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||Neutral Citation Number:  EWCA Civ 1276
||Case No: A2/2010/1176 + 1176A
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE EADY
REF NO: HQ10X01177
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
LORD JUSTICE MAURICE KAY
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE SEDLEY
|| Adakini Ntuli
||- and -
Mr Hugh Tomlinson QC and Mr Mark Lewis, Solicitor Advocate (instructed by JMW Solicitors LLP) for the Appellant
Mr David Sherborne (instructed by Schillings) for the Respondent
Ms Heather Rogers QC for Guardian News & Media Ltd (Intervener)
Hearing date : 5 October 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Maurice Kay :
- On 26 April 2010 Eady J granted an anonymised claimant an injunction restraining an anonymised defendant from doing specified but unpublishable things and further restraining the defendant and others from publishing the fact that the injunction had been sought and obtained. This type of relief has become known as a superinjunction. On this appeal the appellant/defendant seeks the discharge of the injunction in its entirety or, in the alternative, complains about its substantive terms. She also contends that the orders for anonymity and the non-disclosure of the application for and existence of the injunction were inappropriate. There is a cross-appeal whereby the respondent/claimant contends that the substantive injunction did not go far enough.
- It will facilitate the writing and, indeed, reading of this judgment if I set out the result of the appeal and of the cross-appeal at the outset. It is that the substantive injunction will remain but the order for anonymisation of the parties and the non-disclosure of the application for and the existence of the injunction will be discharged. The judgment will be a public judgment. For this reason, some of it will be expressed in muted or anodyne terms.
- The respondent/claimant is Howard Donald, one of the hugely successful "boy band" Take That. He has never married but he has had a number of relationships and he is the father of two children. The appellant/defendant is Adakini Ntuli. She is also a musician but is now a full-time single parent of two children. Mr Donald is not their father. During some of the time since 2000, Mr Donald and Ms Ntuli had a relationship. Its duration and intensity are matters of dispute. They did not cohabit. Mr Donald was also in other relationships during the same period. By the end of 2009 at the latest, the relationship between Mr Donald and Ms Ntuli seems to have come to an end. On 17 March 2010 she sent him a text message which included these words:
"Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?"
- This led to communication between the parties and eventually between solicitors. Before the solicitors became involved, Ms Ntuli secured the services of Max Clifford, the well-known publicist, and she entered into negotiations with the News of the World.
- On 25 March, Mr Donald made an ex parte application (on notice) to Eady J and obtained an interim injunction. In addition to restraining the publication, use or disclosure of scheduled categories of confidential information or the existence of the proceedings, it provided for anonymisation of the parties. It provided for a return date and the privacy of the hearings, together with the sort of directions which are commonly used in order to underwrite the security of such injunctions.
- Following a two day hearing on the return date (30 March), Eady J reserved judgment until 26 April when judgment was handed down and, following submissions by counsel, the order which is the subject of the present appeal was made. It continued the anonymisation and the non-disclosure of the existence of the proceedings. In some respects it modified the terms of the substantive injunction. It will be sufficient for present purposes if I set out the selected parts of the order.
- The principal substantive restraint in the original order restraining the publication of confidential information contains a proviso which was modified so as to read:
"PROVIDED THAT nothing in this paragraph of this Order shall prevent the Defendant from publishing, communicating or disclosing the following
(a) any material that before service of this Order was already in, or that thereafter comes into, the public domain …; or
(b) the fact that the Claimant had a relationship with the Defendant; AND PROVIDED FURTHER THAT nothing in this paragraph of this Order shall prevent the Defendant from discussing any of the material which she has already discussed or wishes to discuss with any family member or close friend, nor from disclosing to any such family member or close friend the existence of these proceedings or the Claimant's interest in them."
- The Schedule of confidential information subject to the restraint upon publication, communication use or disclosure included this provision:
"Any intimate, personal or sexually explicit details about the relationship … including any facts of a sexual nature."
Another category referred to "intimate or sexual activity". The order also contained undertakings by Ms Ntuli.
