Vardy v Rooney

Factual and Procedural Background

This is a libel claim brought by Plaintiff against Defendant, with trial scheduled to begin on 10 May over seven days. The parties and three journalists summoned as witnesses have filed various pre-trial applications, with three remaining to be addressed in this judgment.

The Plaintiff issued witness summonses to eight journalists on 7 April 2022. Following responses and procedural rulings, four summonses were set aside and four remain active. The active summonses relate to three journalists who seek to set aside the summonses on grounds of source protection and the Plaintiff seeks permission to rely on amended witness summaries served on 26 April 2022.

Additionally, on Defendant's application, the court ordered non-party disclosure from Company A (NGN) concerning communications between the Plaintiff, her agent, and one journalist. Company A responded by neither confirming nor denying possession of relevant documents, citing protection of journalistic sources under section 10 of the Contempt of Court Act 1981 and Article 10 of the European Convention on Human Rights (ECHR).

Defendant challenges Company A's withholding of material and applies to compel disclosure of documents withheld. The court granted permission for short notice service of the applications.

Legal Issues Presented

1. Whether the witness summonses issued to the journalists should be set aside on the basis of source protection rights under section 10 of the Contempt of Court Act 1981 and Article 10 ECHR.
2. Whether the Plaintiff may rely on amended witness summaries served shortly before trial.
3. Whether Company A should be compelled to disclose documents withheld on grounds of source protection.
4. The scope and application of source protection rights, including whether section 10 protection extends only to confidential sources and the threshold for overriding such protection in the interests of justice.

Arguments of the Parties

Applicants' Arguments (Journalists)

• Witness summonses should be set aside pursuant to CPR rule 34.3(4) because questioning would disclose or likely disclose the identity of sources, contrary to section 10 of the 1981 Act.
• The claimant does not have, and should not be granted, permission to rely on the witness summaries served on 26 April 2022.
• Each applicant signed a statement asserting that explaining their evidence would disclose source identities.

Plaintiff's Arguments

• Section 10 protection applies only to confidential sources; since the Plaintiff has waived source protection, section 10 is not engaged on the hypothesis that the Plaintiff is the source.
• Alternatively, the applicants have not shown a reasonable chance or serious risk of compromising any source's identity.
• Section 10 and Article 10 do not bar questioning about an "exceptionally close relationship" between the journalists and the Plaintiff.
• Permission should be granted to rely on the amended witness summaries, which narrow the scope of questioning.

Defendant's Arguments

• If the journalists give evidence, they should be cross-examined on whether the Plaintiff or her agent are sources, how disclosures occurred, and the Plaintiff's knowledge.
• Excluding such questioning would be unfair given the Defendant's truth defence relies on alleged involvement of the Plaintiff and her agent as sources.
• Company A should be compelled to disclose all withheld documents to avoid an unfair trial and because the Plaintiff should not benefit from loss or destruction of evidence.
• Waivers of source protection by the Plaintiff and her agent are important factors in the balance.
• Leaking gossip for venal purposes attracts a low level of source protection.

