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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Terry v Persons Unknown (Rev 1)  EWHC 119 (QB) (29 January 2010)
Cite as:  Fam Law 453,  EMLR 16,  1 FCR 659,  EWHC 119 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(previously referred to as "LNS")
|- and -
The Respondent did not appear and was not represented
Hearing dates: 22 January 2010
Crown Copyright ©
Mr Justice Tugendhat :
THE SUBSTANCE OF THE ORDER SOUGHT – ARTS 8 AND 10
(1) whether the limitations upon, or defences to, a claim in misuse of private information on grounds of public interest are such that an injunction ought, or ought not, to be granted; and whether or not the law to be applied to this application is that set out in Bonnard v Perryman (recently re-affirmed in Greene v Associated Newspapers  EWCA Civ 1462;  QB 972);
(2) whether the court should order the derogations sought from open justice, the requirements of fairness, and Art 6;
(3) whether the court should order the derogations sought from other provisions of the CPR;
(4) what should be the scope of any prohibition granted: the order sought is unqualified in form, but according to the evidence the information is already circulating widely by word of mouth, and what appears to be sought is in reality a prohibition of publication to the public at large by broadcast in the press or other media.
THE DEROGATIONS FROM OPEN JUSTICE, THE REQUIREMENTS OF FAIRNESS, Art 6 and CPR
"Effect of this order: It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or have their assets seized".
"9.1The following provisions apply to orders which will affect a person other than the applicant or respondent, who:
(1) did not attend the hearing at which the order was made; and
(2) is served with the order.
9.2 Where such a person served with the order requests –
(1) a copy of any materials read by the judge, including material prepared after the hearing at the direction of the judge or in compliance with the order; or
(2) a note of the hearing,
the applicant, or his legal representative, must comply promptly with the request, unless the court orders otherwise".
"25.3(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.
(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given."
THE FORM OF THE EVIDENCE
"On Wednesday evening, 20 January 2010, and together with [another solicitor of the same firm] I spoke with [LNS]'s business partners [BP1 and BP2 – "the business partners"]. [The business partners] told me of [LNS]'s very grave concern over the possibility of intrusion into [LNS's] personal life. This concern has arisen as a result of [LNS] being aware of rumours circulating among the [relevant sporting] community concerning [LNS's] private life. It is that concern that leads to the present application being made… In the afternoon of 22 January 2010 [the business partners] met with [the other person] at a London hotel. [The other person] confirmed to [the business partners] that [the other person] considered the fact and detail of [the other person's] relationship with [LNS] to be private and that [the other person] did not want any such information … to become public. For the avoidance of doubt however it should be made clear that a substantial amount of information is in the public domain concerning [the other person] which in the case of a less well known person would not be in the public domain, at least some of it at [the other person's] instigation or with [the other person's] consent I refer by way of illustration … [and illustrations of this are attached to the exhibit]. At the meeting, [the other person] executed a confidentiality agreement and side letter confirming these wishes. A copy of these documents is attached….".
"I understand that there have been claims made concerning a relationship between [LNS] and myself. Whilst I do not make any admission as to the truth or otherwise of such rumours, speculation concerning [LNS, the other person and the Relationship] is private and I agree to keep such information private and confidential. If I receive any enquiries from the media concerning the above, I agree that I shall notify [BP1] about this as soon as possible".
"As a result of my dealings with you there has been speculation about a relationship with you. Whilst I do not make any admission as to the truth or otherwise of such speculation, I do not want such information to be disclosed. In order to assist you in keeping such matters confidential and in consideration of £1 receipt of which is hereby acknowledged I agree as follows:
2. I agree not to disclose any Confidential Information to any third parties (save to my legal advisors or as required by law).
3. I agree not to disclose any Confidential Information to any media organisations, journalists or any 3rd party who may provide such Confidential Information to any media organisation …
14. The terms of this agreement are confidential…"
THE CONTENT OF THE EVIDENCE
"have each only discussed the relationship with a very small number of people, in confidence. [LNS] has not told [the interested person] about [LNS's] relationship. Accordingly the original source or sources of the stories that have been circulating … in other words the 'person or persons unknown' who are the Respondent … have acted in clear breach of confidence in passing on the information they have received as [LNS] contends they must have done".
"As a result of these conversations [LNS] knows that the rumour is rife within the [relevant sporting] community, but does not know the origin of the rumour"… [and that there are a lot of people in that] "world who know about the fact and at least some detail of the [Relationship]. This category includes but is not limited to players, former players and agents".
BREACH OF CONFIDENCE
MISUSE OF PRIVATE INFORMATION
Article 8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of …, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10 Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…..
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society,…, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
"12 Freedom of expression
(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.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(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.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which— (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code".
(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
(ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.
(iii) It is unacceptable to photograph individuals in private places without their consent.
Note - Private places are public or private property where there is a reasonable expectation of privacy.