- On this appeal, the respective stances of the parties are that Mr Donald maintains that the injunction ought to extend to a restriction upon publication, communication or disclosure of the mere fact of the fact of the relationship (subject to the family and close friend proviso), whereas Ms Ntuli maintains that, in the light of further undertakings which she offered to Eady J, there ought not to have been an injunction at all. Alternatively, she contends that the injunction is too vague, particularly in relation to the use of the word "intimate". In any event, her case is that the orders for anonymisation and non-disclosure of the existence of the proceedings are inappropriate. In this clash of human rights, Mr Donald seeks to uphold his privacy rights by reference to Article 8 of the ECHR and Ms Ntuli relies on her right to freedom of expression under Article 10. More mundanely, there is also an issue as to the order for costs made by Eady J. He ordered Ms Ntuli to pay two thirds of Mr Donald's costs of the application.
1. Should Eady J have granted an injunction?
- Prior to the coming into force of the Human Rights Act 1998, the approach to cases such as this lacked coherence in domestic law. However, the basic principles of substantive law are now well-settled. In Re:S (a child)(Identification: Restrictions on Publication)  1 AC 593, at paragraph 17, Lord Steyn extracted four propositions from Campbell v MGN Ltd  2 AC 457:
"First, neither Article [8 or 10] has as such precedence over the other. Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test."
- So far as Article 8 is concerned, the ambit of private life was explained by Lord Nicholls in Campbell (at paragraph 21):
"Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
- The authorities were rigorously reviewed by Buxton LJ in McKennitt v Ash  QB 73,  EWCA Civ 1714, where he said (at paragraph 11):
"… in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by Article 8? If 'no', that is the end of the case. If 'yes', the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10? The latter inquiry is commonly referred to as the balancing exercise."
- He had previously (at paragraph 8) described that case as "what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply the purloining of private information". The present case can be so categorised.
- In his judgment, Eady J adopted a distinction drawn by Lord Hoffmann (dissenting) in Campbell (at paragraph 60) where he said:
"The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too obtrusive and demeaning."
- So far as "salacious details" are concerned, Eady J considered that the court "should make every attempt to recognise" Lord Hoffmann's distinction and grant relief accordingly in relation to facts of a sexual nature or other intimate personal details about a past relationship. He added that
"… these would be matters in respect of which the Applicant would have a reasonable expectation of privacy, unless it could be shown that there was a countervailing public interest or that such matters were already genuinely in the public domain."
- He found no such countervailing public interest or public domain obstacle and, accordingly, he granted the injunction restraining publication of, amongst other things, "any intimate, personal or sexually explicit details about the relationship … including any facts of a sexual nature".
- Although this went further than the undertakings then offered on behalf of Ms Ntuli, she maintained and was willing to undertake before Eady J that she does not intend to publish any descriptions of sexual activity with Mr Donald. That remains her position. Mr Hugh Tomlinson QC does not really dispute that the judge was right to ensure protection against publication of sexually explicit details, although it is suggested that justice might be achieved by more expansive undertakings than were offered to Eady J. In that regard, as the scope of protection remains an issue, I do not think that the judge can be criticised for resorting to a prohibitory order. The real complaint is that the judge was wrong to extend the injunction to cover "other information" and that, in any event, the wording of the injunction lacks clarity. I shall consider these matters separately.
(1) "Other information"
- This ground of appeal focuses on what I may describe as "non-sexual information". Accepting that some form of restraint is appropriate in relation to sexually explicit details, Ms Ntuli's case is that the judge was wrong to extend the injunction to cover such information as conversations between the parties concerning the nature of their relationship, its future development and their non-sexual feelings. Eady J expressed his conclusion in this way (at paragraphs 40 and 41):
"I would certainly grant an injunction in respect of 'salacious details' (to adopt Lord Hoffmann's phrase), but I would go further and restrict the communication, with a view to publication to the media, of information as to intimate conversations or activities. Wording of that kind would not prevent references to appearances or activities in public or social circumstances. A similar distinction was recognized in Lord Browne of Madingley. It has been acknowledged in that case and, for example, in McKennitt v Ash that private communications between intimates will generally give rise to a reasonable expectation of privacy under Article 8 …
The mischief towards which the injunction is directed is that of revealing publicly, for no good reason, intimate details relating to a personal relationship in which each party has a reasonable expectation of privacy."
As I have related, the injunction does not extend to discussions with close friends and family.
