Law
Alastair Brett v The Solicitors Regulation Authority [2014] EWHC 2974
In 2009, Patrick Foster, who was a media reporter of The Times, faced charges involving breach of code of conduct for violating the provisions of the Computer Misuse Act 1990. Foster hacked the personal email account of detective Richard Horton, who was a police blogger and used the code name “Nightjack” in his blog site. Foster was able to find out the true identity of “Nightjack” after hacking Horton’s yahoo account. As a result, Horton filed a case for injunction against The Times for and breaking into his email account without his consent in order to reveal his true identity. However, Horton was unsuccessful in his attempt to obtain injunction from the court after his request was denied. On the other hand, The Times misled the Court by claiming that they used legal methods to uncover the real identity of Horton.
Due to the bad faith on the part of the newspaper company for misleading the court and its failure to disclose the act of Foster who hacked the account of Horton to find out his identity, The Times was made to pay damages to Horton in the amount of £42,500. As part of its defence, James Harding, who was the editor of the newspaper during that time, claimed that he had no knowledge of any court action that was filed by Horton and it is for this reason that he allowed the story of Nighthawk’s identity revelation to be published in The Times.
During the Leveson enquiry, Harding denied receiving an email which contains information about the hacking of the personal email account of Horton. It was also revealed during the inquiry that Foster sought the legal advice of Alaistair Brett, who was then the legal manager of the newspaper. Brett advised Foster that his story must be able pass the test of proper journalistic endeavour by avoiding the use of illegal hacking methods. Brett was also advised by a Barrister that there is a possibility that a crime had been committed under the Data Protection Act since what was involved was a matter of public interest. Brett appealed the court’s decision which ruled in favour of the breach and brought the same before the Solicitors Disciplinary Tribunal (SLDT). Brett claimed that SDLT failed to uphold his right to the legal professional privilege and right against self-incrimination.
Brett maintained his position that the disclosures made by Fosters to him forms part of his legal professional privilege that is protected under the law. However, the High Court, through Justice Wilkie did not find merit in Brett’s contentions and ruled that the main issue in such case involved the fact that the court was misled that Foster used legal methods to find-put the true identity of Horton. Further, the High Court ruled that the fact that Brett allowed the court to be misled is a serious offence. In fact, the court also stated that Brett’s reckless action of allowing the court to be misled made him liable for violation of Rule 11.01 when he acted in a reckless manner.
