motion.  The relief is, in my opinion, granted by the principle in the Norwich Pharmacal case.”
 
            In so far as the first-named defendant is concerned, Century Newspapers Limited, Mr McLaughlin does not dispute the averment made by Ms Oldham on behalf of the first-named defendant in paragraph 3 of the affidavit sworn by her on 17 January 2001 in which she avers that the relevant documents which she received from a confidential source were returned by her to that source without copies being made or retained by her or the newspaper.  Accordingly Mr McLaughlin accepts that the plaintiffs cannot get an order for discovery of documents against the first-named defendant, when the first-named defendant no longer has those documents or any copies thereof.  
            As against the first-named defendant, Mr McLaughlin maintains however that the first-named defendant ought to disclose the source of its information.  The first-named defendant relies upon Section 10 of the Contempt of Court Act 1981 to resist such an order.  Section 10 provides:
“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 prevent of disorder or crime.”
 
            The first defendant also relies upon Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as do the plaintiffs, which is now incorporated into our law by Section 1(3) of the Human Rights Act 1998 and Schedule 1 thereof.  Article 10, which deals with freedom of expression, like Section 10 of the Contempt of Court Act 1981, is not absolute and reads as follows:
“1.       Everyone has the right to freedom of expression, this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
 
2.         The exercise of these freedoms, since carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
 
            Section 10 of the Contempt of Court Act 1981 first came before the House of Lords for consideration in X Limited v Morgan-Grampian (Publishers) Limited [1991] AC 1.  The facts in that case, briefly stated, were that a Mr William Goodwin, a journalist on the staff of a publication, The Engineer, obtained unsolicited information about a company Tetra Limited that it was in some financial difficulty, which information he incorporated into a draft article upon which he sought the comments of Tetra Limited.  Tetra Limited considered that the information contained in the article came  from a draft of a confidential corporate plan which had been missing for some time and accordingly Tetra Limited applied for and obtained  from the High Court an ex parte interim injunction to restrain Morgan-Grampian (Publishers) Limited, publishers of The Engineer, from publishing the article.  Tetra Limited obtained an order from the High Court requiring Mr Goodwin to disclose the notes which formed the basis of his article on the ground that it was necessary in the interests of justice for the source’s identity to be disclosed so as to enable Tetra Limited to bring proceedings against the source to recover the missing document, obtain an injunction preventing further publication or damages for the expense to which they had been put.  The Court of Appeal and the House of Lords upheld the decision of the High Court, holding that the necessity for the disclosure in the interests of justice had been established within the meaning of Section 10 of the 1981 Act.  The High Court had fined Mr Goodwin £5,000 for contempt of court for failing to disclose his source’s identity.  Subsequently the European Court of Human Rights held in a case brought by Mr Goodwin against the United Kingdom that the said order was a violation of Mr Goodwin’s right to freedom of expression under Article 10 of the Convention, reported Goodwin v United Kingdom [1996] 22 EHRR 123.  In Haughey v Prendiville and another [1996] NI 367 I held that the plaintiff in that case had not established on the balance of probabilities that the disclosure sought by him was necessary in the interests of justice so as to override the protection granted by Parliament in the first part of Section 10 of the 1981 Act.  In that case the plaintiff brought an action against the defendants, the editor and proprietor respectively of Phoenix Magazine, claiming, inter alia, the return of certain original documents.  The plaintiff alleged that those documents, which the plaintiff had given by way of discovery in an action against other parties, were the source of information contained in an article subsequently published by the defendants in the Phoenix Magazine.  The defendants claimed that by virtue of Section 10 of the 1981 Act, they were not required to disclose the source of the information contained in  the article.  In the course of my judgment in that case I referred to parts of the speeches made by Lord Bridge, Lord Lowry and Lord Oliver of Aylemerton in the Goodwin case in the House of Lords.  
            When the Goodwin case came before the European Court of Human Rights, the Court by a majority held (page 145):
“There was not, in the Court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim.  The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of Article 10(2), for the protection of Tetra’s rights under English law, notwithstanding the margin of appreciation available to the national authorities.
 
Accordingly, the Court concludes that both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10.”
 
The majority judgment of the Court stated (page 143): 
“The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.  
 
