EASTWEEK PUBLISHER LTD. v. JOHN SHAM

Headnote

Interaction of Norwich Pharmacal Principle and the Newspaper Rule

The plaintiff sued a magazine publisher for libel. He then successfully applied for a Norwich Pharmacal order seeking disclosure of the identities of the author and editors of the article concerned. The application was resisted on grounds including the newspaper rule.

Held, allowing the appeal, that the newspaper rule is of over one hundred years' standing. Whether a rule of practice or of law, it is one to which effect must be given where there are no special circumstances. A defendant at the pre-trial stage of an action for libel published in a newspaper should not be forced to disclose his source of information. The rule applies not only to newspapers but to the news media. The overriding jurisdiction for the rule is the public interest in the free flow of information. Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980]1 NZLR 163 adopted; British Steel Corporation v Granada Television Limited [1981] AC 1096 and other authorities considered.

IN THE COURT OF APPEAL

1994, No. 95
(Civil)

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J U D G M E N T

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Nazareth, J.A.:

1. This is the judgment of the Court.

2. Having heard the submissions, we allowed the appeal and set aside the order appealed; we now give our reasons.

Introduction

3. This appeal concerned the application, it is said, for the first time in the courts of Hong Kong of the so-called "newspaper rule". Moreover, it arose in the context of an application for a Norwich Pharmacal order, which came before the court in the following way.

4. The plaintiff is a well-known Hong Kong artiste. He was the subject of an article in the 54th issue of the "Eastweek Magazine" published by the defendant/ appellant in November 1993. The plaintiff claimed that the article is defamatory; the defendant did not dispute that claim for the purposes of the appeal. The identity of the writers and editors was not known to the plaintiff. The plaintiff, it is said, intended to take proceedings for libel not only against the defendant but also the author and editors responsible for the article. Through his solicitors, he requested the defendant to disclose the full names and addresses of the authors and editors. There was no response to the request. Accordingly, the plaintiff instituted the present proceedings, seeking a Norwich Pharmacal order to secure those details. The matter came before Patrick Chan J, and by his judgment given on 13th May 1994 he granted the plaintiff's application and ordered disclosure. From that order, the defendant appealed.

The judgment

5. In his careful judgment which diligently addressed numerous authorities cited to him, the judge began by examining the nature of the Norwich Pharmacal principle, which was relied upon by the plaintiff, by reference to Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133; Orr v Diaper (1876)4 ChD 92 and Lonrho Plc v Fayed (No.2) [1992]1 WLR 1. He pointed to three aspects of the principle which he regarded as material to the matter before him. He stated these in the following way:

(i) The duty to make disclosure

6. The court's jurisdiction to order disclosure is based on a duty on the part of the person against whom the disclosure order is sought to assist another who has been wronged. That duty arises if he is in some way involved in the wrong, a fortiori if a wrong-doer himself. Having stated that, the judge noted that it had been conceded for the purpose of the application that the article in question was prima facie libellous. He was of the view that since a party who gets mixed up or involved in a tort is under a duty to disclose the identity of the wrong-doer, a party who has actually facilitated the tort and is also personally liable, is all the more under a similar if not a greater duty to make such disclosure. He therefore had no doubt that the defendant was under such a duty.

(ii) The necessity to make disclosure

7. This jurisdiction, the judge said, being a remedy in equity, is to be exercised only if it is just and necessary to do so. If the person seeking the disclosure is unable or finds it difficult to take action against wrong-doers without the information which is being sought, the court may come to his assistance since to deprive him of such information would amount to a denial of justice.

8. This aspect of the Norwich Pharmacal principle, and the manner in which the judge dealt with it, is the subject of the appellant's second ground of appeal which we shall address later.

(iii) Public interest

9. The judge referred to the third aspect in the following way. When exercising its jurisdiction, the court would take into consideration whether it is in the public interest to order disclosure. In considering this, the judge held that it was necessary for him to balance the interests of justice with the particular public interest and he accordingly proceeded to examine the newspaper rule in the context of the Norwich Pharmacal principle.

The newspaper rule

10. Chan J first of all disposed of the contention on behalf of the plaintiff that Eastweek Magazine was not a newspaper and hence could not benefit by the newspaper rule. He rightly rejected it and the appellant does not seek to appeal against that decision.