- The appeal on this issue is put on the basis that, although the judge correctly summarised the approach to be taken in accordance with "the new methodology", he erred in his application of it in that he failed to carry out an analysis as to whether or not there was a reasonable expectation of privacy in relation to "the other information" but rather assumed that there was before carrying out "the ultimate balancing exercise". He then further erred by proceeding on the basis that Ms Ntuli had to establish a "substantial argument" for publication based on the public interest. At paragraph 34, the judge said:
"I am not persuaded that there is any substantial argument for publication based on public interest. Applying the strict modern criteria to be found in the Strasbourg cases …, it seems to me that there is no reason to suppose that the revelation of the relationship would in any way contribute to a debate of general interest. Nor would it serve to prevent the public being misled or lead to the exposure of hypocrisy."
- The Strasbourg cases referred to include Von Hannover v Germany (2005) 40 EHRR 1, where the Court said (at paragraph 76):
"… the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life."
- This reflects recent domestic jurisprudence, for example the speech of Baroness Hale in Campbell, where she said (at paragraph 149):
"The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model's private life."
- Having criticised the judge for analytical shortcomings, Mr Tomlinson emphasises the following points. As to a reasonable expectation of privacy, he refers to (a) the fact that Mr Donald is a public figure, some of whose other relationships have received media coverage; (b) his own openness about some immature sexual activity about 20 years ago; (c) the fact that, unlike the claimant in McKennitt, he had never sought to extract a promise of non-disclosure from Ms Ntuli during the course of the relationship; (d) the unlikelihood of any significant damage to Mr Donald's career or family life in the event of disclosure; and (e) the nature and purpose of Ms Ntuli's desired publication, identified as the exercise of her Article 8 rights of self-development and autonomy and her Article 10 rights of freedom of expression. Turning to the balancing exercise as between the respective Convention rights of the parties, he submits that the "other information" is not "core private information" but simply the story of a failed relationship which should be given a very low privacy value. He refers again to Mr Donald's past openness about relationships and the unlikelihood of significant damage resulting from publication. He places particular emphasis at this stage on Ms Ntuli's "need" to tell the story of a relationship that went wrong and the reasons for its failure as she sees them by reference to her rights to personal autonomy and self-development. In so doing, he seeks to resist the characterisation of her story as "vapid tittle tattle".
- I simply do not accept that the judge, who is steeped in litigation of this kind, failed to have regard to any of these matters. It seems to me that they are all addressed, expressly or by implication in his judgment. At that stage, Ms Ntuli was represented by different Leading Counsel and it is plain from the skeleton argument before Eady J and the judge's references to the oral submissions that Mr Tomlinson's predecessor put the case a little differently. For example, it needed Mr Tomlinson to put Ms Ntuli's desire to tell her story in the context of her right to personal autonomy and self-development. However, I regard that, in the present case, as an ex post facto dignification which does not live easily with the evidence to which I referred, in truncated form, in paragraphs 3 and 4, above.
- The judge clearly had regard to Ms Ntuli's stated motives for wanting to sell her story (see, for example, paragraph 32 of his judgment). He referred to Mr Donald's "admissions as to his past behaviour", adding that it "can be taken into account, and assessed in the general application of the 'intense focus' to the facts of the case but it cannot be a determinative factor or anything like it" (paragraph 30). He evaluated the information and, in my judgment, was right to place a relatively low value on it in the light of the authorities to which I have referred. He also had proper regard to the possible impact of publicity on the parties' respective children (Mr Donald's being somewhat younger).
- I am satisfied that there was no analytical deficiency in the judgment and that Eady J came to the correct conclusion about the "other information".
(2) The terms of the injunction
- It is axiomatic that any injunction
"should be to the highest degree clear and precise so that no publisher would be in any doubt whether he was infringing it or not." (Times Newspapers Ltd v MGN Ltd  EMLR 443 at page 447, per Sir Thomas Bingham MR).
- Mr Tomlinson submits that the terms of the order in this case do not satisfy that requirement. His complaint is with the formulation
"any intimate, personal or sexually explicit details about the relationship."
- In particular, he criticises the use of the word "intimate" in this context. He maintains that its meaning is unclear so that Ms Ntuli cannot locate the boundary between what is lawful and what is not. It is suggested that exchanges between counsel and Eady J illustrate the problem.
