"X" Ltd. v. Morgan Grampian (Publishers) Ltd. et al., (1990) 110 N.R. 367 (HL)

• Case Date: April 04, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 110 N.R. 367 (HL)

X Ltd. v. Morgan Grampian Ltd. (1990), 110 N.R. 367 (HL)

MLB headnote and full text

"X" Limited (respondents) Morgan Grampian (Publishers) Limited and Others (appellants) (First Appeal) and "X" Limited (respondents) v. Morgan Grampian (Publishers) Limited and Others (appellants) (Second Appeal)

Indexed As: "X" Ltd. v. Morgan Grampian (Publishers) Ltd. et al.

House of Lords

London, England

Lord Bridge of Harwich, Lord Templeman, Lord Griffiths, Lord Oliver of Aylmerton and Lord Lowry.

April 4, 1990.

Summary:

Two companies prepared a confidential financial plan that was to be used to obtain additional capital. A draft copy of the plan was stolen. The rogue, or a person associated with the rogue, provided a journalist with information from the plan. The journalist did not know the identity of his source. The companies learned that the journalist's publishers intended to print a story containing some of the stolen information. The companies obtained a quia timet injunction restraining publication. However, the companies also wanted to discover the rogue's identity so that they could prevent further disclosure. To that end, the companies requested that the journalist's notes be produced for discovery. The journalist submitted that under s. 10 of the Contempt of Court Act of 1981, the identity of a journalist's source was privileged. The court of first instance found that disclosure of the rogue's identity was necessary in the interests of justice and ordered the journalist and his publishers to produce the notes. Both the journalist and the publishers appealed. Prior to hearing the appeal, the Court of Appeal amended the order so that the notes would be sealed and held by the court pending the disposition of the appeal. The journalist refused to comply with the amended order. The Court of Appeal, in a decision reported at [1990] 2 W.L.R. 421, heard the appeal, dismissed the appeal, and gave leave to appeal to the House of Lords. However, because the journalist was in contempt of court when the appeal was being heard, the Court of Appeal refused to hear the journalist's counsel's submission. The journalist and the publishers appealed.

The House of Lords agreed to hear the journalist's appeal even though he was still in contempt. Their Lordships noted that the issue was essentially moot because the whole case would be presented in any event as part of the publishers' appeal. Their Lordships affirmed the decision of the court of first instance which found that the notes were exempt from the statutory privilege because the disclosure of the source's identity was necessary in the interests of justice.

Evidence - Topic 4193

Witnesses - Privilege - Communications to news media - Statutory privilege - Exceptions - Two companies prepared a confidential financial plan to be used to secure additional capital - A rogue stole a copy and gave a journalist information from the plan - The journalist did not know the identity of the rogue - The companies obtained an injunction preventing the journalist from disclosing the information - The companies also wanted the journalist's notes in order to ascertain the rogue's identity - The journalist claimed the source of his information was privileged under the Contempt of Court Act 1981 - The companies submitted that the matter was within the "interests of justice" exception - The House of Lords ordered disclosure of the notes.

Evidence - Topic 4193

Witnesses - Privilege - Communications to news media - Statutory privilege - Section 10 of England's Contempt of Court Act 1981 allowed a journalist to protect the source of his information unless it was against the public interest - Two companies wanted to examine a journalist's notes in order to discover the identity of the rogue who stole a copy of a confidential plan - The House of Lords held that the section also protected information which could indirectly identify the source - See paragraph 12 - Also, the section applied to pre-publication as well as post-publication situations - See paragraph 46.

Practice - Topic 4604

Discovery - Documents - Production of documents by nonparties - When ordered - A rogue stole a copy of the plaintiffs' confidential corporate plan - The rogue disclosed some of the information to a journalist - The plaintiffs wanted to examine the journalist's notes in the hope of determining the rogue's identity - The journalist submitted that the plaintiffs had no right to discovery because he was not a party to any action against the rogue - The House of Lords observed that a person who became involved in the tortious actions of others came under a duty to help the wronged party even though he incurred no personal liability - See paragraph 10.

Practice - Topic 7762

Costs - Special orders - Indemnity - A journalist claimed his notes were exempt from discovery because they were privileged under the Contempt of Court Act 1981 - The Court of Appeal ordered that the notes be sealed and held by the court pending the appeal - The journalist refused to comply - The Court of Appeal refused to hear the journalist's appeal because he was in contempt of court - The Court of Appeal dismissed the appeal - The House of Lords, although hearing the journalist's submission, also dismissed the appeal - Their Lordships cited the journalist's contempt as ground for awarding costs on an indemnity basis - See paragraphs 30, 43 and 50.

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - General - [See Practice - Topic 7762].

Practice - Topic 8852

Appeals - Bar or loss of right of appeal - Contempt of court - A journalist was ordered to produce his notes for discovery - The journalist and his publishers appealed - The Court of Appeal ordered that the notes be sealed and held by the court pending disposition of the appeal - Nevertheless, the journalist still declined to produce his notes - While the Court of Appeal heard the publishers' appeal, it refused to hear the journalist's submission because he was in contempt - The House of Lords agreed to hear the journalist's appeal - Their Lordships stated that the journalist should be heard because the full argument would be presented, in any event, as part of the publishers' submission - See paragraphs 21-26, 37.

Practice - Topic 8852

Appeals - Bar or loss of right of appeal - Contempt of court - The House of Lords considered the issue of whether a court should hear an appeal from an appellant who is in contempt of court - Their Lordships approved the following statement by Lord Denning, L.J., in Hadkinson v. Hadkinson, [1952] P. 285, 298, "... I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, ..., it impedes the course of justice in the cause, ... then the court may in its discretion refuse to hear him ..." - See paragraphs 21-26, 36.

Cases Noticed:

Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133, refd to. [paras. 10, 45].

Secretary of State for Defence v. Guardian Newspapers Ltd., [1984] Ch. 156, affd. [1985] A.C. 339, refd to. [paras. 12, 14, 43].

Inquiry under the Company Securities (Insider Dealing) Act 1985, Re, [1988] A.C. 660, refd to. [paras. 14, 41].

Astro Exito Navegacion S.A. v. Southland Enterprise Co. Ltd. (The "Messiniaki Tolmi"), [1981] 2 Lloyd's Rep. 595, refd to. [paras. 22, 24].

Hadkinson v. Hadkinson, [1952] P. 285, consd. [paras. 22, 36].

Statutes Noticed:

Contempt of Court Act 1981, (Eng.), sect. 10 [para. 11].

Counsel:

G. Robertson, Q.C., and A. Nicol, for the appellants, 1st appeal;

C. Clarke, Q.C., and H. Rogers, for the appellants, 2nd appeal;

John McDonnell, Q.C., and Raymond Davern, for the respondents.

This appeal was heard on March 5, 6, 7 and 8, 1990, by Lord Bridge of Harwich, Lord Templeman, Lord Griffiths, Lord Oliver of Aylmerton and Lord Lowry of the House of Lords.

The following speeches were delivered on April 4, 1990:

Lord Bridge of Harwich - see paragraphs 1 to 30;

Lord Templeman - see paragraphs 31 to 33;

Lord Griffiths - see paragraph 34;

Lord Oliver of Aylmerton - see paragraphs 35 to 43;

Lord Lowry - see paragraphs 44 to 50.