23

1 Q.B.

[COURT O F APPEAL]

S E N I O R v. H O L D S W O R T H , Ex parte I N D E P E N D E N T
TELEVISION NEWS LTD.

[Plaint No. 7451407/9]

B .
1975. March 7, 10; 26 Lord Denning M.R., Orr and Scarman L.JJ.

Evidence—Documentary—Television film—Plaintiff's action against

police officer alleging assault—Summons served on television
news company to produce and exhibit all film taken at three-
day pop festival at request of plaintiff—Jurisdiction to require
._ production of untransmitted- film—Remedy for, witness
*-• aggrieved by order to• produce^-rWhether film "documents"
for purposes of subpoena duces tecum—County Court Rules,
Ord. 20, r. 8 (1); Ord. 13, r. 3
The plaintiff in an action in the county court for damages
for assult in the course of the breaking up of a three-day " Pop "
festival alleged that he had been punched on the nose by a
police officer, and, before the trial, sought by a witness sum-
D mons issued by the registrar under the County Court Rules,
Ord. 20, r. 8 (1), the production and exhibition by I.T.N, of all
film and video, both transmitted to the public and untrans-
mitted, taken by their camera crews of the breaking up.
The summons was on the wrong form and addressed to a
member of I.T.N, staff who had no authority to produce and
it was therefore invalid; but during the trial the judge directed
that a fresh summons be issued requiring I.T.N, to produce
E all the film negative of the events.at the festival, to be shown
at their studio. I.T.N, attended by their director before the
court, gave reasons for objecting to produce the untransmitted
film and asked for leave to appeal. The judge refused to alter
the order and refused leave to appeal. He concluded the trial
in favour of the plaintiff without having seen the untransmitted
film; but on his direction after the trial the registrar issued a
summons under section 84 of the County Courts Act 1959 (as
F amended) requiring I.T.N, to show cause why a fine should not
be imposed on them for not obeying the order.
On an ex parte application by. I.T.N, to the Court of
Appeal asking that the order be set aside, the court treated
the proceedings as an application for leave to appeal from the
judge's order and heard the matter with the assistance of counsel
as amicus curiae: —
~ Held, granting leave to appeal and allowing the appeal,
*•* (1) that the order to produce all film negative taken during the
three days of the festival (when the only parts relevant to the
plaintiff's action were those concerned with the breaking up on
the third day) was so wide as to be oppressive and should
therefore be set aside.
(2) (Per Orr and Scarman L.JJ.) that film was a " docu-
m e n t " within Ord. 20, r. 8 (1) of the County Court Rules and
jj the issue of a summons to produce it was obligatory on applica-
tion duly made and was an administrative and not a judicial
act; that the remedy for a party served with such a summons
was to apply to the court to set it aside; and that the court would
set it aside if satisfied that the production sought was irrelevant,
 Senior v. Holdsworth, Ex p. I.T.N. (C.A.) [1976J
oppressive, an abuse of the process of the court, or privileged
from production in relation to the particular legal proceedings; A
and an appeal would lie with leave from a refusal to set it
aside.
Grant v. Southwestern and County Properties Ltd. [1974]
3 W.L.R. 221 and Attorney-General v. Mulholland [1963] 2
Q.B. 477, C.A. considered.
Per Lord Denning M.R. Films and tape recordings which
require special apparatus to operate them are not " documents "
for the purposes of a subpoena duces tecum and do not come "
within the existing procedure for such a summons. But there
is undoubted jurisdiction to order production of such material.
It should be exercised in the county court by the judge, and
by a master in the High Court (post, p. 32D-G).
Per curiam. Where the applicant requires the person served
to exhibit the film produced, the costs of such exhibition should
be recoverable by the person served.
Per Orr and Scarman L.JJ. Though the law as it now C
stands does offer some protection to television authorities
against oppressive applications to produce, the existing proce-
dure both in the county court and in the High Court is not
appropriate to production of film; and some reform of the law
which would provide for judicial consideration inter partes of
an application for a summons to produce such material is
desirable.
D
The following cases are referred to in the judgments:
Attorney-General v. Mulholland; Attorney-General v. Foster [1963] 2
Q.B. 477; [1963] 2 VV.L.R. 658; [1963] 1 All E.R. 767, C.A.
Baker V. F. & F. Investment (1972) 470 F. 2d 778.
Clarke v. Bradlaugh (1881) 8 Q.B.D. 63, C.A.
Democratic National Committee v. McCord (1973) 356 F.Supp. 1394.
Doe d. Rowcliffe v. Earl of Egremont (1841) 2 Moo. & Rob. 386.
Grant v. Southwestern and County Properties Ltd. [1975] Ch. 185; [1974]
3 W.L.R. 221; [1974] 2 All E.R. 465.
Hayes v. Brown [1920] 1 K.B. 250, D.C.
Markham, In re, Markham V. Markham (1880) 16 Ch.D. 1, C.A.
Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647; [1964]
3 W.L.R. 131; [1964] 2 All E.R. 594, C.A.
Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department
[1972] 1 Q.B. 232; [1971] 2 W.L.R. 1466; [1971] 2 All E.R. 1126, D.C.
[1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.).
Rex v. Baines [1909] 1 K.B. 258, D.C.
Rex v. Daye [1908] 2 K.B. 333, D.C.
Securities Insurance Co., In re [1894] 2 Ch. 410, C.A.
Steele v. Savory (1891) 8 T.L.R. 94.
G
The following additional cases were cited in argument:
Attorney-General v. Times Newspapers Ltd. [1973] Q.B. 710; [1973] 2
W.L.R. 452; [1973] 1 All E.R. 815, C.A.; [1974] A.C. 273; [1973] 3
W.L.R 298; [1973] 3 All E.R. 54, H.L.(E.).
Branzburg v. Hayes (1972) 408 U.S. 665.
Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All
E.R. 874, H.L.(E.). H
Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise
Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973]
2 All E.R. 1169, H.L.(E.).
 25
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.)
Doe d. Earl of Egremont v. Date (1842) 3 Q.B. 609.
A
Garland v. Torre (1958) 259 F. 2d 545.
Lewis v. Owen [1894] 1 Q.B. 102, C.A.
Norwich Pharmacol Co. v. Customs and Excise Commissioners [1974] A.C.
133; [1973] 3 W.L.R. 164; [1973] 2 All E.R. 943, H.L.(E.).
Reg. v. Hove Justices, Ex parte Donne {Note) [1967] 2 All E.R. 1253.

g APPLICATION for leave to appeal from order of Slough County Court.

