CLIFF, THE BBC AND PART 18 OF THE CPR: “WE DON’T TALK ANY MORE”

May 26, 2017 · by · in Civil evidence, Civil Procedure

In Sir Cliff Richard OBE -v- The British Broadcasting Corporation [2017] EWHC 1291 (Ch) Mr Justice Mann considered an issue of whether the BBC should answer Part 18 questions. It is unusual for one Part 18 question to be the subject of a judgment. The question, of course, raised wider issues.

THE CASE

Cliff Richard is bringing an action against the BBC and South Yorkshire Police. The action is based on infringements of privacy rights. The BBC found out about an investigation into Mr Richard, tipped off (it is said) by a member of the police force.

THE REQUEST AND THE REPLY

One issue in the case is the source of the BBC’s information.

    1. The claimant pursued the question of the source in a Request for Further Information dated 18th January 2017. The respondent provided the following information under paragraphs 5 and 9 of its Defence:

“1. The source was not an open source. The source provided information to Mr Johnson in confidence and on condition that Mr Johnson would protect the source’s identity. These are familiar attributes of a confidential journalistic source.”

    1. Request 2 and its answer is the one which is in issue in the application before me:

“2. Please state whether or not Mr Johnson’s source was (to Mr Johnson’s knowledge or belief) from within Operation Yewtree or a person who had obtained that information from Operation Yewtree. (For the avoidance of doubt, the Claimant contends that for the First Defendant to answer this Request will not require the First Defendant or Mr Johnson to disclose the identity of their individual source or any information that will create a reasonable chance of this occurring. As such, no issue arises under s10, Contempt of Court Act 1981.)

Response

2. The information sought by this request, if disclosed in these proceedings, may lead to the identification of Mr Johnson’s source. The First Defendant respects the ethical obligation of Mr Johnson as a journalist to protect his source. Accordingly the First Defendant does not respond to this request. Its case is, in any event, sufficiently particularised at paragraph 9 of the Defence. The First Defendant does not advance any case in relation to the source or Mr Johnson’s contact with the source beyond that pleaded at Defence paragraphs 5 and 9, and as explained in Response 2 above.”

THE PROPOSALS MADE PRIOR TO THE HEARING

Prior to the hearing both parties made suggestions in relation to responses to the Part 18 question.
    1. The claimant has clarified his position by saying that he would be content with a Yes or No covering both limbs of its question – that is to say, the claimant does not require a separate answer in relation to each part of the question (one relating to a source within the Operation and one relating to a person who obtained the information from a person within the Operation). The BBC maintains its pleaded stance.
    2. In the course of the run-up to the hearing before me the BBC sought to avoid the debate by proffering an agreed assumption on which the case could take place. In a letter dated 28th April 2017 its legal adviser said:
“We have heeded those indications [by which was meant suggestions made by me on a previous hearing] and in lieu of answering the Request, the BBC is prepared for the case to be determined on the assumed basis that the Confidential Source was under an obligation to treat information about the investigation into the Claimant as confidential.”
That was not acceptable to the claimant who responded with his own proposal which was:
“… the BBC accepts that the same rights of privacy and confidentiality can be treated as attaching to the information provided by Mr Johnson’s source as if it had come from within Operation Yewtree”.
That was not acceptable to the BBC. Thus the technical issue arrived before me.

 

THE JUDGE’S DECISION

The judgment contains a detailed consideration of the principles relating to disclosure of journalistic sources. Ultimately it was a question of balance.

    1. “As Mr Millar accepted, this has to be conducted on the assumption that the answer is Yes. If the answer were No it is hard to see (on the facts) what particular weight would be given on the side of non-disclosure.
    2. As against disclosure, and despite the fact that I have held that there is no real risk of the answer leading to the identification of the source, there is still the factor that the information is likely to be something that the source would be uncomfortable about having disclosed. That source would not necessarily know that the result of the journalist’s use of the information would be such as to point to Operation Yewtree as a potential source. It is within the category of any non-trivial information whose disclosure would lead to discomfort on the part of the source, and therefore some degree of chilling effect in some, if not many, cases.
    3. That is really the principal factor on the non-disclosure side of the case. It does not have anything like the great weight given to the non-disclosure of identity (a true “Goodwin” case). In the present circumstances its weight is diminished further by the fact that the spotlight has already been turned on to Operation Yewtree as a result of previous clear suggestions that the Operation was the source, as identified above. The allegations have even resulted in an inquiry. While a Yes answer would add something new to the case in the form of a more positive confirmation, it would not be introducing anything entirely new. What survives on this side of the line is more the question of principle (which is still important) rather than a practical effect.
    4. On the other side of the line, or balance, Mr Johnson’s knowledge of the source is of real significance, as identified above. Its full significance will not be revealed until trial, where the point will be argued out, but in my view it is clear that that significance is real. It is something that Sir Cliff may well need in order to be able to make his case, or rebut one of the BBC’s defences, or at least that he needs materially to improve his chances of success. One cannot go so far as to say that he cannot make his case without it but he has at this stage a strong case for saying that it relates to a very material point. He has a procedural right to the information under normal CPR principles. If his privacy rights have been invaded he has a good case for saying that he needs the information in order to vindicate those rights. Mr Millar submitted that one could not possibly say that Sir Cliff could not have a fair trial without an answer to the question, but that suggests that the dichotomy is between a fair trial and an unfair trial. That is not the right dichotomy, in my view. A fair trial, with the benefit of being able to argue that which can legitimately be argued, requires that the question be answered.
    5. I have to strike a balance between those interests, and to do so bearing in mind the serious effect which the courts should normally give to the rights of journalists (and the interests of their sources). What is sought is an answer to a question about Mr Johnson’s knowledge of a particular attribute of his source. Assuming a positive answer to the question, the risks of disclosure are still very low. The quality of the information, especially in the light of the fact that the idea of a Yewtree source has been in play more or less since the raid, and of the fact that an investigation has not revealed it, is, in my view, not of great significance in terms of journalistic confidence. The fact that a source might not be happy to have the information revealed does not, of itself, give the information great weight. All it does is ultimately give rise to the question which I have to decide. The ultimate weight of the interests of Mr Johnson and his source, arising from that consideration and Mr Johnson’s position as a journalist, is what I have to assess, and compare with the rights and interests of Sir Cliff. The rights and interests of Sir Cliff are in my view much more weighty. I find that the balance comes down clearly in favour of the question being answered.
    6. Last, I should deal with the question of whether Mr Millar’s proposal as to the basis on which the proceedings could be conducted means that the question need not be answered. I find that it does not have that effect. Its terms are not a proper substitute for an answer to the question because it does not match the question. The question is not just about confidentiality; it is about an understanding as to source as well. The BBC’s proposal does not address that and does not go far enough.
Conclusion
  1. It follows that the claimant’s application succeeds and the BBC must provide a proper answer to the question posed.”
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