11. Chan J then introduced the nature of the rule by setting out short passages from the following three authoritative works:

(i) Halsbury's Laws of England, 4th ed., vol.28, para.24 at p.104:

"In an action against a newspaper or a trade periodical, where responsibility for publication of the alleged libel is admitted, the practice, in the absence of any special reason to the contrary, is to refuse to compel the disclosure of the name of the person who wrote the alleged libel or who supplied the information on which it was based;"

Chan J then observed that the authority relied on for this proposition appears to be the case of Hope v Brash [1897]2 QB 188.

(ii) Gatley on Libel and Slander, 8th ed. para. 1008:

"... if the libel is anonymous or pseudonymous and the plaintiff has no evidence as to the author's identity, he will have to content himself with suing the proprietor, editor, printer and publisher of the paper. Should he subsequently discover the name of the author he can apply by summons for leave to add him as a co-defendant."

Chan J observed that no authority was cited to support the statement. However it has to be said that the statement is concerned more with the joinder of parties rather than a statement of the newspaper rule, which is pointed to by the footnote to para. 1008 and is framed in the following way:

"... it has long been a 'settled practice' that discovery whether of documents or by interrogatories, will not be ordered against a newspaper so as to force it to disclose its source of information before the trial, even though privilege or fair comment was pleaded and malice was in issue. Although it has been said such disclosure might be ordered in special circumstances, there is no case in which the courts have done so." (Para.1216)

(iii) Supreme Court Practice 1995, Vol.1, para.26/1/11, at p.494:

"In actions against newspaper proprietors where publication is admitted interrogatories as to the name of the person who supplied the information on which the alleged libel is founded will not, as a rule, be allowed (Plymouth Mutual Society v Traders' Association [1906]1 KB 403, Lyle-Samuel v Odhams Ltd [1920]1 KB 135, CA; South Suburban Co-operative Society v Orum [1937]2 KB 690; Lawson v Odhams Press [1949]1 KB 129, CA) especially when there is a reason to suppose that they are not put bona fide for the purposes of the action (Edmondson v Birch [1905]2 KB 523, CA) but they may be allowed under special circumstances (ibid.; White v Credit Reform Association [1905]1 KB 653, CA). As to what constitutes such special circumstances, see Lyle-Samuel v Odhams Ltd. above. In such actions the plaintiff will not be allowed to interrogate as to the name of the writer of the alleged libel (Gibson v Evans (1889)23 QBD 384; Hennessy v Wright (1888)24 QBD 445n) unless the identity of the writer is material to some issue in the action (ibid.; Marriott v Chamberlain (1886)17 QBD 154; cf. Elkington v London Association for Protection of Trade (1922)27 TLR 329)".

The judge then proceeded to examine some of the authorities cited as support for the rule of practice. He began with Gibson v Evans [1889]23 QBD 384, which it has to be said, does not refer to the newspaper rule as such, and follows Hennessy v Wright in which disclosure was refused because the information sought was not material to the case. That however does not militate against the newspaper rule as a ruler of practice nor indeed against a practice to refuse such disclosure.

12. As to Hope v Brash, Chan J appeared to think significant the reference by A.L. Smith LJ to the Rules of the Supreme Court corresponding to Hong Kong RSC O24 and O26 in which the criteria as he put it would be, apart from relevance, whether the discovery is necessary either for disposing fairly of the cause or matter or for saving costs. Again, in our view, the discretion that the court was afforded, was clearly exercised by A.L. Smith LJ on what he termed as " the ordinary rule of practice, as laid down by Lindley LJ in Hennessy v Wright that in a case which as this, an order will not be made by which the plaintiff may obtain discovery of the name of the person who originally wrote the libel published in a newspaper." Likewise, that Rigby LJ appeared to base his decision, as noted by the judge, on the fact that the document of which disclosure was sought would not contain new material, does not militate against the existence of the newspaper rule which was expressly acknowledged by A.L. Smith LJ.

13. In Plymouth Mutual Co-operative and Industrial Society Limited v Traders ' Publishing Association Limited [1906]1 KB 403 at p.415 Vaughan Williams LJ recognised the existence of the general rule of practice in the clearest terms and then posed the question whether there were "any special circumstances in this case which would justify a departure from the general rule of practice as to not compelling the disclosure of the names of the persons who supplied the information on which the alleged libel was based in cases of this kind, where the proprietors of a newspaper or other periodical publications set up a defence such as is here pleaded". Stirling LJ likewise recognised the rule, as Chan J noted, and as is clear from the passage quoted from his judgment. In the result, the reliance by Fletcher Moulton LJ upon relevance and materiality, to which Chan J attaches some significance, does not undermine the recognition of and reliance upon the newspaper rule.