INTERLOCUTORY APPEAL with leave.
The applicants, Independent Television News Ltd., moved the Court of
Appeal for leave to appeal from the order of Judge Duveen at Slough
County Court made at the instance of Diana Senior, Heathcote Williams,
and Nicholas Albery, plaintiffs in an action against Chief Constable David
Q Holdsworth, for damages for assault. The order, in substitution for an
earlier witness summons issued by the plaintiff Albery on December 9, 1974,
was made during the trial of the action on January 6, 1975, on the direction
of the county court judge, ordering that the applicants should on a witness
summons duces tecum issued under Ord. 20, r. 8 (1) of the County Court
Rules " produce all the film negative of the events of the Windsor Festival
j) 1974, such film to be shown at the I.T.N, studio in London." The order
was issued by the registrar of the county court. ,
The applicants asked that the Court of Appeal should set aside the
order directed by the judge in so far as it required the production and
showing of untransmitted film of the events. The grounds of appeal were
(1) that the judge gave no full and proper consideration to those reasons
E advanced by the applicants as to why they considered it neither reasonable
nor desirable in all the circumstances to produce the untransmitted film;
(2) that he was wrong in law to direct the issue of the summons when no
application had properly been made to the court for it to be issued;
(3) that the judge misdirected himself in refusing leave to appeal from the
order when an application in that behalf was made to him and in requiring
P the production of the untransmitted film without first allowing time for an
application for leave to appeal from the order to be heard and determined;
(4) that his contention that the film was material and of importance to the
action before him was irreconcilable with his conclusion of the hearing of
the action and the giving of judgment therein without the production of the
film; (5) that he failed to have proper regard for the practice, long established
by the applicants, of not making available the production of untransmitted
G film; (6) that he was wrong in law to hold that the Independent Broadcasting
Authority Act 1973 was not relevant to the applicants' reasons for with-
holding from the court the film or to his consideration of those reasons;
(7) that he failed or failed adequately to recognise that by ordering the
production of the film the applicants' duty imposed by the Act to produce
the news with due accuracy and impartiality would tend to be rendered
JJ difficult or impossible of performance; and (8) that he failed to recognise
and give effect to the recognition that the applicants, while having a duty
towards the court, had also duties under the Act and towards the public and
every section of the public and towards their employees. In the premises
26
Senior v. Holdsworth, Ex p. I.TJN. (C.A.) [1976]
by reason of that failure he disabled himself from so considering the appli-
cants' contentions as to weigh their various duties and reach a just and
proper balance between them in all the circumstances of the action.