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 of 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.  
 
These considerations are to be taken into account in applying to the facts of the present case the test of necessity in a democratic society under Article 10(2).  
 
As a matter of general principle the `necessity’ for any restriction on freedom of expression must be convincingly established.  Admittedly, it is in the first place for the national authorities to assess whether there is a `pressing social need’ for the restriction 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.
 
The Court’s task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation.  In so doing, the court must  look at the ‘interference’ complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.”  
 
The judgment continued (page 145):
 
“However, as also recognised by the national courts, it will not be sufficient, per se, for a party seeking disclosure of a source to show merely that he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases his or her claim in order to establish the necessity of disclosure.  In that connection, the court would recall that the considerations to be taken into account by the convention institutions for their review under Article 10(2) tip the balance of competing interests in favour of the interest of democratic society in securing a free press.”  
 
            In considering Section 10 of the Contempt of Court Act 1981 this court has to take account Section 12 of the Human Rights Act 1998, the relevant parts of which for the purposes of the present case read as follows:
“Section 12
 
(1)        This Section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.  
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(4)        The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, ---- to –
 
(a)        the extent to which –
 
(i)        the material has, or is about to, become available to the public; or
 
(ii)       it is, or would be, in the public interest for the material to be published;
 
(b)       any relevant privacy code.”
 
With regard to Section 12(4)(a) the material is already in the public domain, having been published by the defendants.  With regard to Section 12(4)(b), Ms Oldham in her affidavit sworn on behalf of the first-named defendant on 17 January 2001 exhibits the Code of Practice of the Press Complaints Commission and the Code of Conduct of the National Union of Journalists.  Paragraph 15 of the former Code provides that “journalists have a moral obligation to protect confidential sources of information”, while paragraph 7 of the latter Code provides that “a journalist shall protect confidential sources of information”.
            Section 10 of the Contempt of Court Act 1981 was considered in a number of cases prior to the incorporation of the European Convention into our domestic law for the most part on 2 October 2000.  In Camelot Group Plc v Centaur Communications Limited [1998] 1 All ER 251 the Court of Appeal made an order for disclosure holding that the public interest in enabling the plaintiff to discover a disloyal employee who had leaked the plaintiff’s confidential draft accounts to a journalist was greater than the public interest in enabling him to escape detection and that such an order was necessary in the interests of justice within Section 10 of the Contempt of Court Act 1981.  In John v Express Newspapers Plc [2000] 3 All ER 257 the Court of Appeal refused to make an order for disclosure where counsel’s opinion had been leaked to a newspaper journalist on the grounds that the counsel’s chambers had failed to conduct an internal investigation to identify the source of the leak and further that it had not been established that disclosure was necessary in the interests of justice.  In Saunders v Punch Limited [1998] 1 All ER 234 Lindsay J refused to make an order for disclosure where the defendant published an anonymous article in its weekly magazine referring to unpublished records of meetings between the plaintiff and his solicitors in relation to an inquiry being conducted by the Department of Trade and Industry which led the plaintiff to believe that the magazine was in possession of those documents on the ground that the plaintiff had already obtained an injunction against the magazine to prevent any future publication of such privileged communications and that being so the interests of justice were not “so pressing in this particular case as to require that the ban on disclosure really needs to be overridden”.  
            The Court of Appeal in England has recently had to consider Section 10 of the Contempt of Court Act 1981 in the light of the incorporation of the European Convention into domestic law:  Ashworth Hospital Authority v MGN Limited [2001] 1 WLR 515.  The facts in that case, as appears from the head note were as follows.  An employee of a secure hospital, in breach of his duty of confidentiality under his contract of employment, supplied to an intermediary medical information held on the hospital computer database relating to a secure patient, who was a convicted murderer detained in custody in the hospital.  At the material time the patient was on hunger strike and conducting a media campaign about his treatment.  The information disclosed to the intermediary was more detailed than that put into the public domain by the patient.  The intermediary passed the information to a journalist who wrote an article published in the defendants’ newspaper which, though heavily edited, contained verbatim extracts from the information supplied.  It was likely that the intermediary was paid for the information and that part of the payment was passed on to the informant.  The hospital conducted an investigation in an unsuccessful attempt to identify the informant.  The hospital applied for orders (1) requiring the defendants to deliver up to it all medical records and copies or extracts therefrom relating to the hospital’s care or treatment of the patient, (2) an order restraining the defendants from publishing or disseminating information contained in those medical records and (3) requiring the defendants to identify any employee of the hospital and the name of the person or persons involved in the defendants acquiring the records.  The hospital sought the orders (1) to protect and enforce its asserted right to confidence in the clinical records maintained in respect of the patient and (2) in furtherance of its duty to maintain security, order and a therapeutic environment within the hospital.  The judge held that the hospital had no right of confidentiality in the information disclosed, as distinct from that belonging to the patient, but that the unauthorised disclosure created a highly detrimental impact on the security of the hospital, the treatment of its patients and the morale of the staff and that there was a risk of further disclosure if the informant was not identified.  The judge accordingly ordered the defendants to disclose the identity of the intermediary, as the only likely means of identifying the informant.  The Court of Appeal dismissed the defendants’ appeal against the order made by the judge.  In so doing the Court of Appeal had to take into account the fact that since the hearing at first instance the Human Rights Act 1998 had come into force.  Lord Phillips MR, having referred in his judgment to Sections 2 and 3 of the 1998 Act, continued at page 531D:
“These requirements should not, in practice, result in this court applying a different approach to that which fell to be applied by Rougier J.  The courts have frequently stated that in the field of freedom of speech there is no difference in principle between English law and Article 10 of the Convention: see for instance, Attorney General v Guardian Newspapers Limited (No 2) [1990] 1 AC 109, 283-284 by Lord Goff of Chieveley, Derbyshire County Council v Times Newspapers Limited [1993] AC 534, 551 by Lord Keith of Kinkel and R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 126 by Lord Steyn.”
 
