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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> OPQ v BJM & Anor [2011] EWHC 1059 (QB) (20 April 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/1059.html Cite as: [2011] EMLR 23, [2011] EWHC 1059 (QB) |
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QUEEN'S BENCH DIVISION
SITTING IN PRIVATE
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
OPQ | Claimant | |
- and - | ||
(1) BJM (2) CJM |
Defendants |
____________________
The Defendants did not appear and were not represented
Hearing date: 6 April 2011
____________________
Crown Copyright ©
Mr Justice Eady :
"At common law, if the court makes an order regulating its own procedure and the purpose of the order is plainly to protect the administration of justice, then anyone who subverts that order will be guilty of contempt."
" … I have no conception that it is competent to this Court to hold a man bound by injunction, who is not a party in the cause for the purpose of the cause."
" … it belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them."
Where the court was exercising this jurisdiction, it was not confined by the ordinary constraints of inter partes litigation: see e.g. Scott v Scott [1913] AC 417, 483, where it was characterised by Lord Shaw as being "intra familiam".
"98. Dame Elizabeth Butler-Sloss P, sitting in the Family Division, has asserted a jurisdiction to issue an injunction against the world in support of a private law right to confidentiality which is without precedent. In Venables vNews Group Newspapers
Ltd [2001] Fam 430 an application for an injunction was made by the child murderers of James Bulger, who were about to be discharged from prison, having each reached the age of 18. They were to be given false identities and each sought an injunction against the whole world, to continue for his entire lifetime, restraining publication that might lead to the identification of their identities or whereabouts. Dame Elizabeth Butler-Sloss P granted the injunction. In so doing she was strongly influenced by the fact that the claimants' human rights under Articles 2 and 3 would be threatened if their identities were disclosed. This decision was novel in at least two respects: (1) Dame Elizabeth Butler-Sloss P recognised a private law right to confidentiality protecting the identities and whereabouts of the two claimants valid against the whole world; (2) the President held that she had jurisdiction to grant an injunction in protection of private law rights against all the world.
99. In X (formerly Bell) v O'Brien [2003] EWHC 1101 (QB), Dame Elizabeth Butler-Sloss P made similar orders protecting the identity and whereabouts of Mary Bell and her daughter. These two decisions are not directly relevant to the present case. They exemplify, however, the manner in which the courts have extended both the scope of confidential information and the use of the injunction to protect this, thereby giving effect to the right to respect for private life conferred by Article 8 of the Convention."
i) neither article has as such precedence over the other;
ii) where conflict arises between values under Articles 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual cases;
iii) the court must take into account the justifications for interfering with or restricting each right;
iv) so too, the proportionality test must be applied to each.
"46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect for private life guaranteed by Art.8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Art.3 treatment may nonetheless breach Art.8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.
47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Art.8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
She was accordingly prepared to grant relief to Mary Bell in respect of her Article 8 rights in the light of medical evidence about her mental fragility.
"Of course the applicant's rights under article 8 of the Convention are also engaged. Those relate to privacy, which is a concept wide enough to include a person's physical and psychological integrity. The preservation of mental stability is recognised as being a necessary precondition for the exercise of rights under Article 8."
Accordingly, the need to protect her mental health was one of the grounds for granting her a contra mundum injunction.
"The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases."
"Whilst the right for the public to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political personalities are involved … publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society."
A fortiori here, where the Claimant is a private citizen.