Alastair Brett v Solicitors Regulation Authority [2014]

In Alastair Brett v Solicitors Regulation Authority [2014] EWHC 2974 (Admin) Alastair Brett was appealing against a decision made by the Solicitors Disciplinary Tribunal (SDT) of 6th December 2013 which occurred whilst he was Legal Manager at Times Newspapers Limited (TNL), a post he had held for 30 years.

The breach of code of conduct arose from an incident which involved a journalist called Patrick Foster who was employed by the Times as their media reporter. In 2009 he committed a technical breach of the Computer Misuse Act 1990 by hacking into the yahoo email account of a police blogger, who wrote under the name of Nightjack, to find out who he was. He uncovered his true identity as Richard Horton who was a detective Constable. The existence of the police blogger called Nightjack had been revealed because of the Leveson Inquiry.

Mr Horton then brought a privacy claim for an injunction against The Times as they had not revealed how they had found out his true identity. He failed to get the injunction but it transpired that the newspaper, in the meantime, misled the High Court by inferring to the court that they had uncovered his true identity using legal methods. They had not made it known to the Times barristers or Richard Horton’s Counsel or Mr Justice Eady that Patrick Foster had hacked Mr Horton’s email. The Times, subsequently, in October 2012, paid £42,500 to Richard Horton in damages.

The Times editor at that time, James Harding, had said he had not been aware of the court action by Richard Horton when he gave the go ahead to publish the story. He told the Leveson Inquiry that he had had little choice than to publish having already taken up the court’s time. It transpired that he had also been sent a copy of the email referring to the hacking of the email, which he denied having seen.

It also came out of the Leveson Inquiry that Patrick Foster had been given legal advice by Alaistair Brett, the Times former legal manager, that he should test the story so that it could stand up to “proper journalistic endeavour” which he then tried to do without using hacking methods. In the meantime, Mr Brett asked a junior Barrister whether a crime had been committed and was advised that there could be a crime under the Data Protection Act with a probable defence of public interest.

Mr Brett has appealed against the breach and the costs award from the Solicitors Disciplinary Tribunal. As he had already served the 6 month suspension this did not form part of the Appeal.

Mr Brett argued that the SDLT had not considered his right of protection to communication which is subject to legal professional privilege. With regard to that legal professional privilege and also protection from self-incrimination , which he believed Patrick Fosters disclosures to him were, Mr Brett said this should have covered the information that Patrick Foster gave to him when he had told him about having gone into Mr Horton’s email.

He also did not agree with the SDLT view that Mr Brett and Patrick Foster’s connection was only as witnesses in proceedings against Times Newspapers Ltd without taking into account his right of legal professional privilege and protection from self-incrimination, which he believed the information imparted by Patrick Foster was covered by.

Mr Justice Wilkie, however, did not consider the issues raised by Mr Brett in his appeal were of relevance. What he thought should be considered was the issue of the court being misled and what was he thinking when he allowed the court to be misled.

The Judge concluded that Mr Brett had acted recklessly in allowing the court to be misled and as such, the SDLT, if it had thoroughly looked at all the issues before them, would have found him guilty under Rule 11.01 in that he had “recklessly” allowed the court to be misled. The Judge found that he was also guilty of a breach of Rule 1.02 as he had failed to act with integrity.

Mr Justice Wilkie allowed Mr Brett’s appeal but only to the extent of quashing the SDLT decision in respect of them finding him guilty of Rule 11.01 of him “knowingly” misleading the court. He substituted a finding that he was guilty of “recklessly” misleading the court. He did not allow his appeal on the findings of the SDLT that he was in breach of Rule 1.02, meaning that he failed to act with integrity.

With regard to the costs of £30,000, the Judge dismissed the appeal by Mr Brett and found that the award of costs should remain unaltered.

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