Colin Duncan Q.C. and Hugh Donovan for the applicants. A preliminary
point is whether a witness on a subpoena duces tecum now requires leave
to be represented by counsel: see Doe d. Rowcliffe v. Earl of Egremont
(1841) 2 Moo. & Rob. 386, and the reason for the rule that he should not B
appear by counsel in Phipson on Evidence, 11th ed. (1970), p. 583; but
the court may wish to bring the practice up to date and to correct the
note to Order 20, r. 8 of the County Court Rules at p. 461 of the County
Court Practice 1974.
The first substantive question is whether the applicants can be brought
within the provisions regulating appeals to this court and whether they ^
are entitled to be considered as parties to the " proceedings " within the
definition of " party " in section 201 of the County Courts Act 1959, or
a " party aggrieved " by an order of the court who would require leave
to appeal in interlocutory proceedings. It is arguable that the applicants
are within those provisions. [Reference was made to Lewis v. Owen
[1894] 1 Q.B. 102; In re Securities Insurance Co. [1894] 2 Ch. 410 and
In re Markham, Markham v. Markham (1880) 16 Ch.D. 1.] D
On the main substantive issue the applicants have always conceded
that in law the court has power to order the production of untransmitted
as well as transmitted film, and they did produce all such material for the
Red Lion Square tribunal; but it may be that there is a distinction between
production for a public inquiry and for private litigation. The position
in English law on the balance of interests is stated in Attorney-General v. g
Mulholland; Attorney-General v. Foster [1963] 2 Q.B. 477, 489, 492; but
the court also has a discretion which it must exercise properly having
regard to all the relevant considerations, and here the judge did not take
into account the balance of interests and in particular the considerations set
out in the affidavit of the editor of I.T.N, which show a strong case that if it
became generally known that untransmitted film could be used in litigation p
or criminal proceedings it might be dangerous for camera crews and
contrary to public interest in other respects.
In a number of recent United States cases the courts balanced the
interests of newsmen keeping their sources confidential against the interest
in the administration of justice: see Baker v. F. & F. Investment (1972)
470 F. 2d 778, 783 and Democratic National Committee v. McCord
(1973) 356 F.Supp. 1394. Similar considerations should apply here G
where it is undesirable from many points of view that untransmitted material
should be shown; and the court should not order it to be shown unless
it is satisfied that the information is not obtainable from any other source
or by any other means, as, e.g. by calling the camera men themselves to
give evidence. When the subpoena is issued the judge should consider the
balance of public and private interest after hearing counsel for the person JJ
served and considering reasons why the subpoena should not issue auto-
matically: see Attorney-General v. Times Newspapers Ltd. [1974] A.C.
273.-
 27
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.)
The factors set out in the editor's affidavit are important on the
propriety of an inquiry into whether or not the summons should be issued.
Another point is whether the person seeking production can also require
production of the equipment to show the film and hear the video. The
applicants were not given an opportunity to show cause why they should
not comply with the summons in answer to the summons under section 84
of the County Courts Act 1959. There should be a proper investigation
B of the balance of interests in a case such as the present: see Norwich
Pharmacol Co. v. Customs and Excise Commissioners [1974] A.C. 133,182.
Gordon Slynn Q.C. with Michael Howard as amicus curiae. On the
question of jurisdiction and whether there is an appeal to this court by a
witness summoned to produce evidence, there is no such right to appeal
direct to this court against the issue of the summons either under the
c County Courts Act 1959 or otherwise. Order 20, r. 8 (1) of the County
Court Rules makes it clear that the registrar has no discretion about the
issue of the summons. The word used is " shall." It is more open to
question whether the summons can require the person served to exhibit the
material by providing equipment other than at his own premises. Such
power does not come within the terms of Order 20, r. 8, but it may be that
the court could make such an order under Order 13, r. 3 of the County Court
D Rules. It is not submitted that there is power automatically to order a wit-
ness to turn up at the court with both film and apparatus and the court may
wish to give guidance on that point. But the registrar has to issue the
summons and if a tape recording or a film is a " document " the procedure,
so far as the registrar is concerned, is precisely the same. In Grant v.
Southwestern and County Properties Ltd. [1975] Ch. 185 Walton J. held
E that for purposes of discovery a tape recording was a " document." It
would be unfortunate if " document" in the rules were held not to include
tape recordings and films for purposes of subpoena duces tecum.
Where objection is made to production, the appropriate procedure
would be to apply to the county court judge to set aside the summons;
and if he refused there could be an application to the Queen's Bench
p Divisional Court by way of certiorari; alternatively objection could
be raised in answer to a summons under section 84 of the Act of 1959
to show cause why a fine should not be imposed for non-production—
though that does not create a right of appeal as such. There is undoubted
power in magistrates under section 77 of the Magistrates' Courts Act 1952
to set aside a witness summons: see Reg. v. Hove Justices, Ex parte Donne
(Note) [1967] 2 All E.R. 1253, where this court relied on Rex v. Baines
G
[1909] 1 K.B. 258, the case in which Mr. Gladstone and Mr. Asquith
applied for subpoenas to be set aside: see per Bigham J. at p. 261 that
there is no distinction between civil and criminal proceedings. See also
Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Depart-
ment [1972] 1 Q.B. 232 on setting aside two witness summonses directed
to a chief constable on the ground of public interest. If an application
JJ can be made to magistrates to set aside a summons there must surely also
be an inherent power in a county court judge to set aside such a summons.
{Reference was also made to Order 34, r. 6 of the County Court Rules
and Forms 277 and 278, County Court Practice 1974.] None of the older
28
Senior v. Holdsworth, Ex p. I.TJS. (C.A.) [1976]
authorities suggest that where a person was subpoenaed to produce a
document he had to do so without argument, although the practice was not
to allow him to have counsel: see Doe d. Earl of Egremont v. Date
(1842) 3 Q.B. 609. There are dicta in some of the cases that there is no
right of appeal from the decision of a court that a document shall be
produced, but where there has been an order of the court this court may
lay down what may be done by way of appeal and what the correct procedure
should be. B
It does not appear from Order 20, r. 8 that the judge himself has
power to order the witness summons to issue and if that is what the judge
did in the present case it is doubtful whether he had power to do so; but
on analysis it does appear that he was merely trying to help the plaintiff
when he made the second order. If that is the position, there is no order
of the court capable of being appealed from to this court. The judge
was not asked to set the summons aside. If that had been done and he ^
had refused to do so, it might have been possible to appeal under section
108 of the County Courts Act 1959 against that refusal.
It is not sought to say that an application to set aside is not within
the definition in section 201 of the Act of 1959 of " proceedings " or
" matter," and it is clear that " party " is there defined in terms wide
enough to include a person applying to have a witness summons set aside, D
It is accepted that the court might treat these proceedings as if there
had been in substance an application to set aside, though the notice of
motion would require some amendment for that to be done. What is
sought is guidance for the future on the correct steps to be taken in
relation to a witness summons.
On the main point of substance the applicants accept that there is no
absolute privilege from production of untransmitted material. But in ^
principle the position of I.T.N., as also of the B.B.C., ought to be the
same as that of the journalists in Attorney-General v. Mulholland; Attorney-
General v. Foster [1963] 2 Q.B. 477 in relation to sources of information.
Even in the United States cases relied on for the applicants there was no
claim to absolute privilege; and in any event the position there is
different, being based on the First Amendment which provides the con- p
stitutional basis for freedom of speech; and in those cases it was said
that there had to be a balancing of the public and the private interests
and that a question " going to the heart of the party's case " must be
answered. That is very close to what Lord Denning M.R. said in Mul-
holland's case at p. 489. [Reference was also made to Garland v. Torre
(1958) 259 F. 2d 545 and Branzburg v. Hayes (1972) 408 U.S. 665.]
The photographer, the commentator and the journalist should all be ^
in the same position. They can all apply to have a witness summons
set aside where they can show, as in Rex v. Baines [1909] 1 K.B. 258,
that they have no relevant or material evidence, or that the summons
was not issued in good faith for the purposes of the litigation, or that it
is oppressive. There is an old rule that a subpoena duces tecum which
is oppressive can be waived on that ground. If it is a " fishing " summons, JJ
another approach may be required. A person seeking to compel pro-
duction of film and video can never know what has been filmed. He
can only say: " This man was there taking films." The onus of showing
 29
1 Q.B. Senior v. Holdsworth, Ex p. I.TJS. (C.A.)
that the public interest does not require production of the material
should be on the person seeking to withhold it, even though the person
seeking production is not entitled to see every scrap of paper or every
foot of film in the witnesses' possession. [Reference was made to Conway
V. Rimmer [1968] A.C. 910 and Penn-Texas Corporation v. Murat
Anstalt (No. 2) [1964] 2 Q.B. 647.] But for future purposes it should be
open to a party seeking production to be able to say " I believe a film
B was taken of an incident in which I was involved. Please bring that film
relating to that incident to court and produce it." Modern conditions
create new situations. In the Red Lion Square Inquiry the tribunal and
counsel saw all the film taken in order to get a complete picture.
It is not accepted that a distinction should be drawn between production
to a tribunal and production in private litigation. There is a public
interest involved in the administration of justice just as important as
C that involved in a public tribunal of inquiry. If objection is made to
production the judge himself can ask to see the film. One difficulty
is that with a document the judge can simply look at it whereas film
and tape have to be shown and heard. It is important to find a way in
which the television corporations will not suffer oppressive applications for
production, even though they may be under a duty to look to see what
jj) material they have. In most cases it is likely that the judge would
accept a statement that they had no relevant material; and if there was
doubt about relevance the judge himself could look at it. Everything
that can be said about documents can also be said about films and
recordings and where a subpoena was shown to be oppressive the judge
could order that it be not complied with: see Steele v. Savory (1891) 8
T.L.R. 94.
E On the particular grounds put forward by the applicants for not
producing the untransmitted material and the suggestion that the
cameramen could give evidence, they might not be good witnesses, for
all they see is what they see through the camera, and film is likely to
be more accurate than their recollection of events. Confidentiality
cannot normally be important in a case like the present and in any
p event is not a separate head of privilege: see per Lord Cross of Chelsea in
Alfred Crompton Amusement Machines Ltd v. Customs and Excise Com-
missioners (No. 2) [1974] A.C. 405, 433.
In the end the question of production is one within the discretion
of the trial judge. It is open to the witness to show special circumstances
which require that in the public interest specific material shall not be
shown, and the judge can evaluate its weight and relevance and whether
G or not to admit it.
Duncan Q.C. in reply. Though the applicants concede that a situation
may arise in which it would be proper to produce untransmitted material,
the general importance of the present case arises on the question of
how to appeal and on the proper procedure on a witness summons in
the future. It is now clear that the judge's second order for the production
JJ of all the negative of the entire festival was oppressive. It should have
been confined to the relevant incidents on the " break up " of the festival.
A further difficulty would arise if the court held that the judge's
order was a proper order to make, for he has now decided the case
30
Senior v. Holdsworth, Ex p. I.T.N. (C.A.) [1976]
without having the untransmitted material produced. How could the
applicants now comply with that order? The court is therefore asked
formally to treat the matter as though there had been an application to
set aside the judge's order and a refusal by him to do so and the notice
of motion will be amended to accord with that.
The unwritten right to freedom of speech in this country is no less
valid than the First Amendment in the United States cases; and the
court has to balance the private and public interests just as do the B
courts in the United States. The person seeking production should be
under a duty to pinpoint the material required, for it is undesirable in
the public interest that untransmitted material should be ordered to be
produced unless the court is satisfied that there is no other means of
getting the evidence. If the court lays that down as the proper practice
the applicants will be satisfied.
Cur. adv. vult. C
March 26. The following judgments were read.