- I accept that there is a degree of overlap between "intimate", "personal" and "sexually explicit". They are not mutually exclusive epithets. However, that does not necessarily establish ambiguity or a lack of clarity. Words of restraint often overlap, as for example "publishing, communicating or disclosing". As developed before us, the issue seems to be whether "intimate" has an essentially sexual connotation. I am convinced that it does not. The same word was used in the order in McKennitt v Ash, where the relationship between the parties was not sexual. What the judge had in mind in the present case is apparent from paragraph 17 of his judgment:
"… the court's protection should be extended to any facts communicated by the Defendant of a sexual nature or other intimate personal details about their past relationship."
- Mr Sherborne submits that the attempt on behalf of Ms Ntuli to free herself from restraint in relation to "intimate" details is manifestly self-serving. Her position is that it is not "sexually explicit" details that she wishes to publish but non-sexual details of (to use Mr Tomlinson's phrase) "a relationship that went wrong" for which she holds Mr Donald responsible. I consider that there is force in Mr Sherborne's submission.
- The order expressly permits publication, communication or disclosure of "the fact that the Claimant had a relationship with the Defendant". It would not breach the order to describe it as a sexual relationship. No one would infer that an unadorned reference to "a relationship" in this context was anything other than a sexual relationship. Within that relationship, however, the judge rightly decided that there were non-sexual but intimate and/or personal details in respect of which Mr Donald was likely to establish at trial that he has a reasonable expectation of privacy. I do not consider that the terms of the order lack clarity.
2. The cross-appeal
- By his cross-appeal, Mr Donald complains that the injunction granted by Eady J did not go far enough and that it should have restrained publication and disclosure of the very existence of the relationship pending trial. The refusal of the judge to go that far was founded on his application of section 12 of the Human Rights Act. The relevant provisions are as follows:
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."
- Thus, the general principles relating to interim injunctions are modified because of the importance of freedom of expression.
- Authoritative guidance on the approach to section 12(3) was provided by Lord Nicholls in Cream Holdings Ltd v Banerjee  1AC 253,  UKHL 44, where he said (at paragraph 22):
"Section 12(3) makes the likelihood of success at trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its paper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied that the applicant's prospects of success at trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospect of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court that he will probably ('more likely than not') succeed at trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Article 10 and any countervailing Convention rights. But these will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include … where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."
With this in mind, I turn to the particular circumstances of the present case.
- The witness statements filed by and on behalf of Mr Donald and Ms Ntuli provide different accounts of the duration and intensity of their relationship. They also differ as to the extent to which it was conducted in public, although it seems to be common ground that it was not wholly secret and nor did Mr Donald ever seek to impose a condition of secrecy. It is unnecessary for me to rehearse the detail.
- The judge assessed the matter in this way (at paragraph 37):
"There seems to be something of a conflict, or at least a difference of interpretation, on how private the relationship actually was. I cannot resolve such a conflict on an application of this kind. It seems to me right, therefore, to conclude that in this respect the Applicant has failed to persuade me that he is 'likely' to establish at trial that the relationship between them had been kept so private that he retained a reasonable expectation of privacy in respect of the mere fact that it existed. To put it another way, it has not been demonstrated that it is necessary and proportionate to extend the injunction so far as to restrict the Defendant's freedom of expression in this respect."
- The essential submission on behalf of Mr Donald is that, applying Lord Nicholls' approach, the judge ought to have put this case into Lord Nicholls' exceptional, "lesser degree of likelihood" category. Mr Sherborne emphasises the fact that at no time during the relationship or since it ended has there been any reference to it in the media. He submits that this is a paradigm case for providing temporary relief pending trial (or, perhaps, a further inter partes hearing) at which the conflict of evidence would be resolved. He seeks to derive support from ASG v GSA  EWCA Civ 1574, in which this Court granted interim relief following a refusal of it at first instance.
- In my judgment, this case bears no resemblance to the cases that Lord Nicholls had in mind as exceptional. Disclosure of the mere fact of this past relationship which, on any view, was not entirely secret, does not carry with it particularly grave adverse consequences. In view of the limited nature of the permitted disclosure and the other matters properly considered by the judge, it cannot be said that, in relation to this issue, he "erred in principle or reached a conclusion which was plainly wrong", that being the test to be applied on appeal: Lord Browne of Madingly v Associated Newspapers Ltd  QB 103,  EWCA Civ 295, at paragraph 45 (per Sir Anthony Clarke MR). Whilst it is true that there is no urgency in respect of this disclosure, nor is there a compelling reason to restrain it. Moreover, ASG does not assist Mr Donald because, not only was it fact-sensitive, more importantly it was concerned with the prior, ex parte stage.
