Arab Satellite Communications Organisation v Al Faqih & Anor

There are before me an appeal and a cross-appeal from an order of Master Eyre dated 4^th July 2008, together with an appeal on a consequential order for costs made by him on 22^nd August 2008. In order to explain the order and the issues raised by the appeal, it is necessary to set out the background and the procedural history in a little detail.

The claimant is an inter-governmental organisation based in Saudi Arabia and owned by the member states of the Arab League. The largest shareholder is the Kingdom of Saudi Arabia, which holds some 36%. It operates four communication satellites broadcasting principally to the Middle East and North Africa. The first defendant is a prominent dissident and critic of the Saudi government, based in this country. The second defendant, the Movement for Islamic Reform in Arabia ("MIRA"), is an unincorporated association established and directed by the first defendant and dedicated to promoting his political views. For practical purposes there is no distinction between the two defendants and, save where it is necessary to refer specifically to the position of MIRA, I will refer to both in this judgment simply as "the defendant".

The claimant alleges that on eight occasions in October 2007 and a further 22 occasions in January and at the beginning of February 2008 transponder space on its satellites was used without its authority to broadcast programmes created by the defendant. Whoever was responsible utilised, on the claimant's case, the so-called "guard bands" on the satellites. These are narrow bandwidths between the main broadcasting frequencies which are normally kept unused in order to prevent interference between the broadcast channels.

On 1^st February 2008, the claimant issued the present proceedings, in which it asserts that that unauthorised use of its system constituted a trespass and that the defendant was the party responsible for that trespass. It claims damages and an injunction. On the same day it obtained ex parte injunctive relief from Bean J. At the return hearing on 7^th February the defendant did not oppose the continuation of relief, and Treacy J. set a timetable for pleadings and disclosure. The action is now set down for trial in February 2009.

By his defence, dated 29^th February 2008, the defendant did not dispute that the broadcasts in question had occurred, though he did not admit that they were unauthorized - that is to say, he put in issue, without advancing a positive case, whether they had not in fact been made by persons who had a lease or sub-lease to broadcast on the bandwidths in question. But in any event he denied that he was responsible for the broadcasts. At para.6 of the defence he pleaded as follows:

By request 3 of a request for further information dated 15^th April 2008 the claimant asked as follows:

The response, dated 9^th May 2008, was as follows:

I should also refer to a letter from the defendant's solicitors, a firm called Quist, dated 24^th April 2008, in which they say this, at para.1.2:

On 7^th April 2008 - that is to say, after it had received the letter from Quist to which I have just referred, though before it had received the response to its request for further information - the claimant issued an application which, among other things, sought an order in the following terms:

The application as it related to these two items came on before Master Eyre on 24^th June 2008. The evidence before the Master consisted of two witness statements from Mr. King, a partner in the claimant's solicitors, and two from the defendant. Mr. King's witness statements essentially relied on the inferences to be drawn from the pleadings and correspondence to which I have referred and contained no independent evidence.

The defendant's witness statements, however, are much more extensive. I do not in fact have his first witness statement because it was accepted that it contained irrelevant material, and by agreement the defendant subsequently lodged a revised version dated 11^th August 2008. It is that version which is before me, but its contents were all before the Master, albeit not in identical form. Those contents can be summarised, so far as relevant to this appeal, as follows:

In his second witness statement, dated 11^th June 2008, the defendant addressed specifically the terms of the order sought by the claimant. He said this:

As regards the application for documentary disclosure, the defendant denied having any documents in the categories in question.

At the hearing before Master Eyre, the claimant said that it was not pursuing the application for documentary disclosure in the light of the defendant's statement that he had no relevant documents. It was, however, pursuing the application for an order that the claimant identify the sponsors referred to in his solicitor's letter. Mr. Wolfson of counsel, who appeared for the claimant as he does before me, put the application squarely on a Norwich Pharmacal basis: see Norwich Pharmacal Co. v. Customs & Excise Commissioners [1974] AC 133. That is, although the claimant's primary case was that the defendant himself was responsible for the trespass, if, as he alleged, it was in fact the responsibility of his "sponsors", the claimant would have a good claim against the sponsors in question, and it was entitled to disclosure of their identity so that it could consider whether to proceed against them. I put it that way because, as Mr. Wolfson made clear to me, the claimant was not saying that it would necessarily bring proceedings. As he put it in his skeleton argument:

