SINGAPORE JUDGES OVERTURN SOURCE DISCLOSURE ORDER (Media Lawyer)

SOURCES Singapore

Jan 14, 2014 5:20:56 PM

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The Court of Appeal in Singapore has overturned an order that a journalist should disclose the source of material he had written about the relationship between World Sports Group (WSG) and former Fifa vice-president Mohammed Bin Hammam.

Writer and scholar James Dorsey, a senior fellow at the Singapore's S Rajaratnam School of International Studies at Nanyang Technological University, and author of the blog The Turbulent World of Middle East Soccer, had appealed against an order to disclose his sources for a report about the relationship between World Sports Group (WSG) and Mohammed Bin Hammam, a former Fifa vice-president and one-time president of the Asian Football Confederation (AFC) who is now banned from the game.

A Singapore court had ordered him to respond to pre-action interrogatories which WSG had wanted completed.

The sports management group had argued that Mr Dorsey should provide the information because he had obtained confidential material from a source or sources, and had defamed the company in his blog.

But it had failed to launch any direct claims against Mr Dorsey, either for breach of confidence in receiving the material, or for defamation.

The row centred on publication of details of a report by accountants PricewaterhouseCoopers Advisory on activities by the AFC while Mr Bin Hammam was its president, and on a commercial rights agreement between it and WSG.

WSG sought an order for Mr Dorsey to make the disclosures under Singapore's pre-action interrogatories regime, which allows courts to order pre-action disclosure or discovery of information, or issue the equivalent of Norwich Pharmacal orders so that would-be litigants can obtain relevant information from third parties.

The firm argued that Mr Dorsey had had access to the PWC report, and that that access was in breach of confidence, and said it wished to sue the person responsible for the leak and was considering suing him for defamation over a posting which appeared on his blog in August 2012.

The Singapore Court of Appeal held that the lower courts were wrong to issue the interlocutory interrogatories, and quashed them.

It also ordered that WSG should pay Mr Dorsey's costs for the appeal and the previous proceedings on the indemnity basis.

It pointed out that the PWC report was the subject of considerable coverage in national and international media - none of which was the subject of any attempted litigation by WSG.

The court considered the interrogatories regime and issued guidance on the manner in which it should operate.

It said that from the start of the application WSG had asserted that an unknown person had disseminated the PWC report to various media organisations.

"In our opinion the level of exposure that the PWC report had been given in the international press and the fact that there was no credible evidence that WSG had been singled out for mention by the international media or Dorsey casts some doubt over the 'real interest' that WSG has in needing to identify these 'sources' so as to commence legal proceedings against such sources," it said.

"Further, there is no evidence that either Dorsey or the source(s) were motivated by malice or ill feeling against WSG.

"These factors must be taken into account in weighing the scales of competing interests in assessing whether the pre-action interrogatories should be ordered.

"If Dorsey was not the only person who was privy to the PWC report, it is curious why WSG should be focussing on Dorsey alone, and in particular, Dorsey's sources when in fact there were other extensive communications with the international media."

It "seems odd", said the court, that WSG should claim that its reputation was severely damaged but had not acted immediately to clear its name by suing Mr Dorsey directly even while trying to find the sources of the leak.

The material in the PWC report had now been so widely publicised that it could no longer be considered confidential, the court said.

WSG, it said, had to explain why, although the PWC report was leaked to man y media outlets, the leak to Mr Dorsey alone remained its only legal action anywhere.

The court asked: "What about all the other media outlets that covered this scandal?

"WSG has simply failed to address this curious state of affairs.

Further, there is absolutely no indication that WSG has taken any other steps to find out the identity of the source(s). This invites further vexing questions as to WSG's reasons for seeking Dorsey's sources even before initiating proceedings to clear its name."

The question of whether there was any genuine connection to Singapore and its courts was also unclear, the Court of Appeal said, adding that "considering WSG's vague allegations of Dorsey's wrongdoing, the sheer uncertainty of where this alleged wrongdoing took place is a strong factor which weighs against the ordering of pre-action interrogatories in aid of proceedings beyond Singapore".

It was not enough for WSG to hypothesise that "the information was as likely to have been received in Singapore was anywhere else" because, on the established facts, "the converse was just as likely".

The Court of Appeal said that if the assertions in the PWC report and Mr Dorsey's blog post implicating WSG were true, "it may be difficult for WSG to insist that its interests in confidentiality would override the wider interest in exposing corruption everywhere."

It went on: "We think it would be fanciful to argue against the proposition that the exposure of flagrant corruption (as in the present case, where allegations of such a nature were made) is in the public interest anywhere. Serious wrongdoing of such a nature should be laid bare in the public interest."

The court, which stressed that it was making no findings of fact about the truth or otherwise of any of the allegations raised in the case, as that was not an issue for its determination, added that when it came to corruption, similar public interest considerations applied to officials in international organisations such as sports bodies as they did to public officials.

"Certainly, corrupt practices in international football organisations ought not to be permitted to be spuriously choked  by arid claims of confidentiality," it said.

"It would be grotesque for a party implicated in corrupt activities to assert that the courts ought to defer to contractual arrangements importing confidence if those very arrangements are infected by sordid criminality. To adapt a well-known dictum, sunlight is the best disinfectant for corruption."

James Michael Dorsey v World Sports Group Pte Ltd

[2014] SGCA 4

Court of Appeal of the Republic of Singapore, Chief Justice Sundaresh Menon, Judges of Appeal Chao Hick Tin and V Rajah

Hearing: September 23, 2013; Decision: January 14, 2014

N Sreenivasan SC and Sujatha Selvakumar (Straits Law Practice LLC) for the appellant; Deborah Barker SC and Ushan Premaratne (Khattar Wong LLP) for the respondent.