The public interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
(i) Detecting or exposing crime or serious impropriety.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in freedom of expression itself.
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.
4. The PCC will consider the extent to which material is already in the public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child".
"In the present case the applicant has made claims [about LNS's conduct…] and it could be argued that he cannot complain if the true position is exposed. However the court has to have regard not only to [LNS's] Art 8 rights but also those of [the other person] and [the interested persons], and it is submitted that it would be an unduly heavy price for them to pay to the end of correcting any false public image that the applicant may have cultivated. In addition, the question for the court is not so much whether there is a contrast or contradiction between the position … which was stated at the time and that which prevails now, but whether previous claims that were false and misleading at the time when they were made".
"First, neither article 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".
"…..it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
"25. Lord Pannick suggested it would be open to the BBC to raise the issue of general interest without mentioning D's name or in any other way disclosing his identity. But I think that Mr Millar was right when he said that the BBC should not be required to restrict the scope of their programme in this way. The freedom of the press to exercise its own judgment in the presentation of journalistic material has been emphasised by the Strasbourg court. In Jersild v Denmark (1994) 19 EHRR 1, the court said, at para 31, that it was not for it, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. It recalled that article 10 protects not only the substance of the ideas and the information expressed but also the form in which they are conveyed. In essence article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility: see Fressoz and Roire v France (1999) 31 EHRR 28, para 54. So the BBC are entitled to say that the question whether D's identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge. As Lord Hoffmann said in Campbell v MGN Ltd  2 AC 457, para 59, judges are not newspaper editors. They are not broadcasting editors either. The issue as to where the balance is to be struck between the competing rights must be approached on this basis.
26. Will the revealing of D's identity in connection with the proposed programme pursue a legitimate aim? I would answer that question in the affirmative."
"such a programme would indeed be 'very much disembodied' and have a substantially lesser impact upon its audience".
"135 As the law stands, it seems clear that it is for the court to decide whether a particular publication was in the public interest. This may require further explanation. It is important to have in mind that some authorities (here and in Strasbourg) have in recent years placed emphasis on the need to make due allowance for editorial judgment and also for a wide discretion so far as taste and modes of expression are concerned: see e.g. Jameel (Mohammed) v Wall Street Journal Sprl  1 AC 359 at - in the context of privilege in the law of defamation, where Lord Bingham made these observations:
"31 The necessary precondition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.
32 Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the matter to be one of public interest, that Lord Nicholls proposed [in Reynolds v Times Newspapers Ltd], at p 202, a test of responsible journalism, a test repeated in Bonnick v Morris  1 AC 300, 309. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency, at p 238, 'No public interest is served by publishing or communicating misinformation.' But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.
33 Lord Nicholls, at p 205, listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege. Lord Nicholls recognised, at pp 202-203, inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.""
"Personal data which are processed only for the special purposes [journalism, literature and art] are exempt from any provision to which the subsection relates if … (b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and (c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes".
"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person".
"the tort of defamation – which has developed to take account of Article 10 rights of defendants - may now have to be further adapted to take into account the Article 8 rights of claimants".
"… as Littledale J said in M'Pherson v Daniels (1829) 10 B & C 263, 272, "the law will not permit a man to recover damages in respect of an injury to a character which he does not, or ought not, to possess". Truth, is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully."
"The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest.... The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out. As the court said in that case :
"The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done."
There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication".
"It was said: Seeing that no injunction should be granted in respect of the defamatory aspect of the article, likewise no injunction should be granted in respect of the breach of confidence. The plaintiff should not be able to avoid the salutary rule of law in libel by framing the case in breach of confidence. Reliance was placed on Sim v. H. J. Heinz Co. Ltd. I do not think it necessary to rule on this point today. I can well see that there may be cases where it would be wrong to grant an injunction on breach of confidence when it would not be granted on libel: but I can equally well see that there are some cases of breach of confidence which are defamatory, where the court might intervene, even though the defendant says he intends to justify."
"It is true that there is no wrong done if what is published is true provided that it is not published in pursuance of a combination and even if it is, there is still no wrong unless the sole or dominant purpose of the combination and publication is to injure the plaintiff. If, however, there is both combination and purpose or dominant purpose to injure, there is a wrong done. When a plaintiff sues in conspiracy there is, therefore, a potential wrong even if it is admitted, as it is in the present case, that the publication is true and thus that there is no question of a cause of action in defamation. In such a case the court can, and in my view should, proceed on the same principles as it would in the case of any other tort.
… I have no doubt that the court would scrutinise with the greatest care any case where a cause of action in conspiracy was joined to a cause of action in defamation and would require to be satisfied that such joinder was not merely an attempt to circumvent the rule in defamation".
