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Lawyers for Sir Philip Green failed in bid to force Daily Telegraph to reveal its sources during High Court battle

Sir Philip Green’s lawyers attempted to force the Daily Telegraph to reveal its sources after the newspaper reported allegations of sexual and racial harassment against him, but were rejected by a High Court judge.

Mr Justice Warby handed down his decision on January 23, six days before yesterday’s announcement by the retail mogul and Arcadia that they were dropping their gagging order against the publication.

The decision now appears to be the final major stage in the legal battle which Sir Philip and his companies had launched to gag the Telegraph.

The Topshop boss has said the information passed to the paper was in breach of confidence and/or non-disclosure agreements made with employees who had settled grievances.

Sir Philip has said he “categorically” denies all allegations of unlawful sexual or racist behaviour.

Former Labour minister Lord Hain named Sir Philip in Parliament as the businessman behind an injunction against the Telegraph after it splashed on the claims against him without revealing his identity.

But an interim injunction Sir Philip obtained from the Court of Appeal as he sought to stop the Telegraph disclosing details of the allegations is still in place and will remain so until the court deals with his application.

The Daily Telegraph reported today that even though he had abandoned the case, Sir Philip had also warned that “further legal action” could yet be taken against anyone who had signed an NDA as part of their settlement if they now decided to speak out.

In his decision on 23 January, Mr Justice Warby rejected an application by Sir Philip and his companies for an order that the Telegraph should identify its sources as well as hand over notebooks and records of interviews.

Sir Philip and his companies went to the High Court to obtain a gagging injunction immediately after being alerted by email in July last year that the Telegraph intended to run a story containing allegations of misconduct which were the subject of NDAs.

Mr Justice Haddon-Cave refused to make an order, but his decision was then overruled by the Court of Appeal, which issued an interim injunction and directed that the issue to go to trial speedily.

Mr Justice Warby said a key feature of the Court of Appeal’s decision was that it was prepared to infer from the evidence that it was likely that “substantial and important” parts of the information the Telegraph wished to publish had been passed to it in breach of confidence, and that the newspaper was aware of the breach or the likelihood of such a breach.

The breach of duty which the Court of Appeal found Sir Philip and the companies were likely to establish was not just a breach of an equitable duty imposed by the law, but a direct contravention of a contractual restriction imposed by an NDA, committed by the contracting party – or a disclosure by another employee of information obtained in the course of their employment, in breach of that employee’s contractual duties to the employer, in the knowledge that the information was protected by an NDA between the employer and the other employee, Mr Justice Warby said.

Eventually, the Telegraph, which during the course of the legal battle had made some admissions in relation to its sources, expanded them to admit that:

  • The confidential information it had put to Sir Philip and his companies in its original email about the story was passed to it in breach of a duty of confidence to the claimants
  • When it received confidential information it was aware of the breach or the likelihood of a breach of confidence
  • It knew when it received the confidential information that it was covered by NDAs to which the subjects of the information were party

Mr Justice Warby said that he had concluded that in the light of the Telegraph’s concessions it had not been demonstrated that disclosure of its sources was not necessary in the interests of justice.

“The claimants have not shown that at this stage there is a pressing need for source disclosure which outweighs the private and public interests in upholding the statutory privilege,” the judge said.

“Given the concessions now made, the prospect that the claimants might fail in their claim because the court could not be satisfied that the source, and hence the defendant, came under a duty of equivalent weight to that undertaken by a signatory to an NDA seems to me remote.”

Picture: Ian West/PA Wire

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