The Times and NightJack: an anatomy of a failure
The story of how, in a string of managerial and legal lapses, the Times hacked NightJack and effectively misled the High Court
27 May 2009 – the blogger takes legal action
On the morning of Wednesday 27 May 2009, a week after the meeting between Foster and Brett, Detective Constable Richard Horton of the Lancashire Constabulary was told by colleagues that the Times picture desk had been in contact asking for photographs. Then at around lunchtime, Horton received a call on his private mobile telephone number.
The caller was Foster.
Horton later wrote:
Then one morning I heard a rumour that the Times had sent a photographer to my home. Later in the afternoon came the inevitable phone calls from the Times, first to me and then to Lancashire Constabulary, asking for confirmation that I was the author of the NightJack blog.
That was easily the worst afternoon of my life.
As Horton’s lawyer later told the High Court:
[Horton] was approached by a journalist, Mr Pat Foster, claiming to be from the Times newspaper. Mr Foster told [Horton] that he had identified him as the author of the blog and was proposing to publish his identity as author of the blog together with a photograph of him in the next day’s edition of newspaper.
[Horton] has no idea how Mr Foster identified him as the author of the blog.
Foster later described the same call in a witness statement for the High Court:
On May 27 I contacted Richard Horton by phone and put it to him that he was the author of the blog.
He seemed agitated and would not confirm or deny the allegation.
In the course of the conversation he admitted that he had had contact with journalists about the blog. He said he was writing a book, but said it could be coincidence that the author of the blog had also written on the blog that they were writing a book.
At the end of the conversation I was certain that he was the author of the blog.
Horton was indeed the author of the NightJack blog, as Foster knew before he made the call. However, Horton was not going to simply accept his imminent “outing”. He contacted the Orwell Prize administrators about Foster’s call and they referred him to Dan Tench, an experienced media litigator at a City law firm.
Tench promptly faxed the Times to warn in general terms that the publication of Horton as the blogger would be a breach of confidence and a wrongful disclosure of personal information.
Horton’s legal challenge took Brett by surprise and it placed the Times in a difficult position. Brett had not thought the outing of Horton would lead to litigation. However, Tench was now demanding an undertaking that the Times would not publish the identity of Horton without giving 12 hours’ notice. The Times agreed. This meant Tench and Horton would now have to be told well before any publication, allowing them an opportunity to obtain an injunction to prevent publication.
Accordingly, the newspaper did not out the blogger the next day as it had intended.
So what public domain information did the Times have on 28 May, the intended publication date, which connected Horton with NightJack?
It is difficult to be certain, as there is little direct evidence of any investigation taking place before 27 May 2009 though there had clearly been analysis of some of the posts. And, in his call to Horton, Foster seemed to mention the literary agent only as supporting evidence. This detail was presumably taken from the email account, as was the number he dialled.
The newspaper appears to have had little more than the information Foster had been able to elicit from the Hotmail account or deduce from comparing some news reports with statements on the blog.
28 May 2009 – Horton applies for an injunction
The morning after Foster’s call to Horton, Brett emailed Tench, giving the required “notice that the Times would be publishing a piece in tomorrow’s paper about your client being the Night Jack”.
Tench replied at lunchtime to confirm that Horton would be seeking a temporary injunction at the High Court.
An injunction hearing was hurriedly arranged for 4pm the same day before Mr Justice Teare. This was to be the first of two High Court hearings for this case.
At the initial hearing, Horton’s legal team set out for the High Court the many detailed steps taken by Horton to protect his anonymity. Because of these steps, Horton’s lawyers contended that any identification by Foster could only have been in breach of confidentiality or an invasion of privacy.
At the hearing of the application for the injunction, the barrister for the Times (who had not been made aware of the hack) was instructed to say that the identity had been worked out “largely” by detective work:
My instructions, having discussed [the confidentiality] argument in particular with my instructing solicitors and the journalist, who is here, are that the proposed coverage that will be given, which will involve the disclosure of this individual’s identity, is derive …from a self-starting journalistic endeavour upon the granting of the Orwell Prize.
It is a largely deductive exercise, in the sense that the blogs have been examined and contemporary newspaper reports have been examined.
This first hearing was a relative success for Horton and his lawyers. It was adjourned to allow the Times to put in a skeleton argument and witness evidence at a resumed hearing the following week. In the meantime, the Times undertook not to publish its story.