In the course of an inquiry under the Inquiries Act 2005 into the culture, practices and ethics of the press the core participants were required to give a confidentiality undertaking and restriction orders were made under section 19 of the 2005 Act in relation to witness statements. Certain witness statements, documents and other evidence were published on the inquiry website, which were not the subject of any restriction order and, once published, were released from the undertaking. When the inquiry report was published, a final restriction order binding “all persons” prevented any disclosure or publication of any of the redacted material within the evidence or documents disclosed or published or of the material withheld by the inquiry. After the inquiry had concluded the claimants issued proceedings against the defendant alleging that they had been the subject of unlawful information gathering by the defendant, consisting of obtaining their private and/or confidential information using techniques such as phone-hacking, listening into live telephone calls, obtaining information by deception and the use of private investigators, which the defendant used in its published articles; and that the defendant had deliberately concealed the alleged wrongdoing from them. The defendant sought an order, inter alia, striking out parts of the particulars of claim based on documents (ledger cards which the defendant had provided to the inquiry in response to a notice under section 21 of the 2005 Act, recording payments to private investigators or other external providers of information) which were said to be the subject of restriction orders made under section 19 of the 2005 Act. It was common ground that the ledgers had not been published on the inquiry website and were not described in the schedule to the order, which also covered the following: “Also withheld: Various documents and other material without reference numbers, including but not limited to, confidential documents and other confidential and sensitive information.” The claimants contended that the ledgers were not the subject of any effective restriction order from the inquiry; and that, in any event, they had entered the public domain as a result of their publication by an online third party publisher so that the claimants had been entitled to rely upon them to plead their particulars of claim.
On the defendant’s application—
Held, application granted. (1) The approach which a court ought to adopt when considering alleged use of inquiry documents which were the subject of restrictions upon their use, under section 19 of the Inquiries Act 2005, was very similar to the well-established principles which prohibited collateral use of documents disclosed in litigation: (i) the administration of justice was usually promoted if there was no disincentive to making full and frank disclosure by the spectre of disclosed documents being used for other purposes (the “candour” principle); and (ii) compelled disclosure of a party’s own private/confidential documents represented a significant interference with that party’s rights and ought to be matched by a corresponding limitation on the use of the documents disclosed. More generally, and as a matter of policy, documents and information obtained under compulsion, by the exercise of statutory powers, ought not to be used for purposes other than those for which the powers were conferred. Restrictions on collateral use, which applied not only to the documents themselves but also to information derived from the documents, were imposed not merely in the interests of protecting any confidentiality in the relevant disclosed documents but principally to protect the administration of justice. There was a public interest in the prohibition on the collateral use of disclosed documents. However, the court had no power, equivalent to CPR r 31.22(1)(b), to permit the use of documents which had been provided in breach of a restriction order imposed under section 19 of the 2005 Act. The power to revoke or vary a restriction order was given, during the currency of the inquiry, to the chairman or, after the end of the inquiry, to the relevant minister. However, the starting point was that the court had to recognise, and give effect to, the significant public interest in ensuring that a restriction order made under the 2005 Act was observed and not breached. The analogy with the restrictions on collateral use of documents disclosed in legal proceedings was a powerful one because the underlying policy considerations were very similar. Accordingly, where (and to the extent that) there had been use of material in breach of a restriction order imposed under section 19 of the 2005 Act then, quite apart from any other sanction which might be available under the Act for any proved breach, such use was an abuse of process and would justify the striking out of the relevant parts of a statement of case (paras 271–274, 279, 296–298).
(2) The final restriction order prohibited the disclosure or publication of any of the redacted material which had been published by the inquiry and the withheld material. Its imposition neatly and effectively transferred the restrictions which had until that point been imposed by the undertaking upon any withheld material, which undertaking would have come to an end at the conclusion of the inquiry. The ledgers, which had been provided to the claimants by a third party, clearly fell within the “also withheld” section of the order. Given that the order had not been varied or revoked under section 20(5) of the 2005 Act, it continued in force indefinitely. Since the inquiry had now ended, the power to vary or revoke lay with “the minister”, namely the Secretary of State for Media, Culture and Sport and/or the Home Secretary. Accordingly, without obtaining the variation or revocation of the final restriction order, the claimants would not be permitted to advance those parts of the particulars of claim which had relied upon information drawn from the ledgers provided to them by the third party online publisher, whose identity was subject to a reporting restrictions order (paras 289, 290, 292–295, 298, 308).
David Sherborne, Julian Santos, Ben Hamer and Luke Browne (instructed by Gunnercooke LLP) for the first to fourth claimants, (instructed by Thomson Heath & Associates) for the fifth claimant and (instructed by Hamlins LLP) for the sixth and seventh claimants.
Adrian Beltrami KC, Jonathan Nash KC, Catrin Evans KC, Sarah Palin, Nathaniel Bird and Claire Overman (instructed by Baker McKenzie LLP) for the defendant.