At page 535H, Lord Phillips went on to say:
“It seems to me that the approach of the European Court to the question of whether disclosure of a source is ‘necessary’ involves a single exercise in which the court considers not merely whether, on the facts of the particular case, disclosure of the source is necessary to achieve the legitimate aim but, more significantly, whether the achievement of the legitimate aim on the facts of the instant case is so important that it overrides the public interest in protecting journalistic sources in order to ensure free communication of information to and through the press.”
 
At page 537B, Lord Phillips concluded:
 “The disclosure of confidential medical records to the press is misconduct which is not merely of concern to the individual establishment in which it occurs.  It is an attack on an area of confidentiality which should be safeguarded in any democratic society.  The protection of patient information is of vital concern to the national health services and, I suspect, to health services  throughout Europe.  This is an exceptional case.  If the order made by Rougier J discourages press sources from disclosing similar information in the future, this will be no bad thing.  I would dismiss the appeal.”
 
In the present case there is the public interest in the protection of journalists’ confidential sources, while on the other hand there are the specific legitimate interests of Mr Reavey in establishing the identity of the person or persons who provided the information to the first-named defendant and Ms Oldham that he was a leader of the IRA, with a view to suing such person or persons for defamation or malicious falsehood.  Mr Reavey accepts that he cannot bring any proceedings for defamation or malicious falsehood against the defendants to these proceedings for the reasons stated at the outset of this judgment.  If he can establish the identity of the source who informed the first-named defendant and Ms Oldham that he was in the IRA, he may institute proceedings against that person.  Should this court order the first-named defendant to disclose that source for that purpose?  Carrying out the balancing exercise required of the court, I do not consider on the facts of the present case that those specific legitimate interests of Mr Reavey, important though they are, are so important that they outweigh the public interest in the protection of the first-named defendant’s confidential sources in order to ensure free communication of information to and through the press.  Accordingly, in the exercise of my discretion, I refuse the relief sought by Mr Reavey against the first-named defendant.  
            I now turn to deal with the proceedings as against the second-named defendant, Mr Paisley MP, who named all three plaintiffs in his speech in the House of Commons.  Mr Paisley did not file any replying affidavit.  Accordingly, unlike the first defendant, it is not known if Mr Paisley still has the “dossier” or a copy thereof.  As already stated, the plaintiff in these proceedings do not seek to sue Mr Paisley because they accept that in law they cannot do so because of Parliamentary privilege as enshrined in Article 9 of the Bill of Rights 1688.  They merely seek an order against him for disclosure of “the dossier” or any copy which he has retained and/or disclosure of the source from which he received the information to enable the plaintiffs to sue those persons for defamation or malicious falsehood.
            It is accepted by all parties to these proceedings that it is for the courts to decide whether a privilege exists and that it is for the House of Commons to decide whether such a privilege has been infringed: see Pepper v Hart [1993] 1 All ER 42 at 73h and Erskine May Parliamentary Practice, 22nd Edition, Chapter 11.             Article 9 of the Bill of Rights 1688 provides:
“That the freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court, or place out of Parliament.”
 