14. Lyle-Samuel v Odhams Limited [1920]1 KB 135, South Suburban Co- operative Society Limited VOrum [1937]2 KB 690 and Lawson & Harrison v Odhams Press Limited [1948]1 KB 129 all, as Chan J expressly recognised, confirmed the rule of practice. Indeed, it seems to us clear enough that Chan J recognised the rule of practice although he plainly did not like it.

15. It is then in the light of the foregoing that the following observations he then made have to be considered. They were as follows:

"This rule in favour of newspapers had since been loosely described as the 'newspaper rule'. It can be seen that all these cases were libel actions against the proprietors or publishers of newspapers where publication of the offending article was admitted and in most of them, the identity of the author or informant was either not relevant, or not material to the issues before the court, or was oppressive or not for the purpose of the case. Such discovery or interrogatory would also not be necessary for disposing fairly of the issue or matter before the court or for saving costs under the previous Order XXXI and the present O.24 and O.26. These decisions can therefore be explained on these other grounds. The courts would of course be correct when they refused such kind of discovery or interrogatory."

The fact that some of the judges in those cases preferred to rely on grounds other than the newspaper rule does not undermine the overwhelming and very clear authority for the existence and nature of the rule in the authorities addressed.

16. As indicated, Chan J then referred to Norwich Pharmacal and to his view that different considerations and conditions applied to orders made upon the Norwich Pharmacal principle. He turned then to consider British Steel Corporation v Granada Television Limited [1981] AC 1096 which appears to be the only authority in which the newspaper rule has been addressed upon an application for a Norwich Pharmacal order.

17. It is readily apparent from his judgment that Chan J relied primarily upon British Steel in concluding that "rule of practice in favour of newspapers should not affect the application of the Norwich Pharmacal principle in cases falling within it". He reached his conclusion in the following passages at p.17 to 20 of his judgment:

It is in light of these earlier authorities that one should look at another House of Lord decision in British Steel Corporation v. Granada Television Limited [1981] AC 1096. In that case, the Norwich Pharmacal principle was applied and Lord Fraser and Lord Wilberforce had commented on this so-called 'newspaper rule'.

According to the British Steel Corporation case, the general principle is that if the information is relevant and is admissible evidence, it ought to be disclosed even if it is confidential unless there are good reasons, such as public interest, for not doing so. Lord Fraser had succinctly expressed the relevant principle at p.1196:-

'Consideration of the legal position starts from the proposition that a witness is not as a general rule entitled to withhold relevant admissible evidence in court, merely on the ground that it will disclose information which is confidential. The reason is that the public interest in the administration of justice requires such information to be disclosed, and is deemed to prevail over public interest in preserving confidentiality. The courts will try to avoid forcing witnesses to commit breaches of confidentiality, and will not do so if the information can be obtained from another source or if it is not essential. But if it is essential, or at least if it "will serve a useful purpose in relation to the proceedings in hand" - see Attorney-General v. Mulholland; Attorney General v. Foster [1963]2 QB 477, 492 per Donovan L.J. - disclosure will be ordered. The law to that effect is well established. It is subject to exception in very few cases where, in the public interest, immunity from disclosure has been recognized by law on grounds which were recently considered in this House in D. v. National Society for the Protection of Cruelty to Children [1978] AC 171. These exceptions include disclosure of information affecting the security of the state and information as to the identity of police informers and of informers to the N.S.P.C. but they do not include information imparted in confidence by patients to their doctors or penitents to their priests or informers to journalists and the news media: see Attorney General v. Clough [1963]1 QB 773; Attorney General v. Mulholland [1963]2 QB 477; and HM Advocate v. Sairs, [1975] JC 64, 70.'

18. He referred to the Norwich Pharmacal principle and agreed with what Lord Reid said in that case. He also cast doubts on the so-called "newspaper rule" as an exception to the general rule. He dealt with it as follows:-

'I would make the following comments on the Newspaper Rule.

1. The rule applied only to libel actions. ......

2. The rule applied only at the interlocutory stage of discovery. The reasons for the rule are obscure as judges have often pointed out... It has sometimes been held that the name of the informant was irrelevant ... but that reason cannot apply in a case where the defendant pleads privilege ... I agree with Lord Hailsham of St. Marylebone that the rule must have been based on public policy ... The reasons of public policy, and the limits of the rule, were explained by Dixon J. in the Australian case of Mcguinness v. Attorney General for Victoria, 63 CLR 73, 104, when he said:-

"But although old authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action from the necessity of deposing to the source of the information contained in his publication or to statements made in confidence to him in the exercise of his calling, yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters.

