The attorney general has lost an attempt to make the BBC pay legal costs incurred by the government after the broadcaster had challenged an injunction relating to a covert intelligence source who was accused of abusing two female partners.
Though the attorney general for England and Wales is now Victoria Prentis, the case relates to actions taken by her predecessor.
Suella Braverman, now home secretary, had obtained an injunction at the beginning of this year after the BBC proposed to identify an MI5 source who, it said, had used his alleged association with the security service to terrorise and control his partner.
An important factor in the judgment delivered by Mr Justice Chamberlain on Friday was his earlier finding that a government source had apparently briefed the press about a case that Braverman said she wanted heard in private. The Daily Telegraph carried an exclusive report in January, citing an unnamed source, although some of the details turned out to be inaccurate.
Braverman conceded in court that the Telegraph “appears to have had some kind of inside source”, but asserted that this was “someone acting without authority”. Chamberlain found no evidence “to negative the inference which arises from the terms of the article itself: that the source referred to in that article is a government source”.
As the judge explained in February:
These conclusions are relevant to the attorney’s application for privacy in two ways.
First, the fact that a government source (whether acting with or without authority) appears to have briefed the press about this case has an impact on the extent to which it is “necessary to sit in private to secure the proper administration of justice” within [court rules]. It would in principle be unfair to allow one party to put its own “spin” on a case without allowing the other party to put before the public even the basic factual elements of its defence.
Second, leaving aside any question of authority, the fact remains that the information (including the quotations and reporting from the “source”) is now in the public domain.
In April, Chamberlain allowed the BBC to broadcast the story but refused to let it identify the individual concerned. He gave a more detailed ruling in May and the BBC then broadcast the story.
That brought the legal proceedings to an end. The attorney general then applied for an order that the BBC should pay the government’s legal costs relating to the hearings in open court. These were her arguments, in summary:
She was the successful party. The issue presented was binary: could the BBC identify the MI5 source or not? The answer was “No”.
The BBC did not achieve anything in the litigation. The attorney never objected to a story which did not name the source.
The fact that the BBC successfully argued that the open portion of the hearing in March should be conducted in public did not change the position on costs.
Costs should follow the event, even though a closed material procedure was involved.
The BBC argued:
Neither party was entirely successful.
The court rejected the attorney’s submission that the open part of the interim injunction hearing should take place in private, relying in part on the fact that it appeared that a government source had briefed the press.
The BBC was the “substantial victor” at the third hearing, which decided what information could be safely disclosed.
In his ruling on Friday, Chamberlain said the outcome of the case was
midway between what the attorney general had initially said she would accept and what the BBC wanted to publish. Neither party was, therefore, wholly successful or unsuccessful.
Taking a broad view, said the judge, “the simplest and fairest outcome is that each party bears its own costs of the entire proceedings”.
Comment
We do not know who briefed the Telegraph that Braverman was taking action against the BBC. But some of the government’s legal costs were incurred in trying, unsuccessfully, to establish that the briefing had not come from someone in government with knowledge of Braverman’s legal moves.
If the Telegraph had not been given the story, it is possible that the BBC would have been ordered, in the end, to pay some or all of the government’s legal costs.
A stipendiary magistrate- later of course a District Judge by appellation-had wanted from me as a representative of the profession the “lowdown” on an unusual decoration/ badge worn in court by a fellow solicitor / advocate. Via his employer , diplomatically , I secured an assurance that there had been nothing sinister or political about it. The District Judge rather doubted that on my conveying that to him but added that he had been advised NEVER to start something you were less than sure that you could finish and so he let it drop.
His line on the criminal justice system was entirely different to mine but on this occasion I thought he had been very wise.
One would have hoped that a similar caution might have struck Suella Braverman when Attorney General as the way to go, but no. Yet another example, as I fear, of the petulance and arrogance shown by Braverman.