The Leader Column

Oh, what a circus it was on Friday. Simmons & Simmons partner David Sandy turned up at the offices of the Financial Times, The Guardian, The Times and The Independent to get hold of the leaked Interbrew documents following the refusal of permission to appeal to the Lords. He was greeted by a battery of cameras, but came away empty-handed. Oddly, the Simmons camp expressed surprise at the presence of the cameras, but they could hardly have expected anything less.
There’s quite enough drama in this case already, which revolves around disclosure of sources on Interbrew’s possible bid for South African Breweries. (Sorry, but don’t expect The Lawyer to side with Interbrew on this one.) Interbrew wants the bid documents in order to identify who leaked them. The editors won’t budge.
Simmons has fought very effectively for its client – both Lightman and Sedley found for Interbrew at first instance and then at the Court of Appeal – but there’s not going to be much common ideological ground between the opposing parties.
The news organisations – advised by Clifford Chance, Farrer & Co and Lovells, plus a variety of heavyweight in-house newspaper lawyers – see this case as scarily precedent-setting. Simmons thinks not. The news organisations say it undermines the very principle of free expression and of encouraging whistleblowers in a post-Enron era. Simmons says the journalists were duped. The news organisations are now saying they’re taking the whole thing to Strasbourg. Simmons says that’s just a delaying tactic and that the judges had already applied the European Convention on Human Rights to this case.
The newspapers probably guessed which way the wind was blowing after the Ashworth judgment on 27 June this year. That case, if you remember, was brought by Ashworth High Security Hospital over The Mirror’s publication of Moors murderer Ian Brady’s medical records. In the judgment, Lord Woolf appeared to go out of his way to link the case with Sedley’s observations on Financial Times v Interbrew, though many would see the publication of medical records as one step beyond the publication of commercial information.
Perhaps most intriguing is how the Financial Services Authority (FSA) is hiding behind Interbrew’s skirts. It wants the documents, but was not prepared to collect them. Over the past few days, the FSA has let Interbrew take all the heat from the press. That’s what I call media management.