LORD DENNING M.R. In August 1974 there was a Pop Festival in

Windsor Great Park. There were serious disorders. On August 29 the
police intervened to stop them. The camera men took cinematograph j)
pictures of what happened. These were shown on television news.
Afterwards three of those present at the festival brought an action in
the county court against the chief constable. They alleged that they had
been assaulted by the police. One of them, Mr. Albery, said that police-
men carried him away from the scene and that one of them hit him on
the nose. He, with the others, acted in person. Before the hearing Mr.
Albery went to the offices of the county court and got a summons issued E
to produce documents. It was addressed to Mr. David Phillips, the main
producer of Independent Television News. It required him to attend at
the trial and bring with him:
" . . . all film and video taken of the break-up of the Windsor Great
Park Festival on August 29, 1974. Both the video and film that was
broadcast and the video and film that was not: and equipment on F
which to show thefilmand video."
The trial opened on January 6, 1975. Mr. Albery and the others acted
in person. Counsel appeared for I.T.N. He applied to set aside the
summons because Mr. Phillips had no knowledge of the event and was
an employee who had no authority to show the film.
The judge saw that this objection was a good one. He determined to G
overcome it. After hearing counsel for I.T.N., he decided that the entire
film should be shown. He directed a new summons to be issued, addressed
to I.T.N. Ltd. It required them to appear and "Produce all the film
negative of the events of the Windsor Festival 1974. Such film to be
shown at the I.T.N. Studio in London."
On the next day, January 7, 1975, the judge went to the I.T.N, studio, JJ
He was shown the film as it had been transmitted on the I.T.N, news;
but he was not shown the other parts of the film which had not been
transmitted. .
 31
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) Lord Denning M.R.
. On the following day, January 8, 1975, I.T.N, asked for leave to appeal
against the order to show all the film. The judge refused leave. There-
upon the editor of I.T.N, news, Mr..Ryan,, went'to the court and explained
their reasons for not showing the untransmitted portion of the film.1 The
judge did not accept these explanations. He ordered the film to be pro-
duced for showing next morning. I.T.N, did not produce it. They told
the court that they had decided not to produce it until an appeal had been
B heard.
The judge then proceeded to hear the case without the untransmitted
film. He decided in favour of Mr. Albery against the chief constable and
awarded him £75 and costs. The chief constable has not appealed against
the decision. So the case itself is at an end. But not so far as I.T.N.
are concerned. On January 16, 1975, I.T.N, were summoned to appear
P at the county court with a view to being fined for disobedience.
I.T.N, seek to appeal to this court. They are very concerned at the
course taken by the judge. They wish to know whether they were obliged
to obey his order: and whether they were guilty of contempt of court.
They ask for guidance as to their duty in case a similar order is made
again.
There are two points to be considered. First, the jurisdiction of the
D court to order the production of the film and show it. Second, if.the
court can order it, what are the principles it should apply.

1. Jurisdiction
In the ordinary way a summons to produce documents is issued out of
the county court on the authority of the registrar: see Ord. 20, r, 8 (1) of
E the County Court Rules. If the documents are in the possession of a
limited company, such as I.T.N., the subpoena is to be served, on the
company itself, requiring it, by its proper officer to produce the documents:
see Penn-Texas Corporation v. Murat Anstalt {No. 2) [1964} 2 Q.B. 647, 663.
If the person summoned refuses or neglects, without sufficient cause, to
produce the document, he is liable to be fined up to £50: see section 84
of the County Courts Act 1959 (as amended).
If the person summoned takes objection to it, he can wait till the trial
and take his objection there. In the old days, if he did this, he had to do
it himself and was not allowed counsel to do it for him: see Doe d.
Rowcliffe v. Earl of Egremont (1841) 2 Moo. & Rob. 386. Nowadays, of
course, he can do it by counsel. The better course is, however, for him
to apply before the trial to set aside the summons. The application is
G heard by the county court judge. The summons will be set aside if the
witness, has no material documents or if it is oppressive or there is any
other sufficient reasons to set it aside: see Steele v. Savory (1891) 8
T.L.R. 94 and Reg. v. Lewes Justices, Ex parte Secretary of State for
Home Department [1972] 1 Q.B. 232, 240, 243.
Under Ord. 20, r. 8, of the County Court Rules the summons is limited
JJ to " documents." " Documents " has been given a wide meaning so as to
include any material on which there is writing, such as parchment, paper
or metal: see Rex v. Daye [1908] 2 K.B. 333, 340; or on which there
are pictures or drawings which give information, such as photographs and
32
Lord Denning MJt. Senior v. Holdsworlh, Ex p. I.T.N. (C.A.) [1976]
plans: see Hayes v. Brown [1920] 1 K.B. 250, 251. It has recently been
held by Walton J. that, so far as discovery is concerned, " documents "
include tape recordings: see Grant v. Southwestern and County Proper-
ties Ltd. [1975] Ch. 185. I doubt, however, whether this applies to
a subpoena duces tecum. It must be remembered that a subpoena
duces tecum is issued with the authority of the court, but it does not, as a
rule, come under the eye of the judge or any judicial officer. It is issued
by a clerk in the office as a ministerial duty. The litigant, who may be B
acting in person, fills in the form with the name of the witness and the
documents that he desires, and then the clerk stamps it with the court
seal. If the witness does not obey it, he is liable to a fine. If he objects
to it, his only remedy is to apply to the judge of the court to set the
summons aside. That is the first time that any judicial officer sees any-
thing of it. This procedure has been followed for centuries in the case of
ordinary documents. But I do not think it should be followed in the case ^
of tape recordings or films. These are modern inventions which require
special equipment to make them speak or be seen. The courts are not
provided with the equipment. The practical course would be to order
the witness to bring not only the tape recording or the film, but also the
tape recorder, or the projector and the screen. But the ordinary form of
subpoena duces tecum does not provide for this. This equipment cannot D
by any possibility come under the description of " documents." So I
would not hold it covered by the ordinary form.
This does not mean, however, that the court has no jurisdiction in the
matter. These new inventions are capable of providing most valuable
evidence: and the court should have the means of making them available.
We are the masters of our own procedure: and have authority to adapt
it to meet the needs of the time. In my opinion the High Court has an
inherent jurisdiction to make orders for the production and playing of tape
recordings and for the production and showing of cinematograph films,
and the county court can adopt and apply that jurisdiction under section
103 of the County Courts Act 1959 (as amended). A witness may be
required to provide not only tape recordings and films, but also the
apparatus that is required to operate it. This jurisdiction should be F
exercised by the county court judge himself and, in the High Court, by a
master. The application should be made on notice to the witness: so that
he can raise any point that he desires. On such an application the judge
should have a discretion to make such order as he thinks fit. He can order
