The High Court recently refused an application for a Norwich Pharmacal order to reveal the names of anonymous signatories to a defamatory letter (Cockburn v Rogers  EWHC 1961 (QB)). The court did so on the basis that it would be a disproportionate interference with the signatories' rights of freedom of expression under Article 10 of the European Convention on Human Rights and could discourage anonymous whistleblowing in the public interest.
This article will also be published in the forthcoming November edition of the Entertainment Law Review.
Mr Justice Johnson's judgment rightly prioritises the anonymous signatories' rights to freedom of speech over the applicants' tenuous claim that they could not achieve vindication and could not prevent further publication of the defamatory letter unless the anonymous signatories could be named as defendants in issued proceedings.
Judgments in cases such as these turn entirely on their facts of course. The court might, for example, have reached the opposite conclusion had the court not been reassured by the respondent that the likelihood of republication was low. The judgment should, however, give confidence to those who might wish to raise concerns in the public interest anonymously in future that the courts will not expose them without first carefully considering whether it is necessary and proportionate to do so.
The applicants were founders of the Martin James Foundation which, as part of the Martin James Network, promoted foster homes where children may otherwise be left to institutional care. The respondent, Justin Rogers, was the Foundation's former CEO.
During his time as CEO of the Foundation, the respondent became concerned about workplace culture, financial governance, and payments that were being made between companies within the Network to the Foundation in respect of management fees and for the use of intellectual property. The respondent considered that those issues jeopardised the charitable objectives of the Foundation, decided that his position was untenable and resigned.
After resigning, the respondent drafted a letter – the subject of this dispute – which set out his concerns. Among other allegations, the letter stated that the culture of the Foundation was oppressive, that employees felt bullied, and that the financial arrangements between the Foundation and other companies and charities in the Network were "at best morally questionable and at worst… could be fraudulent, a form of money laundering, and a way to extract funds from the non-profit organisations".
The letter stated that it had been written in compliance with the Network's whistleblowing policy and the respondent explained in evidence that he had sought advice on the content of the letter from Protect, a whistleblowing charity that was listed in the Network's whistleblowing policy.
The letter was signed by the respondent, another named individual, and "three anonymous ex-employees". The identities of those ex-employees were known to the respondent, but not to the applicants. The letter, addressed to “Independent trustees and all chairs”, was then sent to the independent trustees of the Foundation and to the CEOs of other organisations in the Network.
The applicants' position was that the CEOs of other organisations in the Network were external to the Foundation and that the circulation of the letter amounted to the communication of highly defamatory remarks to third parties.
The applicants sought an order that the respondent disclose the identities of the three anonymous ex-employees who had signed the letter so, the applicants said, they could bring defamation proceedings against all the signatories to the letter.
As is well known, it was established in Norwich Pharmacal v Commissioners of Customs & Excise  UKHL 6 that a respondent who is not party to a claim can be compelled to disclose information enabling an applicant to bring a claim against a third party if the following tests are met:
"1. There is a good arguable case that the applicant has a right of action in respect of wrongdoing by a third party;
2. The respondent was mixed up in the wrongdoing;
3. It is likely that the respondent is able to provide the information that is necessary for the third party to be pursued; and
4. It is just and proportionate to make an order."
As to whether a Norwich Pharmacal order is just and proportionate, the principles which should be used to guide the court were identified by Lord Kerr in The Rugby Football Union v Consolidated Information Services Ltd  UKSC 55. Johnson J summarised those principles in the current case as follows:
"1. That there is a need for flexibility and discretion in considering whether the remedy should be granted;
2. The need to order disclosure will arise only if it is a ‘necessary and proportionate response’ in all the circumstances;
3. The test of necessity does not require the remedy to be one of last resort;
4. The essential purpose of the remedy is to do justice; and
5. The court must undertake a careful and fair weighing of all relevant factors."
The factors that Lord Kerr found to be relevant, as summarised by Mr Justice Johnson, include:
"1. The strength of the possible cause of action contemplated by the applicant for the order;
2. The strong public interest in allowing an applicant to vindicate his legal rights;
3. Whether the making of the order will deter similar wrongdoing in the future;
4. Whether the information could be obtained from another source;
5. Whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing;
6. Whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm;
7. The degree of confidentiality of the information that is sought;
8. The privacy rights of the individuals whose identities are sought, including their rights under Art.8 of the European Convention on Human Rights and s.6 of the Human Rights Act 1998;
9. The rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed; and
10. The impact of the making of an order on rights to freedom of expression, including such rights under Art.10 of the European Convention on Human Rights and s.6 of the 1998 Act."
The court considered first whether the applicants had a good arguable case that they had a right of action in respect of wrongdoing by the three ex-employees. The court found that the applicants did. It was not disputed that the letter bore a defamatory meaning and the court was satisfied that the letter was likely to cause the applicants serious harm. The court held that the defences that the respondent and three ex-employees were likely to raise at trial were neither bound to fail, nor bound to succeed.
It was uncontroversial, and the judge had no difficulty in finding, that both the second and third criteria for a Norwich Pharmacal order were fulfilled. The respondent accepted that he was "mixed up in the wrongdoing", having been the instigator and author of the letter, and that he knew the names of the three ex-employees who had signed the letter and could disclose those names if ordered to do so.
The court then considered whether it was just and proportionate to make an order, considering the principles as identified in Rugby Football Union v Consolidated Information Services.
The judge first decided that the merits of the claim were not so strong in favour of either party as to be a deciding factor.
The judge went on to find that while there was a public interest in allowing the applicants to vindicate their rights, it had always been possible for the applicants to bring a claim against the unknown signatories by describing them as persons unknown. As a result, the court found that this factor did not strongly militate in favour of Norwich Pharmacal relief.
The court also found that a Norwich Pharmacal order was not necessary to deter future defamatory attacks on the applicants since there was no real risk of republication of the letter.
The judge was satisfied that the respondent knew that his actions arguably amounted to a defamation of the applicants. The judge considered that this was a factor in favour of granting relief but that it did not carry significant weight.
While there was no concern that the granting of the order would impact on third-party privacy rights since the anonymous signatories were known to have been former employees of the Foundation, it was conceded by the applicants that the three signatories' Article 10 rights of freedom of expression were engaged.
The judge pointed out that an order that the respondent identify the three ex-employees would "act as a chilling influence on others who might wish to make anonymous allegations of wrongdoing, including allegations which are well-founded". As a result, the court would not make such a Norwich Pharmacal order unless it was "necessary for and proportionate to the legitimate aim of protecting the applicants’ rights and to safeguard their reputations".
The court found that the same factors as weighed against Norwich Pharmacal relief generally also weighed against an infringement of the three ex-employees' Article 10 rights, namely that:
(i) there had been no re-publication of the content of the letter, nor was there any threat of re-publication
(ii) the letter had been published 11 months prior and the applicants were yet to issue proceedings;
(iii) the applicants could at any time bring or have brought proceedings against the respondent, who had admitted being primarily responsible for the letter;
(iv) the applicants could vindicate their reputations without disclosure of the anonymous signatories' names by bringing proceedings against persons unknown;
(v) the applicants could seek disclosure of the three signatories' names if substantive proceedings were issued, when the issues in dispute would be properly known;
(vi) the three signatories were exercising their right to freedom of expression and their allegations had been focussed, rather than gratuitous, and in the context where there is a public interest in allowing concerns to be expressed.
The judge concluded that an order requiring the respondent to disclose the three ex-employees' names would "not strike a fair balance between the important rights of the applicants and the rights of the three anonymous signatories" and would be a disproportionate interference with their rights of freedom of expression. The application was dismissed.