By a long line of cases, the practice is recognized of refusing to compel such a defendant to disclose the name of the writer of an article complained of as a libel or of the sources of information he has relied upon. The foundation of the rule is that the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of matters contained in their journals, and the desirability of protecting those who contributed to their columns from the consequences of unnecessary disclosure of their identity... It is not a rule of evidence but a practice of refusing in an action of libel against the publisher, etc. of a newspaper to compel discovery of the name of his informants. It 'rests not on the principle of privilege but on the limitations of discovery'..."

3. Since 1949 the rules of court have applied the same rule to all defendants - see now R.S.C., O.82, r.6 - so that there is no longer a separate newspaper rule on discovery which could be relied on to justify giving special treatment to the press as a defence to a Norwich Pharmacal type of order.

4. The limits of the rule are uncertain. It applied to a newspaper and to a journalist in the full time employment of a newspaper: Lawson v. Odhams Press Limited [1949]1 KB 129. It did not apply to the writer of a libellous letter to a newspaper: see South Suburban Co-operative Society Limited v. Orum [1937]2 KB 690. What is not clear is whether it applied to a freelance journalist or to the writer of a pamphlet or broadsheet or of the many other kinds of publication which impart useful information to the public.

I would be reluctant to support a rule whose boundaries are so ill- defined.

5. The rule has repeatedly been said to be subject to possible exceptions - see for example Hope v. Brash [1897]2 QB 188, 192, per A.L. Smith L.J. - although there seems to be no reported case in England where the exception has been held to apply."'

Chan J then said this:

"I would respectfully agree with these comments : this rule of practice was based on obscure reasons, possibly on public policy; its limits are uncertain; it applies only to interlocutory applications and it is itself subject to possible exceptions. I should think that it is of doubtful application in the light of the Norwich Pharmacal case and the British Steel case. In my opinion, this rule of practice in favour of newspapers should not affect the application of the Norwich Pharmacal principle in cases falling within it."

19. In addressing the foregoing approach it is necessary to recall that the "earlier authorities" referred to, do in fact point to the existence of the newspaper rule, be that designation apposite or otherwise, with sufficient clarity moreover to it having existed for over one hundred years.

20. Returning then to the passages quoted by Chan J from Lord Fraser's judgment, whatever Lord Fraser's reservations about aspects of the rule, it is plain that he recognised its existence. Moreover, immediately before the second of the two passages quoted by Chan J. he said this:

"The claim of the press to be in a special position is rested on two grounds. The first is the so- called newspaper rule, the effect of which was described thus by Bankes LJ in Lyle-Samuel v Odhams Ltd [1920]1 KB 135, 143:

'All I say is that this is an action of libel against the publishers of a newspaper, that it is well established that in the case of newspapers there is an exception to the rule requiring a defendant to disclose the source of his information where he pleads either privilege or fair comment.' "

And significantly following upon the second passage referred to, Lord Fraser added:

"Indeed in the Broadcasting Corporation of New Zealand case [1980]1 NZLR 163, Woodhouse J thought that the rule should now be regarded as absolute."

(That is a case to which we shall return).

21. Lord Fraser concluded that for the reasons he had given he did "not regard the newspaper rule as providing a good reason why a Norwich Pharmacal order should not be made against the press in a case" such as that before him.

22. Turning then to the other speeches in the British Steel case, Lord Wilberforce, when he came to address the newspaper rule, stated that he was entirely content to accept Lord Fraser's argument and expressed agreement with Lord Fraser's conclusion that the rule was of no help to the court in that case. The point he made was that unlike an action for libel or slander in which a plaintiff by proceeding against a defaming newspaper was likely to get all the relief he needed and therefore did not need to sue the source, in a breach of confidence case like British Steel that was not necessarily so. That his expressed agreement with Lord Fraser extended to recognition of the existence of the newspaper rule seems to us also to be apparent from the following passage in his speech at p. 1174 F-H:

"... it remains true that there may be an element of public interest in protecting the revelation of the source. This appears from the speeches in the Norwich Pharmacal case [1974] AC 133 (see per Lord Reid at p.175, Lord Morris of Borthy-y-Gest at p.182, Viscount Dilhorne at p.188 and Lord Cross of Chelsea at p.199) and from the judgments of the New Zealand Court of Appeal on the 'newspaper rule': Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163. The court ought not to compel confidence bona fide given to be breached unless necessary in the interests of justice: see Science Research Council v Nasse [1980] AC 1028. There is a public interest in the free flow of information, the strength of which will vary from case to case. In some cases it may be very weak; in others it may be very strong. The court must take this into account."