the witness to produce the tape recording or the film, and also the necessary
apparatus, and order it to be played over or shown at such place as may be G
most convenient. And, of course, all expenses must be paid. But the
judge may refuse to make an order if he thinks it would be oppressive or
unreasonable or otherwise not proper to be ordered.
If the judge makes an order with which the witness is aggrieved, the
witness will have an appeal to this court. Although he is not a party to
the suit, he is a person who is aggrieved by the order: and he is entitled, JJ
by leave, to appeal against it: see In re Markham, Markham v. Markham
(1880) 16 Ch.D. 1 and In re Securities Insurance Co. [1894] 2 Ch. 410. He
must obtain leave either from the judge or from this court: but he cannot
 33
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) Lord Denning M.R.
appeal without such leave: see section 31 (1) (i) of the Supreme Court of
A
Judicature (Consolidation) Act 1925.
I may here mention a point arising on the County Courts Act 1959 (as
amended). By section 108, if a party to any proceedings is aggrieved with the
determination of the judge in point of law, he is entitled to appeal to the
Court of Appeal. This applies to interlocutory orders as well as final orders.
The section does not in terms say that, in interlocutory proceedings, leave
B is required. But I think that these are governed also by section 31 (1) (0
of the Act of 1925. In my opinion leave is required from the county court
judge or this court for appeals from interlocutory orders, even on a point
of law.
Returning now to the present case, the first order of December 9,
1974, was bad: because it was directed to the wrong person. An
application was made to the judge to set it aside, and in effect he did
so. The judge then made an order on January 6, 1975, on I.T.N, that
the whole film be produced and shown. For the reasons I have given
I think a judge had jurisdiction to make that order. Whether it was
rightly made is another matter. The order was not accepted by I.T.N.
They applied for leave to appeal. It was refused. They next applied,
in effect, for it to be set aside. The judge refused and ordered the
D film to be produced next morning.
There were thus two orders made by the judge: one for production
and showing of the film: the other refusing to set it aside. On each
of these orders I think that I.T.N, were entitled to appeal to this court
on getting leave from the county court judge or from this court.
I am of opinion that this court can and should give leave to appeal
from the judge's order and should hear the appeal.
£
2. The principles
We were told that the British Broadcasting Corporation does not
keep untransmitted film. But I.T.N, do. Their attitude is this: I.T.N.
are quite ready to show film which has been transmitted as part of
their news items. But they have considerable reservations about show-
p ing untransmitted film. They desire guidance as to the circumstances in
which they should be required to produce it and show it to the court.
They do not claim an absolute privilege, but they draw attention to
several matters which may make it undesirable for production to be
ordered. First, they point to their duty under the Independent Broad-
casting Authority Act 1973. It is to present all news "with due
accuracy and impartiality." But I do not see that that affects our
G present question. They do this by their editing process, in which they
leave aside the untransmitted portion.
Next, they say that if they were to produce untransmitted film, their
reporting teams might be exposed to violence more than they are at
present. I do not myself see the force of this point. If a crowd of
people attack a cameraman, it is because they do not want their actions
JJ to appear on the transmitted part of the news: and not because of the
untransmitted portion.
Another and more telling point is that untransmitted film, or " off-
cuts " as they are called, may be grossly misleading. They are snippets,
Q.B. 1976—2
34
Lord Denning M.R. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) [1976]
that is, anecdotal fragments which have been rejected in the editing
process as unsuitable. They are incomplete, out of context, and out A
of sequence. They may actually create a false impression, as by show-
ing only half of an incident. For instance, a piece of film may show a
policeman hitting Mr. Albery on the nose, but not the provocation which
led to it. If any weight is to be given to untransmitted film, I.T.N, say
it requires to be explained by those specially versed in the editorial
process. B
Furthermore, it would often be oppressive to require the I.T.N, to
show the whole of the untransmitted film. Take the incident in which
Mr. Albery took part. It may only have been a second or two out of
many minutes of film. The cameramen do not know what Mr. Albery
looks like, nor do those who edit the film. Are they to show the whole
of the untransmitted film so as to see if there was a photograph of the
incident? Are they to show it before the trial to the parties or the C
advisers so as to see if they recognise Mr. Albery on it? If that had
happened in the present case, we are told that it would have been of
no use at all, because the untransmitted film does not show this incident,
or any part of it.
Next there is the special position of the journalist or reporter who
gathers news of public concern. The courts respect his work and will rj>
not hamper it more than is necessary. They will seek to achieve a
balance between these two matters. On the one hand there is the
public interest which demands that the course of justice should not be
impeded by the withholding of evidence: see Reg. v. Lewes Justices,
Ex parte Secretary of State for the Home Department [1973] A.C. 388, 401
by Lord Reid. On the other hand, there is the public interest in seeing
that confidences are respected and that newsmen are not hampered by E
fear of being compelled to disclose all the information which comes
their way: see Democratic National Committee v. McCord (1973) 356
F.Supp. 1394, in the United States. As we said in this court as to oral
testimony of a newsman:
" The judge . . . will not direct [him] to answer unless not only it
is relevant but also it is a proper and, indeed, necessary question F
in the course of justice to be put and answered": see Attorney-
General v. Mulholland [1963] 2 Q.B. 477, 489.
So also with production of a film.
Lastly, I.T.N, told of their existing practice. Hitherto when I.T.N.
have been asked for information, they have, at their own expense, shown the
transmitted film in their offices: and they have given the names and ^
addresses of camera crews in order that statements could be taken from
them of what they saw. They could refresh their memories from the film,
and their evidence may be of more use than the untransmitted film itself.
In the light of all these considerations, I think that, on due notice
being given, the courts have the power to order the I.T.N, to produce
and show the untransmitted film when the course of justice so requires j{
—of course, on all their expenses being paid just like conduct money. But
the court should exercise this power only when it is likely that the film will
have a direct and important place in the determination of the issues before
 35
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) Lord Denning M.R.
the court The mere assertion that the film may have some bearing will not
A be enough. If the judge considers that the request is irrelevant, or fishing,
or speculative, or oppressive, he should refuse it.
In this particular case, it was mere speculation that the untrans-
mitted film would contain a photograph of the incident: and it was
oppressive to require the whole film to be shown when only one small
incident was involved. As it now appears, it contained nothing about
B it. I would allow the appeal and set aside the judge's order.