It may be that the claimant could have sought similar relief not on a Norwich Pharmacal basis but simply by way of an application for further information under CPR Part 18, based on the averments in the defendant's pleading. But Mr. Wolfson confirmed to me that a considered decision had been made not to take that course. I observe that one obvious difficulty about a Part 18 application would have been that, even if an order had been made and information provided pursuant to it, the claimant would have had to obtain the permission of the court to bring proceedings against the persons named, and thus at least some of the same issues that would arise on a Norwich Pharmacal application would arise equally on a Part 18 application. The consequence, however, of the case being put in this way is that I must approach it on the basis that the defendant is no more than a person innocently mixed up in the wrongdoing of others. That is worth emphasising. It is, as I have said, his case that all his previous experience of his sponsors is that they have acted lawfully and properly, albeit in ways unpopular with the Saudi government, and that he has, and had, no reason to believe that the broadcasts with which this claim is concerned were not being made on the same basis.

Master Eyre reserved his decision. He shortly afterwards provided a draft written judgment, broadly accepting the claimant's case, and at a hearing on 4^th July 2008 he heard submissions as to the form of the order that should be made in consequence. The order which is the subject of the present appeal was effectively made on that day, although the formal order was not sealed until 25^th July. It reads as follows:

That order is, as I have said, the subject of an appeal and a cross-appeal. I start with the appeal. This focuses on the words "or may have been". It is convenient first to consider what the effect of the order would be without those words. If that were its full extent - that is, insofar as it simply directed the defendant to tell the claimant of the identity of any person who, to his knowledge, had been involved in any way in the arrangements to broadcast his material via its satellites - Mr. Millar for the defendant submitted that it would be entirely unnecessary because the defendant had already given that information in his second witness statement. Paragraph 3 of that witness statement says in terms that he does not know the identity of any person who was involved in the arrangements in question. In my view, Mr. Millar is right about this. Such an order would, in my view, be redundant. Mr. Wolfson said that the claimant was entitled to the assurance of a further letter, as required by the order, in view of the confusions and inconsistencies in the pleadings and in Quist's previous statements on this question; but I do not accept that. Paragraph 3 of the witness statement is perfectly explicit and, contained as it is in a witness statement specifically directed to the terms of the claimant's application, is every bit as formal as a statement in a further solicitors' letter. I can well understand that the claimant may be sceptical of the truth of the defendant's answer, but that is another matter. It can in principle cross-examine him about it at the trial.

Turning, therefore, to the words "or may have been", these clearly extend the meaning of the order. Mr. Wolfson says that their intention and effect is to require the defendant to identify those persons who, on his own account, have in the past arranged for his material to be broadcast via other satellites. I will refer to this group as "past sponsors". Mr. Wolfson says that the overwhelming likelihood is that the persons responsible for the unauthorised use of the claimant's satellites - accepting for present purposes that it was not the defendant himself - was one or more of those past sponsors. I will consider presently whether an order having that effect would be justified. If that was the intended effect of the Master's order, it is somewhat opaque but in any event the words in question seem to me inappropriate. I do not think that it is right in principle that a party should be ordered to make a judgment about who "may have" done such-and-such a thing. If the order is intended to have the effect contended for by Mr. Wolfson, it should say so explicitly. (I should say at this point that any deficiencies in the drafting are not the Master's fault. The present wording emerged as a compromise out of a slightly confused debate between counsel at the hearing on 4^th July about how to give effect to the reasoning in the Master's draft judgment. They both reserved the right to challenge that reasoning.)

That then brings me to the cross-appeal. What the claimant seeks is the removal from the Master's order of the words "the claimant's". The effect of that is, and is intended to be, to require the defendant to identify those persons who have arranged for his material to be broadcast on other satellites, that is the past sponsors (and thus to achieve by another route what Mr. Wolfson says was the effect of "may have been"). The real question which was the subject of dispute before me was whether an order having that effect is justified. After careful consideration I do not believe that it is. My reasons are as follows.

The starting point is to appreciate that the effect of the order sought will not be, as such, to identify the person or persons who are responsible for the alleged trespass. What it will do is to compel the defendant to identify a group of people which, at best, may include the culprit. I am inclined to agree that the probability is that the person - I will use the singular for convenience though it appears from the defendant's evidence that more than one person was likely to be involved - who is responsible for the alleged trespass will be among the defendant's past sponsors. Nevertheless, that is no more than a probability. Mr. Millar makes the reasonable point that the use for the first time of unauthorised access to a satellite - and a different satellite - represents a significant departure from the modus operandi of all the previous broadcasts. I also note that if the person responsible is someone whom the defendant is able to identify as one of his past sponsors, he has on this occasion changed his practice and withheld his identity from the defendant, since the defendant says (see para.4 of his second witness statement) that he was not aware that any of his past sponsors was involved on the present occasion.

