Former Times lawyer of 33 years standing Alastair Brett was subject to some of the most punishing questioning of the hacking inquiry so far as Lord Justice Leveson dissected the paper’s “utterly misleading” evidence to the High Court in 2009.
The Times successfully defended an injunction bid from blogger Richard Horton in June 2009 on the basis that it had obtained his named though publicly available sources, not revealing that then reporter Patrick Foster had in fact illegally hacked Horton’s email account.
In the days running up to litigation, on 1 June, Horton’s lawyers Olswangs sent the following letter to The Times:
"We also ask that your journalist Mr Patrick Foster, in a witness statement verified by a statement of truth provided to us, (1) sets out how he ascertained the following information concerning our client, (2) confirmed that he did not at any time make any unauthorised access into any email account owned by our client. In this regard a suspicion arises Mr Foster may indeed have done so."
Responding, Brett said: “As regards the suggestion that Mr Foster might have accessed your client's email address because he has a history of making unauthorised access into email accounts, I regard this as a baseless allegation with the sole purpose of prejudicing TNL's defence of this action."
Leveson went on to grill Brett about a witness statement prepared by Patrick Foster for the High Court injunction hearing. Brett had advised Foster “not to engage” on the computer hacking issue. He said he believed that this was irrelevant to the point of law at issue, which centred around the right to anonymity of bloggers. In his statement, Foster explained how he identifed Nightjack.
Leveson: “And then he starts at paragraph 12: ‘I began to systematically run the details of the articles in the series through Factiva, a database of newspaper articles collated from around the country. ‘I could not find any real life examples of the events featured in part 1 of the series.’That suggests that's how he started and that's how he's gone about it, doesn't it?”
Brett: “It certainly suggests he has done precisely that, yes."
Levson: “And that's how he's gone about it?”
Leveson: “That's not accurate, is it?”
A long pause.
Brett: “It is not entirely accurate, no.”
Leveson: “I'm sorry, I've started now. Paragraph 15: ‘Because of the startling similarities between the blog post and the case detailed in the newspaper report, I began to work under the assumption’ - I began to work under the assumption – ‘that if the author was, as claimed, a detective, they probably worked ...’ et cetera. Same question: that simply isn't accurate, is it?”
Brett: “My Lord, we're being fantastically precise.”
Leveson: “Oh, I am being precise because this is a statement being submitted to a court, Mr Brett.”
Leveson: “Would you not want me to be precise?”
Brett: “No, of course I'd want you to be precise. It's not the full story.”
Leveson: “I repeat, I'm not enjoying this: ‘At this stage I felt sure that the blog was written by a real police officer." That is utterly misleading, isn't it?”
Brett: “It certainly doesn't give the full story.”
Levson: “Well, there are two or three other examples, but I've had enough.”