ORR L.J. The facts relevant to this appeal may be summarised as

follows. On the opening of the hearing, on January 6, 1975, in the
Slough County Court, of an action in which a Mr. Albery was the third
of three plaintiffs, none of them legally represented, and claimed
damages for an alleged assault upon him by a police officer in the course
C of the breaking up of the Windsor Pop Festival, 1974, counsel for I.T.N.,
who were not a party to the action, applied to Judge Duveen to set aside
a summons duces tecum, previously issued by the registrar upon Mr.
Albery's application, for the production of the film, both transmitted and
untransmitted, taken by I.T.N, on that occasion. One of the grounds of
counsel's application was that the summons was wrongly addressed, not to
j) I.T.N., but to a member of their staff who had not been concerned at all in
the filming, and the judge directed the issue and immediate service of a
fresh summons addressed to I.T.N, and, because counsel had stated that
arrangements would be made by I.T.N, for the film to be shown by them
at their studio in London on the following day, January 7, the summons
included a requirement to that effect.
On January 7 the transmitted film was duly shown but it was intimated
E
to the judge that I.T.N, had decided not to show the untransmitted film.
On the following day, the judge having called for the production of the
untransmitted film, counsel for I.T.N, applied for leave to appeal, which
was refused: and later Mr. Ryan, editor and chief executive of I.T.N., who
had only the day before returned to work after sick leave, attended with
counsel for I.T.N, and stated grounds of objection to the requirement that
p the untransmitted film should be produced; but the judge took the view
that no sufficient grounds had been shown why it should not be produced.
The first question which arises in the appeal is whether in law any
appeal lies against the judge's direction that a fresh summons duces
tecum should issue. It has been argued by Mr. Duncan that an appeal
lies on the ground that I.T.N., although not a party to the action, are
a party aggrieved by the direction: but in my judgment it is clear that
" the remedy of a person served with a witness summons or a summons duces
tecum under Order 20, r. 8, of the County Court Rules, the issue of which,
in my judgment, is obligatory on application duly made and is an
administrative and not a judicial act, is to apply to set it aside, as
counsel for I.T.N, properly did in the case of the first summons, and
not by way of appeal; there being, if the court should refuse to set it
JJ aside, a right of appeal arising in the proceedings or matter constituted
by the summons itself. I am, however, prepared to deal with this issue
on the basis that Mr. Ryan's application was, in form as it was in sub-
stance, to set aside the summons, and on that basis I agree that the
36
Orr LJ. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) [1976]
appeal should be allowed on the ground that the second summons was
not, like the first, limited to the production of film taken during the
breaking up of the festival, but by its terms required production of the
film " of the events of the festival" which had in fact continued for
three days, on each of which we have been told that filming took place.
It may well be that it was through an oversight that the second
summons was couched in these wide terms, but in my judgment it was
in that respect oppressive and on that ground alone the appeal must, B
in my judgment, succeed.
I would add only two observations with regard to this part of the
case. In my judgment the film in question plainly is a " document" for
the purposes of Ord. 20, r. 8 of the County Court Rules, and in this
respect I adopt the reasoning applied by Walton J. in Grant v. South-
western and County Properties Ltd. [1975] Ch. 185, to a tape recording.
I cannot, however, accept that Ord. 20, r. 8 entitles the court to order C
an addressee of a summons duces tecum to exhibit as well as produce
a film. In most cases this restriction will not give rise to any difficulty
since arrangements can be made to hire the necessary apparatus. In
a case, however, where the exhibition of a film requires special equip-
ment not obtainable, or not readily obtainable, elsewhere I think that
the county court would have power under Ord. 13, r. 3 or in its inherent JJ
jurisdiction, although not under Ord. 20, r. 8, to make an order that
the addressee of the summons should exhibit the film, on the basis that
any expense so incurred should be treated as part of the costs of the
action and should be reimbursed to the addressee.
The second issue in the appeal, which involves matters of substance
as well as procedure, is whether the judge should in all the circum-
stances, and in the light of the objections made by Mr. Ryan, have set E
aside the summons. The objections in question are set out in Mr.
Ryan's affidavit and I need not repeat them. In essence they are that
l.T.N. have hitherto successfully adopted a policy of refusing to disclose
untransmitted film although they agreed to do so in the Red Lion Square
Inquiry (Cmnd. 5919), and it is claimed that to depart from this policy
could conflict with their duties under the Independent Broadcasting p
Authority Act 1973; would involve difficulties for them and their
camera teams and possible dangers to the latter; and could in some
circumstances, though it was not suggested that this applied in the
present case, involve a disclosure of confidential sources.
I accept the sincerity of these objections, but Mr. Duncan carefully, and
in my judgment rightly, refrained from suggesting that there are no circum-
stances in which it would be right to require disclosure of untransmitted film "
for the purpose of legal proceedings, and limited his argument to the pro-
position that it is only in exceptional circumstances that such a requirement
should be imposed.
Some of the arguments by which he sought to support this proposition
I am wholly unable to accept. One was that since I.T.N, are required by
section 4 (1) (b) of the Independent Broadcasting Authority Act 1973 to JJ
satisfy themselves that all news is presented with due accuracy and
impartiality, and since the transmitted film has been selected on that basis,
the rest of the film ought not to be disclosed. But an incident which may
 37
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) Orr LJ.
properly have been omitted from the transmitted film, for instance, because
it might produce a false impression of the overall scene, may be of great
importance for the purposes of a criminal or civil case or a public inquiry,
and in my judgment it would be in no way inconsistent with I.T.N.'s
statutory duty of impartiality that untransmitted film of such an incident
should be disclosed for the purpose of such proceedings. The possible
danger to cameramen, however regrettable, can, as it appears to me, as
B easily arise from disclosure of transmitted film, and on principle I cannot
see why, as respects confidentiality of sources, the camera team should be in
any more privileged position than a journalist, though I respectfully agree
with the view of Donovan L.J., in Attorney-General v. Mulholland;
Attorney-General v. Foster [1963] 2 Q.B. 477, 492, that in this field there
should be some degree of residual discretion in the court of trial or the
tribunal.
A further argument of Mr. Duncan was that as a rule it would be wrong
to call for production of the film when a member of the camera team could
be summoned to give oral evidence as to what had happened. But it seems
to me that in most cases such a witness, when asked about a particular
incident among many which may have taken place in the course of prolonged
filming, would be bound to say that, apart from what he has since observed
D on a running over of the film, he had no recollection of the incident in
question, so that in the end the film would be the vital evidence. More-
over, in so far as I.T.N, rely on possible dangers to cameramen, I should
have thought that greater danger might well be caused by the witness being
called than by production of the film.
There remains the consideration, although not specifically relied on in
£ the grounds of appeal, that the service of a summons duces tecum may
involve I.T.N, in running over great lengths of film in an endeavour to
ascertain whether they embrace a particular incident. For this reason I
consider that it should be incumbent on anyone applying for the issue of
such a summons to give to I.T.N, as clear information as he can as to the
time and nature of the incident in question. But more than this, in my
judgment, he cannot reasonably be expected to do, and it would in my
view be wrong to require him to state as a fact that the incident in question
was filmed, for this would be to impose upon him a heavier burden than
rests upon an applicant for production of written documents.
For these reasons I have come to the conclusion that the objections
advanced by I.T.N, to the disclosure of untransmitted film must give way
to the requirements of justice. We were told by Mr. Duncan that the
G corporation do not object so strongly to such disclosure for the purposes
of a public inquiry as they do to its disclosure for the purposes of a criminal
or civil trial; and they are entitled to their views on that matter; but in my
judgment any rule which compelled disclosure for the purposes of a public
inquiry but not in a criminal trial, for example for an offence of wounding
in the course of a demonstration, which might carry a long prison sentence,
JJ cannot possibly be justified, and I do not consider that the position can be
different on a civil claim even where, as here, for modest damages, for it
