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  1. Media Law
September 29, 2014

Times lawyer recklessly, rather than knowingly, misled High Court over Nightjack email hacking

By PA Medialawyer and Press Gazette

The High Court has ruled that a former lawyer for The Times recklessly rather than knowingly allowed the court to be misled in the Nightjack case.

In doing so it partially upheld the appeal of Alastair Brett against a finding of the Solicitors Disciplinary Tribunal which fined him £30,000 and suspended him for six months.

In June 2009 The Times successfully overturned a privacy injunction allowing it to name Richard Horton as police blogger Nightjack. It failed to tell the court that journalist Patrick Foster had hacked the Nightjack Yahoo email account in order to expose Horton.

Foster was given a caution last month. 

The Court – Lord Thomas and Mr Justice Wilkie – made its ruling on the basis that the SDT had made it clear that it was not being alleged, and that it was not finding, that Brett had acted dishonestly.

But the court rejected Brett's appeal against the SDT's decision that he had failed to act with integrity, on the grounds that he had acted recklessly, and against the £30,000 costs the tribunal had ordered him to pay.

Brett did not appeal separately against the SDT's order suspending him from practice for six months, a suspension which had had already served by the time the appeal was heard.

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Brett had argued that the issue at the heart of his appeal was whether journalist Foster was effectively his client when he sought advice about whether he might have a public interest defence after having identified Det Con Horton as author of the Nightjack blog by hacking into his email account.

Foster was the authorised representative of Times Newspapers, and therefore their discussion was covered by legal professional privilege as the issue was directly concerned with the newspaper's editorial activities, he had said.

The newspaper argued in court in 2009 that Horton had no reasonable expectation of privacy, and that he had been identified as a result of detective work by Foster, who had used publicly available material, including material on his own blog, to track him down.

Brett had told Foster that his story was "dead in the water" if it relied on an illegal hack. Later, the journalist emailed Brett saying he could "do the whole lot from publicly accessible information", and it was on that basis that Brett advised that the application for the injunction could be resisted.

Mr Justice Eady in the High Court, Horton's legal team and the Times' own counsel were not told that Foster had originally identified Horton through unauthorised access to his email account.

Mr Justice Wilkie, who gave the main judgment in the appeal, said he had, with the agreement of the parties, approached the case on the basis that it might well be that Foster's disclosure to Brett about the illegal hack was made on an occasion of confidentiality or legal professional privilege.

"I also accept Mr Brett's argument that it is long established, as a fundamental principle of our legal system, that there can be no requirement for a solicitor to disclose anything that is said to him on an occasion of legal professional privilege save where his client or the person who made the disclosure on such an occasion agrees to waive that privilege," he said.

The SDT had therefore erred where it had, or appeared to have, concluded that  Brett was under a duty to disclose what Foster had revealed to him on an occasion of confidence and/or legal professional privilege.

But a solicitor's duty not knowingly to mislead a court or not to take the risk that a court might be misled was not incompatible with that duty of confidentiality.

"Mr Brett was, like any other lawyer, always in a position to avoid misleading the court or to remove the risk of the court being misled without breaking that privilege," Justice Wilkie said.

Brett had a number of options – he could have asked Foster to waive privilege so that the true factual position could be presented to the court, he went on.

The misleading impression given by Foster's witness statement could also have been corrected to make clear that it was only intended to convey that Nightjack could have been identified through publicly available sources, as evidenced by the fact that Foster had undertaken such an exercise.

Had Foster refused to waive the privilege, Brett could have adopted the position that the newspaper was not prepared to say how he had discovered Nightjack's identity.

Brett could also have disclosed the true position to his counsel and asked them to make a statement which would similarly avoid giving a misleading impression to the court.

Finally, Brett, on behalf of Times Newspapers, could have abandoned defending the claim without disclosing the information Foster had given him.

In October 2012, The Times agreed to pay Horton £42,500 in damages and issued a public apology over the Nightjack litigation and the hacking of his emails.

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