- For these reasons, I would dismiss the cross-appeal.
- Ms Ntuli seeks to overturn the costs order made by Eady J. It was in these terms:
"The Defendant shall pay two-thirds of the Claimant's costs of and occasioned by this application (including, for the avoidance of doubt, the hearings on 30 and 31 March 2010 and on 26 April 2010), such costs to be assessed if not agreed."
- Mr Tomlinson acknowledges the wide discretion entrusted to the trial judge. However, he refers to Desquenne et Giral UK Ltd v Richardson  FSR 1 CA as authority for the proposition that where an interim injunction is granted the court will normally reserve the costs of the application until the determination of the substantive issue. He, of course, concedes that this is not a hard and fast rule.
- The judge explained his order in a brief judgment following the hand down of the main judgment. He was critical of Ms Ntuli because, on her own case, she had infringed Mr Donald's privacy in her dealings with the News of the World – "the plainest possible infringement". He concluded that, in the circumstances of this case, costs should follow the event, subject to a one-third reduction to reflect the extent to which Ms Ntuli had succeeded in narrowing the injunction. It is now submitted on her behalf that, in reaching that conclusion, the judge wrongly assumed things in Mr Donald's favour that will be in issue at trial. I do not consider that submission to be justified. For my part, I would not interfere with the order.
4. Superinjunction and anonymity
- If the injunction is to remain, the next question is whether it should retain its superinjunction and anonymity elements. The original order of 25 March 2010 included provisions under the headings "Anonymity of the Parties" (paragraph 3) and "Injunction and Related Relief" (paragraph 5). Paragraph 5 stated:
"Upon it appearing to the Judge (1) that these proceedings are likely to attract publicity, (2) that publicity revealing the identity of the Claimant or the Defendant [is] likely unfairly to damage the interests of the Claimant and (3) that accordingly publication of details revealing the Claimant's or Defendant's identity ought to be prohibited."
- Paragraph 5 restrained Ms Ntuli from publishing, disclosing etc
"… the existence of these proceedings or the Claimant's interest in these proceedings."
- These provisions continue in the order of 26 April. This followed some rather desultory written and oral submissions and may have been conditioned by the fact that the judge assumed that this appeal would be heard and determined by July at the latest. Because of these protections, the private judgment did not need to be and was not expressed in inhibited terms. On this appeal, Ms Ntuli seeks to take issue with both the superinjunction and anonymity elements. She is supported by Ms Heather Rogers QC who has been permitted to make written and brief oral submissions on behalf of Guardian News and Media Ltd.
(1) The superinjunction element
- It seems that the only argument advanced on behalf of Mr Donald at the ex parte stage was that a superinjunction provision was necessary because, without one, the media might publicise the fact that "a well-known popular musician" had obtained an injunction which prohibited the publication of (to put it neutrally) salacious details. This is unpersuasive because protection against personal identification could have been achieved by a simple anonymity order. Alternatively, the order could limit publicity to the fact that Mr Donald had obtained an injunction restraining Ms Ntuli from disclosing details of the relationship which existed between them.
- Superinjunctions attract understandable controversy. Sometimes it is the product of more heat than light. Although the concept carries the nomenclature of novelty, there is much that is simply a reflection of general principles. The starting point is the principle of open justice, most notably expounded in Scott v Scott  AC 417, where Lord Haldane LC said (at page 438):
"[The point] is one of principle … turning not on convenience but on necessity."
Lord Atkinson added:
"… in public trial is to [be] found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect."
See also Lord Shaw of Dunfermline (at pages 476-478).
- Needless to say, it is not an absolute rule. As Lord Diplock said in A-G v Leveller Magazine Ltd  AC 440 (at page 450):
"… since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice … "
- More recently, in ex parte Kaim Todner  QB 966 Lord Woolf MR explained the principle in a contemporary context and added (at page 977):
"Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it."
