SINGAPORE — The Court of Appeal yesterday allowed a veteran journalist to withhold the source or sources from which he had obtained a confidential audit report on the Asian Football Confederation (AFC), overturning an earlier court order for him to reveal who he got the document from.
The highest court in the land also ruled that any pre-action interrogatory procedure should be allowed only after a court had taken a multi-factorial view and questioned whether it is just for the applicant to secure the information sought even before any proceedings are commenced.
Judge of Appeal V K Rajah, who delivered the judgment, said the application by the World Sports Group (WSG) was “premature”, noting that exposing corruption would override concerns over confidentiality.
Mr Dorsey, who is a Senior Fellow at the Nanyang Technological University’s S Rajaratnam School of International Studies, had in July and August 2012 used portions of the audit report on his blog, The Turbulent World of Middle East Soccer.
He wrote that the report detailed payments made to former AFC President Mohamed Bin Hammam by one of WSG’s shareholders before the two firms signed a US$1-billion (S$1.27-billion) agreement.
Singapore-based WSG has alleged that the audit report prepared by PricewaterhouseCoopers Advisory Service under instructions from the AFC — to review transactions, accounting practices and contracts negotiated during Mr Bin Hammam’s tenure — contains remarks defamatory of the firm, as the auditor was provided with inaccurate or incomplete information.
WSG then applied for the sources to be revealed so that it could sue the parties that leaked the audit report for breach of confidentiality.
In a 51-page written judgment, the Court of Appeal said that WSG had failed to make a case for compelling Mr Dorsey to reveal his source or sources.
The firm’s claim and whom it was making the claims against, were unclear, it added.
The Court of Appeal also noted that the information from the audit report had already been disseminated to other media organisations by unknown sources, and there was no evidence that Mr Dorsey, or the sources, were motivated by malice or ill will against WSG.
The Court of Appeal — which comprised Justice Rajah, Chief Justice Sundaresh Menon and Judge of Appeal Chao Hick Tin — also laid down guidelines on the pre-action interrogatory procedure, the process which WSG used to force Mr Dorsey to reveal his sources.
Justice Rajah pointed out that the procedure saves cost and time but there are problems with it: An applicant may engage in “fishing” for evidence to make out a claim which is wholly speculative, and there is a risk that an order for pre-action disclosure can increase the cost of resolving disputes.
Non-parties also have reasonable expectations in maintaining confidentiality and privacy.
The court also noted that pre-action interrogatories can only be ordered in relation to proceedings in a Singapore court, but there was no evidence that Mr Dorsey obtained the information here.
While it noted that Mr Dorsey was not protected as a witness under the Prevention of Corruption Act, the Court of Appeal said corrupt practices in international football organisations “ought not to be permitted to be spuriously cloaked by arid claims of confidentiality”.
“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,” it added.