is an established principle of our law that parties to litigation should, subject
to the rules of privilege, be entitled to adduce any relevant evidence.
38
Orr LJ. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) [1976]
I consider, however, that, as already stated, it should be incumbent on
anyone applying for a summons duces tecum in respect of television film
to give I.T.N, as clear information as he can as to the time and nature of
the incident in question, and that on an application to set aside the sum-
mons as being oppressive, the court or tribunal should satisfy itself that this
has been done and should also consider carefully any special hardship or
difficulties that may be involved for I.T.N, in the particular case. Moreover,
I consider that the existing procedure for securing the production of B
documents in the county court (whereby the registrar is directed to issue a
summons on application being made to him, and non-compliance with the
summons, in the absence of an application to set it aside, may lead to the
imposition of a fine), and also the corresponding procedure in the High
Court, are not really appropriate for the purposes with which we are here
concerned, and that it would be a desirable reform of the law to provide
that, whenever it is sought to compel production of film from I.T.N.,
application should be made to the registrar or master by way of an inter
partes summons of which notice would be given to I.T.N, so that they can
attend by counsel and make such representations and give such information,
as to whether the film includes or does not include the incident in question
and as to its probative value, as they may think appropriate. In these
circumstances the court, without any derogation from its powers, would be D
able to give directions appropriate to the particular case, and I believe that
such a procedure would do much to allay the present misgivings of I.T.N.
I would add in conclusion that whenever television film is admitted in
evidence it is essential that the court or tribunal should bear in mind that
it may be misleading because, for example, it may not include matters
previous to the incident itself but which may none the less have an g
important bearing on the incident. I cannot, however, with great respect
for I.T.N.'s experience in these matters, accept that they should be the sole
arbiters on the question whether film should, on this or any other ground,
be withheld from use in legal proceedings.
For these reasons I would allow this appeal on the narrow ground which
I have indicated.
F
SCARMAN L.J. This appeal by I.T.N, against a witness summons issued
upon the personal direction of the county court judge raises two questions
—one narrow and already fully covered; the other of far-reaching
importance, should this court uphold the submissions of I.T.N.
Relevant facts G
Diana Senior, Heathcote Williams, and Nicholas Albery sued David
Holdsworth, the chief constable of the Thames Valley Police Force, in the
Slough County Court, claiming damages for assaults alleged to have been
committed upon them by police officers breaking up the Windsor Pop
Festival on August 29, 1974. The festival lasted several days; but Nicholas
Albery's case was that on the final day he was punched on the nose by a JJ
policeman who had no right or lawful excuse for using force upon him.
Mr. Albery sought to obtain by a witness summons the production at trial of
all the film and video tape taken by I.T.N, of the break-up of the festival.
 39
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) Scarman LJ.
His summons, issued on December 9, 1974, was for a number of reasons,
invalid: so on January 6, the judge, in the course of the trial, directed the
issue of a second summons, which was in these terms: " to produce all the
film negative of the events of the Windsor Festival 1974, such film to be
shown at the I.T.N, studio in London."
I.T.N., making it clear that their objection was to the production of
untransmitted film (they did not object to the production of material which
B had been broadcast), refused to comply with the summons. The material
was not produced but the trial proceeded^ and Nicholas Albery established
his cause of action and recovered damages.
The County Court Rules
Where a party to a county court action desires a person to be summoned
C as a witness or to produce a document, the registrar shall, on the application,
issue a witness summons: Ord. 20, r. 8 (1) of the County Court Rules. The
applicant has to produce the plaint note, which itself will not have been
delivered to the plaintiff until he has filed in the court office a praecipe
(that is, a request for a summons against the defendant) and two copies
of his particulars of claim: Ord. 6, r. 3; Ord. 7, r. 1 (1) and Form 7. Thus
j-j however early in the action the application for a witness summons is made,
the court knows the nature of the claim being made. In disputed cases, it
is likely to know also the nature of the defendant's case: for, ordinarily,
an application for a witness summons is unlikely to be made until after
close of pleadings. The situation is similar to, but not identical with, that
of the High Court, where a subpoena issues as a matter of course from the
appropriate office without any order of the court and without the court
E having necessarily any but the vaguest information as to the nature of the
case: R.S.C., Ord. 38, r. 14.
I.T.N. submit that, whatever be the position in the High Court, the
issue of a witness summons in the county court is a judicial act by a
judicial officer, who has a discretion to refuse it. The submission is
entitled to serious consideration: yet, I think it clear that the County
F Court Rule, upon its true construction, requires of the registrar an
administrative, not a judicial act. This accords with the principle. The
right of access to the High Court is not subject to judicial restraint: see
Clarke v. Bradlaugh (1881) 8 Q.B.D. 63. The right to compel the attend-
ance of witnesses and the production of documents, without which the
right of access to the court would be useless, is also free of judicial
restraint in the High Court: see R.S.C., Ord. 38, rr. 14 to 19. The court
® has no inherent power to deny either of these rights: and the issue of each
process (writ of summons, writ of subpoena) requires no order by the
court. It would be surprising if the situation was different in the county
court. Clearly there is no difference in the right to go to court. Is the
language of the County Court Rules so different that we must infer that
the county court has the power to refuse the issue of a witness summons,
H though the High Court has not? I do not think so. The County Court
Rule (Ord. 20, r. 8) says that the registrar shall issue the summons: it
does not require of him an order made judicially, but lays on him a duty
to be performed in the office upon production of certain specified docu-
40
Scarman LJ. Senior v. Holds worth, Ex p. I.T.N. (C. A.) [1976]
ments. This is a classic form of administrative duty. The difference
between the,Rules of the Supreme Court and the County Court Rules may
be explained by the difference in administrative structure of the.two courts:
there is no need to read into the County Court Rule a judicial jurisdiction in
the county court which the High Court does not possess—furthermore, a
jurisdiction which would restrict the rights of the litigant. There are, of
course, safeguards against abuse, but they are spelt out either by statute
or by rule of court or by the common law. A good illustration, so far B
as right of access to the courts is concerned, is the restraint put upon
vexatious litigants: section 51 of the Supreme Court of Judicature (Con-
solidation) Act 1925. The Bankers' Books Evidence Act 1879 is an
example of the law protecting from production a class of documents.
When one turns to the compelling of evidence, one finds that in the High
Court a subpoena may be set aside upon application by the person upon
whom it is served. If it is clear to the court that the subpoena has been C
issued not to obtain relevant evidence but for some other purpose (for
example, to embarrass politically the person served), and that the intended
witness has no relevant evidence to give, it will be set aside: R. v. Baines
[1909] 1 K.B. 258.
The court can also set aside a subpoena duces tecum if it thinks it
oppressive: Steele v. Savory (1891) 8 T.L.R. 94: and there are other j)
grounds, well known to the law, upon which documents may be withheld
from production: see The Supreme Court Practice (1974), notes 38/14-19/3.
The County Court Rules do not, in terms, provide for an application to
set aside a witness summons: but in any case not expressly provided for,
the general principles of practice in the High Court may be adopted:
section 103 of the County Courts Act 1959, The note to Ord. 20, r. 8
in the current County Court Practice assumes the applicability of High E
Court practice—correctly, in my opinion. The note requires, however,
to be brought up to date: for I agree with the opinion expressed by
Lord Denning M.R. that, whatever may have been the practice of the
Queen's Bench in 1841 (see Doe d. Rowclifje v. Earl of Egremont (1841)
2 Moo. & Rob. 386), today the witness has the right to be legally represented
upon his application to the court to set aside the subpoena or the summons, p
In my view, therefore, the principle is the same in the county court
and High Court. The subpoena or summons issues as of course without
the need for any order of the court: but the witness or person served
has the right to apply to set it aside. In the present case, it is conceded
that I.T.N, may be treated as one who has applied to set aside the sum-
mons and has been refused. It is also conceded that an appeal lies in
such circumstances to this court. G