Mr McLaughlin accepts that by reason of Article 9 no action can lie against a Member of Parliament for defamatory words, no matter how malicious, spoken in the course of any Parliamentary debate or proceeding.
            In Prebble v Television New Zealand Limited [1994] 3 All ER 407, the Privy Council in an appeal from New Zealand had to consider the matter of Parliamentary privilege as enshrined in Article 9 of the Bill of Rights 1688.  Lord Browne‑Wilkinson commenced his speech at page 409j as follows:
“Article 9 of the Bill of Rights (1688) precludes any court from impeaching or questioning the freedom of speech and debates or proceedings in Parliament.  It is well established that the article prevents a court from entertaining any action against a member of the legislature which seeks to make him legally liable, whether in criminal or civil law, for acts done or things said by him in Parliament.  Thus, an action for libel cannot be brought against a member based on words said by him in the House.  
 
In this action, the position is reversed: the libel action is brought, not against, but by a member of the legislature.  The defendants wish to allege that allegedly defamatory statements made by them were true and are seeking to demonstrate such truth by relying on things said and acts done in Parliament, ie the defendant’s wish to use Parliamentary materials not as a sword but as a shield.  The question is whether Article 9 precludes such deployment of Parliamentary material.”
 
Lord Browne-Wilkinson having referred to the fact that there was no longer any objection to the use of Hansard being used to prove what was done and said in Parliament as a matter of history, went on to say at page 418e:
“Thus, in the present action, there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House (particulars 8.2.10 and 8.2.14) or that the State-owned Enterprises Act 1986 was passed (particulars 8.4.1).  It will be for the trial judge to ensure that proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.  
 
It is clear that, on the pleadings as they presently stand, the defendants intend to rely on these matters not purely as a matter of history but as part of the alleged conspiracy or its implementation.  Therefore, in their Lordships’ view, Smellie J was right to strike them out.  But their Lordships wish to make it clear that if the defendants wish at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.”
 
            Mr McLaughlin, counsel for all the plaintiffs, submits that in the present proceedings the plaintiffs do not seek to impeach or question Mr Paisley’s freedom of speech or any debate or proceeding in Parliament, but merely seek his assistance in identifying such person or persons as were responsible for the publication of the dossier to which Mr Paisley referred in Parliament.  In Prebble’s case Lord Browne-Wilkinson at page 415d stated:
“The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say.  If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying.  Therefore he would not have the confidence the privilege is designed to protect.”
 
            In Church of Scientology of California v Johnson-Smith [1972] 1 All ER 378 the plaintiffs brought an action for libel against a member of Parliament for defamatory remarks made by him during a television interview.  The defendant pleaded fair comment and privilege.  In order to defeat those pleas the plaintiffs by their reply alleged malice and in order to establish that the defendant had acted with malice they sought to adduce evidence, including extracts from Hansard, of what the defendant had done and said in Parliament.  In the course of his judgment Browne J stated at page 381c:
“I accept the Attorney General’s argument that the scope of Parliamentary privilege extends beyond excluding any cause of action in respect of what is said or done in the House itself.  And I accept his proposition which I have already tried to quote, that is, that what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.  In my view this conclusion is supported both by principle and authority.
 