Significantly Lord Wilberforce did not express any dissent from the very strong endorsement of the newspaper rule in the Broadcasting Corporation of New Zealand case, which was specifically relied upon by Sir Patrick Neil QC for the appellant.

23. Having reviewed the authorities on the newspaper rule, Viscount Dilhorne said this at p.1181F:

"In the light of these authorities the legal position can, I think, be summarised as follows. Save in respect of the administration of interrogatories in libel and slander actions, newspapers have never been held to enjoy the privilege of not being compellable to disclose the sources of their information."

He went on to say that he could find no satisfactory basis for the distinction between discovery before and during trial.

24. Lord Salmon provided the strongest endorsement of the newspaper rule proclaiming its acceptance for over one hundred years, and that if the immunity did not exist, the press' sources of information would dry up and the public would be deprived of being informed of many matters of great public importance. At p.1188 F- H he referred to the Broadcasting Corporation of New Zealand case stating:

"I agree with Woodhouse J that 'this newspaper rule' is not confined to libel or any other form of action.

Woodhouse J and each of the other two judges in the New Zealand Court of Appeal then went on to disagree with the decision of the Court of Appeal in the present case. I agree with them."

The Court of Appeal's decision referred to was understandably seen by the New Zealand Court as unacceptably curtailing the newspaper rule. Returning to British Steel, Lord Russell agreed with Lord Wilberforce. At 1203 G he said this:

"... in general terms I recognise a public interest in the free flow of information, and that there may be some obstruction to that flow if a source is not entitled in law to rely upon an undertaking by a journalist to treat the identity of the source as confidential to him. But where, as here, the undertaking results in or would perpetuate the gross wrong and injustice done to B.S.C, to accede to such contention would indeed encourage the doing of injustice. I cannot accept that the public interest in the prevention of injustice is here negatived by any public interest in a free flow of information."

25. It is fair to say therefore in general terms that their Lordships recognised the continued existence of the newspaper rule, but treated the circumstances before them as an exception or as constituting special circumstances.

26. Returning to the judgment of Chan J, having set out the two passages from Lord Fraser's speech, he summed up his view of the British Steel case in the way already indicated, but which bears repetition:

"I would respectfully agree with these comments : this rule of practice was based on obscure reasons, possibly on public policy; its limits are uncertain; it applies only to interlocutory applications and it is itself subject to possible exceptions. I should think that it is of doubtful application in the light of the Norwich Pharmacal case and the British Steel case. In my opinion, this rule of practice in favour of newspapers should not affect the application of the Norwich Pharmacal principle in cases falling within it."

Turning then to the New Zealand Broadcasting case, we would adopt the analyses of the previous authorities and reasons of the three judges. We derive therefrom the following as a statement of law applicable to the circumstances in this appeal. The newspaper rule is a rule of over one hundred years standing. A defendant at the pre- trial stage of an action for libel published in a newspaper should not be forced to disclose his source of information. It applies not only to newspapers but to the news media. The overriding jurisdiction for the rule is the public interest in the free flow of information.

27. It is now clear not only from the New Zealand Broadcasting case and the authorities there relied upon, but also the speeches in British Steel already touched upon of Lord Wilberforce (p.1154 F-H), Lord Salmon (p.1193 E, 1195D) and Lord Russell (p.1203 F, G) that the rule is founded upon the public interest in the free flow of information. Lord Fraser appeared to accept that it was founded upon reasons of public policy resting not on a principle of privilege but on limitations of discovery, (1197D-1198E) and Viscount Dilhorne did not think it necessary to address its basis (p.1179 C-D). While, therefore Chan J's comment that the rule "was based on obscure reasons, possibly on public policy" is understandable, given the degree of obscurity and disagreement in the past, it must now be accepted that the basis is the public interest in the free flow of information.

28. Chan J concluded his judgment in the following way:

"Conclusion

It is in the public interest that the administration of justice should be upheld. Justice requires that all wrongdoers should be brought before the court except in very special circumstances. The court should be slow in making exceptions to this general rule if to do so would create an injustice. It is, of course, also in the public interest to uphold the principle of confidentiality which is so greatly valued by a free press. However, in my view, it would be of greater importance to our system of justice that a person who feels that he has been aggrieved by a malicious tort should be able to take legal proceedings against all and not just one of the wrongdoers. It would be a great pity if such a right is to be curtailed by the principle of confidentiality. It would, in my view, be an abuse of the freedom of the press if it is to be used to protect or conceal the identity of wrongdoers who have little respect for such freedom by writing, editing or publishing libels without facing their consequences.

