In the middle of the NightJack row

Newspapers’ former lawyer brought into row over police blogger

The Times and The Sunday Times’ most senior lawyer Alastair Brett may have left the papers in 2010, but he was indirectly dragged back into the fray by The Times editor James Harding at the Leveson inquiry last week.

Harding told the inquiry he had written to Mr Justice Eady to apologise for the paper’s failure to declare that a reporter had hacked police blogger NightJack’s email during a High Court injunction hearing, effectively blaming Brett.

NightJack blogger Richard Horton is now suing the paper for damages and has instructed Taylor Hampton’s Mark Lewis. Linklaters is advising The Times.

Although not exactly an everyday problem for most counsel, the case is a fascinating study of an in-house lawyer in an invidious position.
The Times reporter Patrick Foster, who has since left the paper, discovered NightJack’s identity in 2009 by hacking into his email. NightJack was a detective who wrote about his job online, and received the Orwell Prize for his blog.

Foster went to Brett with the story and told him, in confidence, how he had got it. But Foster went back and stood the story up properly, through legitimate means. The Times then decided it would pursue the story and informed NightJack, who sought an injunction to protect his identity. NightJack instructed Olswang’s Dan Tench, who – in a lovely narrative twist- later acted for News International in the fallout from the News of the World hacking scandal.

At the High Court, Eady J found in favour of The Times, saying NightJack was not protected by laws on confidence and privacy, and there was a public interest in the story. Although wind of Foster’s email hacking had reached NightJack’s lawyers it was never proven in court.

Harding says he had no knowledge of the hacking, or even of the decision to fight the injunction in the High Court until after the events.

The case raises a lot of issues, not least the absence of a public interest defence under the Computer Misuse Act, which would have been brought into play if the email hacking had been known.

Brett is expected to appear before the Leveson inquiry soon. This story has legs.