It will be observed, and, indeed, the Attorney General said, that the basis on which Blackstone puts it is that anything arising concerning the House ought to be examined, discussed, and adjudged in that House and not elsewhere.  The House must have complete control over its own proceedings and its own members.  I also accept the other basis for this privilege which the Attorney General suggested, which is, that a member must have a complete right of free speech in the House without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter.  So far as the authorities are concerned it will be seen that the words used are very wide.”
 
            Since the incorporation of the European Convention into our domestic law last October, Article 9 of the Bill of Rights, being primary legislation, must now, so far as it is possible to do so, “be read and given effect in a way which is compatible with the Convention rights”:  Section 3(1) of the Human Rights Act 1998.  “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility”:  Section 4(2) of the 1998 Act.  Mr McLaughlin on behalf of the plaintiffs does not submit that Article 9 is incompatible with a Convention right, but does assert that Article 9 of the Bill of Rights must now be read and given effect in a way which is compatible with the plaintiffs’ right to life and the right to respect for the family life and home as enshrined in Articles 2 and 8 of the Convention.  In the affidavits filed on behalf of the plaintiffs in the present proceedings, there is no evidence to suggest that their lives have been endangered in any way by the publication of part of the contents of the “the dossier”.  They merely aver that the allegations may have put them and their families at risk of attack.  This court takes judicial notice of the fact that during the past 30 years of “The Troubles” in Northern Ireland people have been murdered by reason of allegations made against them, such allegations frequently being based on mere rumour or suspicion, often ill-founded.  The allegations made against the plaintiffs are of a most serious nature and I do not doubt their concerns for the safety of themselves, their families and their homes, rights which are protected by Articles 2 and 8 of the European Convention.  
            Mr McLaughlin referred the court to Osman v UK [1999] 1 FLR 193 in which the European Court of Human Rights at page 222 et seq. made the following observations with regard to Article 2 of the Convention:
“The first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.  --  It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.  It is thus accepted by those appearing before the court that Article 2 of the Convention may also imply in certain well defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another.”
 
            Mr McLaughlin also referred the court to Venables & Another v News Group Newspapers & Others, a decision of the President of the Family Court given on its January 2001.  In that case the court granted injunctions restraining the publication of confidential and sensitive information about the future whereabouts and new identities to be given to two young boys on release from detention following a notorious murder, where they were at risk of injury or death if their identity or whereabouts became public knowledge.  The court held that it was satisfied that their lives, as well as their physical safety, would genuinely be at risk if their new identities and whereabouts became public knowledge.  Applying English domestic law and the right to life enshrined in Article 2 of the Convention, the court held that it was necessary in the exceptional circumstances of the case to place the right to confidence above the right of the media to publish information about the claimants.  
            If orders, such as those sought by the plaintiffs in the present proceedings, were made by this court, I have no doubt that they would inhibit a member of Parliament from stating fully and freely what he wishes to say in the House of Commons under the cloak of Parliamentary privilege.  If such orders were made and Mr Paisley refused to comply with them, could contempt of court proceedings be initiated against him and any other member of Parliament in a similar position for such a failure?  If the answer to that question is in the affirmative, that prospect is bound, in my opinion, to inhibit a member of Parliament from stating what he might otherwise state fully and freely under the cloak of Parliamentary privilege.  If the answer is in the negative, any such order would be of no purpose.  The absolute privilege provided by Article 9 of the Bill of Rights has often proved to be necessary and of great benefit in our democratic society.  I do not consider that in the present case recourse to a claim of Parliamentary privilege is disproportionate.  If the privilege accorded by Article 9 of the Bill of Rights 1688 is abused by any member, the question of such abuse and any penalties to be imposed therefor fall entirely within the jurisdiction of the House itself.
I dismiss this originating summons as against both defendants.  

 

 
 
Counsel:        Mr McLaughlin for the plaintiffs
                        Mr Good for the first-named defendant
                        Mr Allister for the second-named defendant
 
Hearing dates:          25 January, 15 February 2001

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION
 
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BETWEEN:
 
EUGENE REAVEY,PETER McCANN AND 
THOMAS McVERRY
Plaintiffs
 
AND
 
CENTURY NEWSPAPERS LIMITED
First Defendant
 
AND 
 
IAN PAISLEY
Second Defendant
 
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JUDGMENT
 
OF
 
SHEIL J
 
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