But even if it were certain that the culprit was to be found in the pool of the defendant's previous sponsors, the order sought would not, on the evidence, lead to the entire pool being identified. The defendant makes it clear in para.4 of his second witness statement that he does not know the identities of all his past sponsors. That is clearly the effect of the phrase "some limited information about some of my sponsors". I must proceed therefore on the basis that although the order may give the claimant a list, maybe a short list, of possible culprits, the actual culprit may not be on it and, even if he is, it will not be possible to pick him out from the others on the list.

Mr. Wolfson observes that the defendant has made matters more obscure than he needed to. Even granted his wish not to compromise the confidentiality of his past sponsors, he could at least have indicated their approximate number and the numbers that he could and could not identify. If he had done so, then the court would have had a better idea of the size of the pool and the chances that the culprit would be in it. There is force in that observation, but the fact remains that even if we knew the numbers of past sponsors and they were small, as seems not unlikely, we could not on the evidence say with even reasonable certainty that any, let alone all, of them were the alleged tortfeasors.

I acknowledge again that the claimant may be entitled to be sceptical of the defendant's evidence that he has such partial information about the identities of his past sponsors; and it may be that, to the extent that it is relevant at trial and he is permitted to do so, he will wish to test that evidence too in cross-examination. But it is certainly not so incredible that I can simply discount it. There are good reasons why those involved in dissident activities should be chary of identifying themselves even to their allies.

The uncertainty as to whether the information sought will in fact lead to the identification of the wrongdoer means that the circumstances in this case are significantly different from those of a classic Norwich Pharmacal case, where the information required to be given is generally simply a name, which it is accepted that the party from whom it is sought knows and which is self-evidently that of the wrongdoer. If the claimant in this case was to get, say, half a dozen names, an action against any one of them would be essentially speculative: indeed, for the reasons I have already given, that would be so even if he got only a single name. Mr. Wolfson was able to refer me to no case which was analogous to the present case in this respect. In Norwich Pharmacal the House of Lords proceeded on the basis that the persons named would all be tortfeasors, and Lord Reid made it clear in his speech that the outcome would have been likely to be different if that had not been so: see at p.176B-D. In Ashworth Hospital Authority v. MGN Ltd. [2002] 1 WLR 2033 ([2002] UKHL 29) the name ordered to be disclosed was that of an "intermediary"; but it was accepted that the identification of the intermediary would lead to the identification of the wrongdoer: see per Lord Woolf CJ at para.13 (p.2037), and it was also clear that the intermediary was himself very much "mixed up" with the wrongdoing and would have no legitimate claim to confidentiality (subject to the article 10 issues with which the case was primarily concerned). Mr. Wolfson relied on the decision of Sir Richard Scott V-C in P v. T Ltd. [1977] 1WLR 1309, but the circumstances there were both unusual and very different from those of the present case. Rimer J. in the subsequent case of Axa Equity & Law Life Assurance Society plc v. National Westminster Bank [1998] PNLR 433 cautioned against treating P v T Ltd. as creating any wide general extension to the ambit of the Norwich Pharmacal jurisdiction. Norwich Pharmacal does not give claimants a general licence to fish for information that will do no more than potentially assist them to identify a claim or a defendant. Mr. Wolfson emphasised the use in Lord Reid's speech in Norwich Pharmacal, echoed in several of the subsequent cases, of the phrase "full information" but that term was not used in circumstances in any way analogous to those in the present case.

No doubt the limits of the Norwich Pharmacal jurisdiction are not set in stone, as Lord Woolf emphasised in Ashworth (see para.57, p.2049), and I do not say that an order could not in principle be made to identify a small pool of potential wrongdoers - in particular perhaps where the claimant could show that once he had the names in question, he would be able, from other information, to sort the sheep from the goats. But such a case would certainly be at the very limits of the jurisdiction and the court would wish to be very fully satisfied that "there is no substantial chance of injustice to the persons so named" (see per Lord Reid in Norwich Pharmacal itself at p.176D).