- This line of authority (which includes numerous other examples) requires open justice to apply because it furthers the interests of justice unless a countervailing consideration overrides it in the interests of justice. There are well-known circumstances in which to insist upon open justice would itself create a greater injustice.
- It is submitted on behalf of Mr Donald that this is such a case. Mr Sherborne seeks to fortify that submission by inviting us to dilute the test of necessity referred to in the earlier authorities on the basis that they preceded the Human Rights Act which, in providing for competing qualified rights (private life and freedom of expression), requires a more nuanced approach. In this regard, he refers to the control order case of Home Secretary v AP(No.2)  1 WLR 1652,  UKSC 26, in which the anonymity of a successful appellant against a control order was continued.
- In my judgment, there is no need for a new approach. Indeed, it is significant that Article 6 of the ECHR itself prescribes a test of strict necessity in the context of publicity being permitted to be restricted in the interests of justice. However, as part of its consideration of all the circumstances of a case, a court will have regard to the respective and sometimes competing Convention rights of the parties. In AP(No.2), this led Lord Rodger to formulate the question in these terms (at paragraph 7):
"… whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
- There, anonymity was continued because the public interest in publication "has to give way to the need to protect AP from the risk of violence" and the same public interest "would not justify curtailing AP's right to respect for his private and family life" (paragraph 18). Whilst this is not the language of "necessity", it is not significantly different. Indeed, "has to give way" is qualitatively similar to a necessity test. Necessity remains the test for the residual power to order a private hearing under the Civil Procedure Rules (CPR 39.2(3)(g)).
- This is an essentially case-sensitive subject. Plainly Mr Donald is entitled to expect that the court will adopt procedures which ensure that any ultimate vindication of his Article 8 case is not undermined by the way in which the court has processed the interim applications and the trial itself. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which Mr Donald is entitled. In my judgement, in view of the terms of the substantive injunction and the circumstances of this case, the appropriate restriction on publicity is one that limits reporting and publicity to what is contained in this judgment, together with any ancillary orders necessary to fortify such an order. I am simply unpersuaded that greater restriction is necessary at this stage. There is nothing in this judgment that is significantly invasive of Mr Donald's private or family life.
- It seems to me that what I have said in relation to the superinjunction element applies also to the question of anonymity. Provided that publicity is limited to what is contained in this judgment, there is no justification for continued anonymity. I have in mind the judgment of Lord Rodger in Guardian News and Media Ltd  2 WLR 325,  UKSC 1, at paragraphs 63-64. The material in respect of which Mr Donald has been found to have a reasonable expectation of privacy is not detailed in the judgment. The material in the judgment does not attract a reasonable expectation of privacy. I note that an order restricting publicity to the contents of a judgment, in relation to which one party was anonymised but the other was not, was recently made by Tugendhat J in Gray v UVW  EWHC 2367 (QB): see in particular paragraphs 44-63. There the continued anonymity of the defendant was justified by a significant risk that lifting his or her anonymity might have serious consequences for his or her private life which consequences might not be remediable. I do not consider that the same can be said of Mr Donald in the present case. In my view, it would have been possible and appropriate for Eady J to have written his judgment in a publishable form. Moreover, to have done so would have avoided the risk that anonymisation can give rise to, namely that of "jigsaw" identification, whereby anonymisation may be undermined by correctly identifying someone as a result of relating separate snippets of information or, equally unfortunately, it may lead to the wrong person being identified by the media misaligning the snippets. We were shown one recent example of this.
- I emphasise that my conclusion on the superinjunction and anonymity issues are confined to this appeal. If the case goes to trial, matters such as the privacy of the hearing or parts of it will have to be revisited, as will the publicity or otherwise of the judgment. Much will depend on the issues as they are then identified.
- It follows from what I have said that I would dismiss the appeal and the cross-appeal in relation to the substantive injunction but I would allow Ms Ntuli's appeal in relation to the superinjunction and anonymity issues. In the course of her submissions, Ms Rogers made a number of interesting procedural points of concern to Guardian News and Media Ltd (and, I suspect, to the media generally). They do not arise for decision on this appeal. It is better that they be considered elsewhere, in particular by the committee set up by the Master of the Rolls, to consider such issues.
Lord Justice Sedley:
- I agree.
The Master of the Rolls:
- I also agree.
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