It was revealed yesterday that The Times is facing the prospect of fresh legal action from the NightJack blogger as the Leveson Inquiry looked in forensic detail at the paper's involvement in illegally hacking an email account and concealing that fact from the High Court.
Times editor James Harding yesterday issued an apology over the hacking of Richard Horton's email account in 2009 and revealed he had also apologised to both Horton and to Mr Justice Eady over the fact that information was witheld during an injunction hearing.
Lord Justice Leveson told Harding: 'Nothing that you are discussing today is relevant to the litigation between Mr Horton and the Times. If Mr Horton wants to pursue some remedy that will be a matter for him, to take advice and do what he feels is appropriate."
Later into the hearing Harding told the inquiry that he had recently attempted to get in touch with Horton after he learnt about the email hacking allegations but found that he had already instructed lawyers. Press Gazette understands that lawyer Mark Lewis is acting for Horton.
Much of yesterday's evidence focused on a High Court hearing held in June 2009 in which Horton had an injunction banning publication of his identity overturned by The Times.
Harding said that he had no knowledge of the story, or that that the legal action was being defended, until after the hearing.
Harding: 'I had no idea'
At one point he told inquiry counsel Robert Jay QC: 'I had no idea that the case had been brought to court.
'I didn't know what the legal correspondence was, I didn't know who'd been instructed, I didn't know what the instructions were I didn't know the subject matter in the case."
Harding said the paper's then legal manager Alastair Brett defended the case at the High Court without his knowledge, adding: 'I have never heard of a case where the legal manager takes a case to the High Court without informing the editor, the deputy editor or the managing editor."
Jay read out a series of damaging emails that shed light on how Foster, then aged 24, uncovered the story.
On 19 May he wrote to the paper's home affairs editor Martin Barrow: 'Martin, sorry to bother you, do you have five minutes to have a quick chat about a story away from the desk, down here in the glass box perhaps?"
Harding said he believed that the hacking had taken place before this email was sent.
Barrow told Foster to inform Brett, and later that day he wrote to the lawyer saying: 'Hi Alastair, sorry to bother you, do you have five minutes today I need to run something past you?"
On the afternoon of 20 May Foster emailed Barrow saying: 'Alastair on side... SB has sent typically polite email below trying to talk it out of paper this Saturday for three reasons: [one] I'm away this Friday, two, want a little bit more time to put ducks in a row and pics, and [three] want a little more space between the dirty deed and publishing."
'That gives rise to a fairly clear inference, doesn't it,'Jay said to Harding.
The editor replied: 'This email suggests that he wanted to put some space between what he had done in seeking access to that email account and his efforts to identify him using legitimate sources.'
Finding the 'golden bullet'
Those efforts began on 27 May 2009 when Foster said in another email that he was 'going to start the fronting up process".
Harding said that in a later email that Brett 'tears a strip off Mr Foster and says if he wants to pursue this story then he has to do so by proper journalistic endeavour".
Foster began looking at publicly available information to see whether he could identify Horton through that route, which was, said Jay, 'rather like working from the inside of the maze out".
Harding agreed that Foster was essentially asking questions to which he already had the answers
Asked if this was a journalistic endeavour he would have supported, Harding replied: 'Of course not. To be absolutely clear, if Mr Foster had come to me and said that he had done this we would have taken the disciplinary action that we did take, and I would have told him immediately to abandon the story.
'Because regardless of what information that he did or didn't get it lays the newspaper wide open to that charge."
Between 27 May and 30 May, Foster continued his attempts to link Horton to the blog using publicly available information, and on 30 May he wrote an email to Brett saying: 'Alistair I've cracked it. I can do the whole lot from purely publicly accessible information."
Brett replied: 'Brilliant. That may be the golden bullet. Can you set it out on paper?"
Times claimed Nightjack unmasking down to 'deductive exercise'
Managing editor David Chappell apprently first heard of the litigation on 3 June and after a hearing before Mr Justice Eady on 4 June was told there were concerns about Foster's actions.
This was the first time senior management become aware of the litigation or of the concerns about Foster's conduct, according to Harding.
When Leveson said he was surprised to hear this, Harding replied: 'When you say it caused you surprise you can imagine what it caused me."
He added: 'Mr Brett is an extremely distinguished and well respected lawyer, and had been the lawyer for the paper for many, many years.
'I think on quite principled grounds... he wanted to take this case, that it was important to address the issue of creeping privacy injunctions and the issue that raised for press freedom.
'I think in particular there were issues he thought important in terms of anonymity on the web... he deeply apologised for the fact he didn't raise it with us before he took it to court."
Leveson hit back: 'I'm very pleased that he's considering the ethical consideration that might apply to the press, the extent to which he gave thought to the ethical considerations relevant to the court is perhaps another matter."
The inquiry heard that Horton's lawyers, including Olswang partner Dan Tench, raised concerns over email hacking on six occasions, including in front of Justice Eady.
But The Times insisted the story was derived 'from a self-starting journalistic endeavour'and a 'largely deductive exercise'that began when NightJack won the Orwell Prize in April 2009.
Horton's counsel later accepted that while it was concerned about the allegations , it could 'assume that it's more likely than not, on the evidence that's before the court today, that the identity was discovered by detective work and not by, as it were, conventional breaches of confidence".
'The whole story is about information that didn't get passed through'
On 4 June Harding was copied into an email referencing email hacking by Foster but he claimed he did read it until last week.
On that day his attention was focused on the local election and attempts to oust then Prime Minsiter Gordon Brown, he said.
Asked why Chappell didn't raise the issue with him, Harding replied: 'I can't recall the exact context of that conversation.
'There's a reference to the meeting in my diary and there's a reference to the meeting having happened in a follow up email, but I don't want to speculate on what was in that conversation.
'I have to own up to my responsibility and my failure here. As I said in the statement I can see now we paid insufficient attention to this at the time."
'The whole story is about information that didn't get passed through,'he told Leveson.
At one point Harding said: 'When you look back at all of this, sir - I really hope you understand - it's terrible. I really hope you appreciate that. I know that as keenly as you do. But I also hope you appreciate that the reason we're here and the reason we're discussing this is that we take this inquiry very seriously, and every time we've learnt new things about this, we've brought this to your attention, and that's the reason that we're addressing these issues now."
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