That being so, the focus falls on the defendant's evidence that if such an order were made and complied with it would involve a serious breach of obligations of confidentiality owed by him to the persons whose identities he disclosed. It was, as I have said, his evidence that such sponsors would not wish it to be known that they had assisted him. His evidence only states the grounds for that wish in decidedly broad terms and there is not very much in it to substantiate his very general allegations that they might find themselves the victims of harassment and persecution or even risk to life and limb. That lacuna was, to some extent, filled by two further witness statements put in before me, without objection by Mr. Wolfson, from Mr. Hugh Miles, who does not in fact describe his expertise but who, I was told, is a journalist specialising in Saudi affairs. Among much irrelevant material, his statements do to some extent give more detail of the alleged persecution of dissidents by the Saudi government. But I do not have to rely on that evidence in order to accept that people of some means and some standing in the Arab world, as the sponsors would inevitably be, would have good reasons for not wishing to be publicly identified as critics of the Saudi government. This application proceeds, from the claimant's point of view as much as the defendant's, on the basis that the sponsors in question are people who have been active in promoting the free expression of political opinion and indeed (unless they are shown to be responsible for the trespass complained of in these proceedings) doing so entirely by legitimate means. That is an important value, and the court ought to respect their wish for confidentiality unless there is very good reason to believe that they have been acting unlawfully. But, as I have already sought to show, the most that the claimant can establish is that there is a probability that one or some of them, not all, has been acting unlawfully. That does not seem to me a sufficient justification for the breach of the confidence owed to those who have not.

Mr. King in his evidence offered, if the court thought it necessary, an undertaking that any names disclosed would not be passed to any representative of the client, except his in-house counsel, Dr. Al Oufi. The terms of that undertaking implicitly, and realistically, accept that to allow the identities of past sponsors to be disseminated without restriction within the claimant corporation would not offer sufficient protection, given the nature of its ownership. This offer does not seem to me to solve the problem facing the claimant's application. Without in any way doubting the good faith with which the undertaking was offered, I think that the defendant would be entitled to be concerned that the lawyer in question, Dr. Al Oufi, might find it very difficult in practice to maintain the confidentiality of any disclosed information from his colleagues and employers. Putting aside any suspicion that the purpose, or part of the purpose of this application, goes beyond simply the avowed purpose of preventing the wrongdoers repeating the unauthorised access to the claimant's satellites, the fact remains that the identities of the defendant's past sponsors would be bound to be of considerable interest to the Saudi authorities. And, since he is not an English solicitor and neither he nor the claimant are resident within the jurisdiction of the court, no real sanctions will be available if, by accident or design, the information were to leak out. In any event, the ultimate object of the disclosure sought in any Norwich Pharmacal application is to enable a claimant to obtain redress for a wrong suffered. Yet if the undertaking as to confidentiality were maintained, it is hard to see how proceedings could be brought, or even properly threatened, since bringing them would inevitably cause the identities of the past sponsors to become public. Mr. Wolfson said that it might never come to that because the sponsors might be willing to give satisfactory undertakings. That is no doubt possible, but it does not in the circumstances seem very likely.

I do not therefore believe that a Norwich Pharmacal order can be justified in the circumstances of this case. I reach that conclusion without having to rely directly on article 10 of the European Convention on Human Rights, on which Mr. Millar placed considerable reliance in his submissions. Mr. Millar submitted that article 10 was engaged because a requirement that the claimant identify people who are, in effect, his publishers would have a "chilling" effect on his ability, as a person within a Convention country, freely to express his political opinions. I accept that it is reasonable to suppose there would be such an effect, but I would not have been prepared without further argument to hold that the article was engaged where any publication that might have been so chilled would have been exclusively outside the territory of any Convention country. I was certainly not satisfied that the sponsors themselves, who were not identified as having any connection with any Convention country, enjoyed any article 10 rights.

I should add that Mr. Millar did not address me on the issue of whether the conduct of those responsible for the broadcasts of which the claimant complains was in truth actionable. He made it clear that there was a serious issue of law as to whether the conduct complained of constituted a trespass and as to whether those responsible may not have legitimately acquired access to the space used. That being so, I heard little on those issues from Mr. Wolfson either. I must therefore proceed on the basis that the claimant is likely to have at least a good arguable cause of action against the persons responsible, though I would if necessary have taken into account that this is not an open-and-shut case even if the tortfeasor were known.

For those reasons I propose to allow the appeal and dismiss the cross-appeal. Despite the fact that I have dealt with the substantive issue in connection with the unsuccessful cross-appeal, I think it is clear that I am in fact differing from the result intended by the Master. I need not analyse his reasons in detail but I respectfully believe that he failed to take into account the distinctions from the typical Norwich Pharmacal case which I have sought to identify.

I should finally say that I do not regard anything in this judgment as binding the trial judge in considering any application that may be put before him. The circumstances may look very different as a result of matters that may arise at or in the aftermath of the trial.

There was also, as I have said, an appeal before me by the defendant against the costs order made by the Master. In the circumstances, that falls away.