In the present case, it was admitted that there is a prima facie libel. The defendant as the publisher is clearly under a duty to assist the plaintiff in taking the other wrongdoers to court. The plaintiff needs the identity of the author and editors who are responsible for it. Even if the "newspaper rule" can be fully supported, I do not think it can apply to a situation like the present case. There is really no question of confidentiality. The author and the editors involved were either employees of the defendant or had been commissioned to write and approve such article. I am firmly of the opinion that it is in the public interest to order such disclosure."

Whether the rule was one of practice or of law matters little, since on the authorities it is one to which effect must be given where there are no special circumstances. What those circumstances might be is not clear. But whatever they could be, there is no suggestion of any here. In the New Zealand Broadcasting case, it was held that this rule is one to be applied by the courts except where circumstances are established warranting a departure from it. On the other hand, in British Steel, which it is worth reminding oneself was a breach of confidence case, Lord Wilberforce (at p. 1169 A, D) envisaged a balancing exercise in which the court had to decide whether preserving the confidence was outweighed by other interests to which the law attached importance, balancing the public interest and considerations on either side; Viscount Dilhorne seemed also to have proceeded on the basis of a similar exercise (at p.1183, 1184); the answer seemed to Lord Fraser to involve weighing up the public interest for and against publication and likewise Lord Russell appeared to envisage a balancing exercise (p.1103 G). Lord Salmon appeared to have adopted the New Zealand Broadcasting case approach.

29. Chan J balanced the public interest in upholding the administration of justice, the bringing of wrong-doers before the court, and the prevention of injustice on the one hand, against the public interest in "upholding the principle of confidentiality which is so greatly valued by a free press" on the other, coming down firmly in favour of the former.

30. However, it was not the public interest in confidentiality that he should have balanced but that in the free flow of information. Whereas it may well be necessary to discover the source of a leak of confidential information to secure justice, as in British Steel, that is not so in a libel action such as here. The remedy the plaintiff is presumably seeking (and all he could obtain) is damages which the defendant appears to be in the best position to provide. Action against the author or editors would not provide any further justice, nor has it been suggested or does it seem to be the case that the plaintiff is entitled to seek for whatever private purpose of his own, the identify of the person who was the source of the information. If the plaintiff wishes to pursue some such personal desire, he may be able to do so at trial or by means of a separate action. There seems to us to be no public interest in letting him to do so at this stage and certainly none that even begins to weigh against now the well- established and well-recognised public interest in the free flow of information.

31. Moreover, quite apart from the newspaper rule, there is considerable dicta against the provision of such information in response to interrogatories and in the context of discovery. Some of these are to be found in the authorities cited in this appeal in relation to the newspaper rule. Thus provision of such information was disapproved of as being not material to enable the plaintiff to maintain his own case or to destroy that of his adversary: Hennessy v Wright; such matters were not regarded as relevant to the action against the defendant, they were matters outside the action Watt v David Syme & Co [1914] VLR 639; the object of getting the name of the informant of a newspaper was to sue the informant, which was plainly improper, per Buckley LJ in Adam v Fisher (1914)30 TLR 288; also see Attorney General v Clough [1963]1 QB 773 at 789 where Lord Parker CJ also referred to such matters being treated as oppressive. While the explanation for the newspaper rule suggested by Lord Denning MR in Attorney General v Mulholland [1963]2 QB 477 at p.490 might not accord with those now generally accepted, his observations there are of assistance in the present context:

"The person who is defamed has his remedy against the newspaper and that is enough, without letting him delve round to see who else he can sue."

32. Finally, although the Bill of Rights was mentioned, no submissions were made by reference to its provisions, leading to the conclusion that the rule does not breach any of those provisions. While reserving the matter for argument in the future, we would say that we are not disposed to disagree.

33. We are satisfied therefore that Chan J materially misdirected himself in the over-critical view he took of the newspaper rule and that this vitiated his conclusion and the exercise of his discretion. The appeal had therefore to be allowed and this Court exercising the discretion could, in our judgment, properly only have disallowed the plaintiff's application for a Norwich Pharmacal order. For those reasons, the appeal had to be allowed and the order of the court set aside.

34. As to costs, we make an order nisi setting aside the order on costs below and in lieu, ordering that the defendant has its costs of the plaintiff's summons and of this appeal.