The narrow question

I.T.N. submit that the summons is oppressive as requiring them to
produce material that cannot be relevant. The judge's summons required
them to produce all the film of the events of the pop festival. But the
plaintiff's case was concerned only with one incident on one day—the JJ
punch on his nose on August 29. Nobody suggested, or could suggest,
that what happened on the previous days of the festival would be relevant
to the issue which the judge had to try. The summons as drafted was,
 41
1 Q.B. Senior v. Holdsworth, Ex p. l.T.N. (C.A.) Scarman LJ.
in my judgment, oppressive and should have been either amended or set
aside. But the judge has acted under section 84 of the County Courts
Act 1959, calling upon I.T.N. to show cause why they should not be fined.
I.T.N., in my judgment, are entitled to have the summons set aside.
Two further points have been canvassed. The first is whether film
is a document: for the reasons given by Orr L.J., I think it certainly is.
The second is whether the court has power to order the witness to exhibit
B the film he possesses or controls. I.T.N, were at all times willing to
exhibit it, if they were bound by law to produce it; but I agree with
Orr L.J. that the court has power to give directions for its exhibition:
County Court Rules, Ord. 13, r. 3. This is a power unconnected with
the issue of the witness summons, and exerciseable judicially by the court
upon application or of its own motion. The court would ordinarily require
to be satisfied that the evidence of the film was likely to be useful to the
^ court and could not be conveniently exhibited by the party applying for
its production; it should put the applicant party upon terms as to costs
which would protect against expense the person being directed to exhibit
the film—in this case the I.T.N. The same power exists in the High
Court: R.S.C., Ord. 25; and under its inherent jurisdiction to order the
course of litigation so as to do justice between the parties;
D
The broad question
I.T.N, do not contend that they enjoy an absolute privilege recognised
by the law against production of their film. But they submit that the
court has a discretion to refuse to order production if upon balance of
public advantage and private right it should come to the conclusion that
E the balance tilts in favour of non-production. They rely on the Indepen-
dent Broadcasting Authority Act 1973. They also draw attention to the
judgment of the Court of Appeal in Attorney-General v. Mulholland;
Attorney-General V. Foster [1963] 2 Q.B. 477, in which Lord Denning M.R.,
at p. 489, said of clergymen, bankers, doctors and journalists that the court
will not direct a witness to answer a question unless it is relevant, proper
and necessary in the interest of justice. Donovan LJ. at p. 492 did not go
F so far: he added the gloss that an answer should be directed if the question
was relevant and would " serve a useful purpose in relation to the proceed-
ings in hand."
Further, I.T.N, place reliance on a number of American decisions in
which the existence of a duty to weigh in the balance public advantage and
private right has been recognised. Given the existence of the wide
G discretion for which they contend, they submit that their untransmitted
film should not be produced. Basically, their grounds are two: (1) that
their film crews would be endangered in situations of public disorder, if
the crowd knew or believed that their film might later be used in
evidence; and (2) that the film, being unedited, would give a disjointed,
distorted and therefore a dangerously prejudicial picture of events.
H However skilfully it is formulated, their case is that the law recognises
a special, or privileged, position for the press. The American cases—for
example, Baker v. F. & F. Investment (1972) 470 F. 2d 778 and
Democratic National Committee V. McCord (1973) 356. F.Supp. 1394
42
Scarman LJ. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) [1976]
certainly proceeded on that basis: but they were decided against the
A
background of the First Amendment, a constitutional provision, which
has, as yet, no parallel in this country. I do not think that English law
has gone beyond the limited discretion recognised in Mulholland's
case [1963] 2 Q.B. 477 as available to protect certain professional con-
fidences. The difference in emphasis between the law of the United
States with its constitutional background and English law is well illus-
trated by contrasting the language of the judges. Both legal systems B
stress the importance of the fair administration of justice. But in
Baker's case it was said that a question must be answered if it goes
" to. the heart of the party's case," whereas in Mulholland's case
Donovan LJ. said an answer was required if it would serve a useful
purpose in the proceedings. Mulholland's case reveals how far the
courts can go—no further, in my judgment, than Donovan L.J.'s gloss
on the words of Lord Denning M.R. The general issue of public advantage C
and private right—that is, the balancing of the public interest in protecting
the right and duty of the press to seek out and declare the truth, against
the public interest in maintaining the right of the litigant to the production
in court of the evidence, oral and documentary, he believes necessary to his
case—is not yet one which the law entrusts to the courts: and I am totally
unable to construe the Independent Broadcasting Authority Act 1973 as j)
conferring upon the independent broadcasting authority a position of
privilege denied so far to the other media of public communication.
Mulholland's case [1963] 2 Q.B. 477 was concerned with questions
put to a witness and his duty to answer. I can see no reason why the
discretion, which the court held it had to protect a journalist witness,
should not extend to the protection from production of the documen-
tary material of press and broadcasting media. But the discretion is a E
limited one: not wide enough to cover either of the grounds put forward
in this case for its exercise. I.T.N.'s first ground, if valid, would be far-
reaching: logically it would mean that all material, transmitted as well
as untransmitted, should be withheld: for the crowd is not to know
what will be shown and may be expected to be enraged by the taking
of all or any of the film, whatever be the subsequent editorial decision, p
And, if cameramen and film crews are to be protected, why not also
journalists and reporters? Had our courts the wider discretion for
which I.T.N, contends, this ground might be available; but under.the
existing law it is not. The second ground is no reason at all: the courts
often have to weigh and decide what inferences, if any, may be drawn
from disjointed and distorted pieces of evidence. And it is for the
court, not I.T.N., to determine what is relevant and helpful to the G
court and what is not. In my judgment, therefore, the I.T.N, submis-
sions on the broad question fail. There is no such privilege as that for
which they contend. The court does have a residual and limited dis-
cretion to set aside a summons to produce the documents of journalists
and broadcasters not otherwise privileged from production; but the
grounds adduced in this case are not sufficient to invoke it. u
Conclusion
Film is a class of document. The law, as it now stands, does not
 43
1 Q.B. Senior v. Holdsworth, Ex p. I.T.N. (C.A.) Scarman LJ.
enable the court to refuse to issue a witness summons (or subpoena)
"• for the production of documents upon due application. The remedy
available to the person served is to move to set the summons aside.
Upon such an application the court will set it aside if what is sought is
irrelevant, oppressive, an abuse of the process of the court or recog-
nised by the law as being privileged from production. Further, even if
the document sought be relevant and not otherwise privileged from
g production, the court has a residual discretion in certain circumstances
to protect the document and set the summons aside. The law does,
therefore, offer the press and broadcasting authorities some protection
against oppressive applications and abuse of process. It is arguable
that more is needed: but this is, I believe, a problem for law reform,
and may have to be considered in a wider context than this case. It
could be solved by enacting for the protection of the media a statute
C analogous to the Bankers' Books Evidence Act 1879 (though its provi-
sions would be different). I ask two questions. Why should not the
burden of showing cause be placed squarely upon the party who seeks
the production of the film or other working papers of the press, the
radio and television? And why should not the law formulate guide
lines designed to hold fairly the balance between the right of the
£> litigant and the protection of the media? In the Red Lion Square Inquiry
(Cmnd. 5919, Appendix E, p. 54) the same problem arose and was
solved by a private viewing of the material by the judge taking the
inquiry, who was then in a position to decide whether or not it should
be produced at the inquiry. He decided it should be, and the I.T.N.
produced it (without prejudice to their legal contentions). This course
is not open to the court in litigation: but consideration could well be given
E to a reform of the law under which the applicant party would be
required to satisfy the court before he could obtain his summons to
produce. If such a reform should be contemplated, it should carry with
it a formulation of guide lines as to the matters to be considered by the
court upon such an application. I would not anticipate that it would
result in any real curtailment of the right of a litigant to put his
p evidence before the courts but the press and broadcasting authorities
would obtain a measure of protection greater than the law now offers,
and one to which I think they have a claim worthy of serious con-
sideration. Nevertheless, in this case, upon the narrow ground, I would
allow the appeal and set aside the witness summons.

Appeal allowed.
G Order of judge and summons
set aside.
No order as to costs.

Solicitors: Biddle & Co.; Treasury Solicitor.

M. M. H.
H