Company A's Arguments

• Section 10 and Article 10 protection applies to any source, confidential or not.
• Company A neither confirms nor denies possession of documents and cannot disclose reasons for withholding without undermining source protection.
• The waiver by the Plaintiff's agent has been withdrawn and cannot be relied upon.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Arcadia Group Limited & Ors. v Telegraph Media Group Limited [2019] EWHC 96 (QB)	Source protection rights under section 10 of the Contempt of Court Act 1981 and their relationship to Article 10 ECHR.	Confirmed the long-standing importance of source protection and that section 10 protection extends beyond confidential sources to any source whose identity may be disclosed.
Various Claimants v MGN Limited [2019] EWCA Civ 350	High importance of journalistic source protection and the strict necessity test to override it.	Approved summary of principles on source protection and necessity; emphasized balancing interests and high threshold for overriding protection.
X Ltd. v Morgan-Grampian (Publishers) Ltd. [1991] 1 AC 1	Interpretation of "necessary" in section 10; balancing public interest in disclosure against source protection.	Guided the court's approach to necessity and proportionality in disclosure orders.
Goodwin v United Kingdom [1996] 22 EHRR 123	Protection of journalistic sources as essential for press freedom under Article 10 ECHR.	Reiterated the high importance of source protection and the need for overriding public interest to justify disclosure.
Secretary of State for Defence v Guardian Newspapers Ltd. [1985] 1 AC 339	Threshold for disclosing source identity is a "reasonable chance" or "serious risk" of identification.	Applied the threshold test for engaging section 10 protection.
Richard v BBC [2017] EWHC 1291 (Ch)	Clarification of threshold for source protection post-Human Rights Act 1998.	Confirmed threshold remains high and protection extends beyond identity to information provided by sources.
Ashworth Hospital Authority v MGN Limited [2002] 1 WLR 2033	Section 10 embodies Article 10 requirements; protection of sources vital for press freedom and public interest.	Emphasized chilling effect of disclosure orders and importance of protection regardless of merit of publication.
Becker v Norway (app 21272/12)	Article 10 protection applies even where source identity is known or source has come forward.	Supported broader interpretation of source protection rights beyond confidentiality.
Chief Constable of Greater Manchester Police v McNally [2002] 2 Cr. App. R 37	Limits on source protection where identity is known and public interest in disclosure is compelling.	Distinguished facts; held public interest in disclosure was strong in criminal context unlike private claim here.
R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115	Value of free speech varies by context; not all speech has equal weight.	Supported argument that nature of information affects weight of source protection.
PJS v News Group Newspapers Limited [2016] AC 1081	Hierarchy of free speech importance; "kiss and tell" stories are low on spectrum.	Acknowledged lower public interest in protecting gossip-type publications but protection remains important.
Financial Times Limited & Ors. v UK (821/03)	Motivation of source not a significant factor in source protection.	Court declined to weigh alleged venal motives of sources heavily in balancing test.

Court's Reasoning and Analysis

The court began by examining the statutory and jurisprudential framework governing protection of journalistic sources under section 10 of the Contempt of Court Act 1981 and Article 10 of the ECHR. It confirmed that the protection extends broadly to any source whose identity may be disclosed, not only to confidential sources. The court rejected the Plaintiff's narrow interpretation limiting protection to confidential sources, noting that the statutory language and case law support a broader application.

Applying the threshold test from Secretary of State for Defence v Guardian Newspapers Ltd. and Richard v BBC, the court found a reasonable chance or serious risk that questioning the journalists would disclose source identities. This was particularly so given the Defendant's defence relies on establishing the Plaintiff or her agent as sources, and questioning about their relationships with the journalists could reveal source information.

The court granted the Plaintiff permission to rely on the amended witness summaries, which narrowed the scope of questioning, but held that the summonses for the three journalists should be set aside due to engaged source protection rights.

Regarding the Defendant's application to compel disclosure from Company A, the court accepted Company A's assertion that it could neither confirm nor deny possession of documents without breaching source protection. The court considered whether the interests of justice outweighed source protection but found that the Defendant did not demonstrate necessity sufficient to override the statutory protection. The public interest in protecting sources remains high even where the information is gossip or of low public interest, and no significant public interest comparable to criminal misconduct allegations was present.

The court noted that waivers by the Plaintiff and her agent were either withdrawn or limited and did not substantially affect the balance. The Defendant's arguments about loss of evidence and fairness were acknowledged but did not tip the balance in favour of disclosure.

Holding and Implications

The court's final decision is as follows:

(1) The Plaintiff's application for permission to rely on the amended witness summary of the fourth journalist is GRANTED;

(2) The witness summonses issued to the three journalists who applied to set them aside are SET ASIDE due to the engagement of source protection rights under section 10 of the Contempt of Court Act 1981 and Article 10 ECHR;

(3) The Defendant's application for an order compelling disclosure and inspection against Company A is REFUSED as the interests of justice do not outweigh the statutory and convention-based protection of journalistic sources.

The decision directly affects the parties by limiting the scope of evidence available at trial and protecting journalistic source confidentiality. No new legal precedent is established beyond the application of established principles to the facts of this case.