"Although that principle, which is applied in defamation cases, is not directly applicable in its terms to a case where the basis of claim is conspiracy to inflict deliberate damage without any just cause, nevertheless it seems to me that that principle, namely the individual and the public interest in the right of free speech, is a matter of great importance in the consideration of the question whether in the exercise of the court's discretion an interlocutory injunction should be made and, if yes, what should be the extent of any restriction upon publication of any statement pending trial."
"If it could be shown that a claim in breach of confidence was brought where the nub of the case was a complaint of the falsity of the allegations, and that that was done in order to avoid the rules of the tort of defamation, then objections could be raised in terms of abuse of process."
"85. … It was then said that there was no right of privacy in relation to false statements, in respect of which the tort of defamation was, in any event, available.
86 This argument, in my judgment, is untenable. The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry".
"In light of the latter decision, claimants have been able to sidestep the problems which might otherwise be presented by the Rule [in Bonnard v Perryman] by bringing (and seeking interim injunctions in) claims for misuse of private information in respect of allegations which concern private or personal activities even if they also adversely affect rights of reputation, contending that, in that context, the truth or falsity of the allegations is irrelevant: see, for example, WER v REW  EMLR 304. As in the case of claims brought in reliance on other causes of action (such as under the Protection of Harassment Act 1997: see Gatley [on Libel and Slander 11th ed], §27.17 and the cases there cited) this is an entirely legitimate tactic, provided that the claim is brought genuinely and not merely to circumvent the Rule".
THE SOCIAL UTILITY OF THE THREATENED SPEECH
"The "media," to use a term which comprises not only the newspapers, but also television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propagating the view of minorities, they perform an invaluable function."
"The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve."
"(3) except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application".
THE OMISSION TO GIVE NOTICE
"18 It is not for me to lay down practice directions, but what I can say is that a proper consideration for the Article 10 rights of media publishers, and indeed their rights under Article 6 as well, would require that where a litigant intends to serve a prohibitory injunction upon one or more of them, in reliance on the Spycatcher principle, those individual publishers should be given a realistic opportunity to be heard on the appropriateness or otherwise of granting the injunction, and upon the scope of its terms.
19 The point of principle for which Mr Caldecott contends [I interpolate that Mr Caldecott was acting for one of the media defendants] can be encapsulated in the terms of the draft placed before the court for this hearing, which obviously mirrors closely the provisions contained in section 12 of the Human Rights:
'A claimant, who applies for an interim order restraining a defendant from publishing allegedly private or confidential information, should give advance notice of the application and of the injunctive relief sought to any non-party on whom the claimant intends to serve the order so as to bind that party by application of the Spycatcher principle … unless:
(a) The claimant has no reason to believe that the non-party has or may have an existing specific interest in the outcome of the application; or
(b) The claimant is unable to notify the non-party having taken all practicable steps to do so; or
(c) There are compelling reasons why the non-party should not be notified"
"It appears to me that this latest order is symptomatic of a trend whereby this sort of order is (1) sought against persons unknown by which I deduce that no one was heard in opposition to the injunction request. No advance notice was given to the media; (2) immediately served on the legal departments of the national media, who are not defendants to the action; (3) dispenses with any obligation to serve evidence in support; (4) protects an anonymous claimant".
"I can well understand why Mr Partington read those words of Eady J as in effect obliging a claimant such as the present claimant to notify in advance all those media defendants intended to be served with the injunction. However, I have been provided today with information by Mr Spearman about the facts of X v Persons unknown. As is apparent from its title, it was a case where the claimants themselves were unaware of the identity of the individual defendants whom they sued. As I understand it, the claimants limited their notification of the application to non-parties to third-party to a selected number who had shown some interest in the story. In those circumstances, it appears to me (and I hope I do not misapprehend what the judge said) that Eady J cannot have been contemplating an obligation being imposed on individual claimants, who may be of limited means, to arrange through their legal advisers to serve what might be a substantial body of evidence on a large number of media non-parties. It seems to me that the obligation to serve them must, as a matter of common sense and economy, be confined to those media organisations whom the claimant has reason to believe have displayed an interest in publishing the story which the claimant is seeking to injunct."
THE TEST OF LIKELIHOOD
"There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the 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 prospects 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 he will probably ("more likely than not") succeed at the 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 there 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 those mentioned above: 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" (emphasis by Mr Spearman).
DEFAMATION AND THE RULE IN BONNARD v PERRYMAN
IF THE PRIVACY RULE APPLIES
THE NEED FOR A RETURN DATE
PROHIBITION OF REPORTING THE FACT OF THE ORDER
"Except for the purpose of obtaining legal advice, the Respondent must not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings have been or may be brought against him by the Applicant until 4.30 p.m. on the return date or further order of the court."
"The crucial point, as it seems to me, is that the description used must be sufficiently certain as to identify both those who are included and those who are not. If that test is satisfied then it does not seem to me matter that the description may apply to no one or to more than one person, nor that there is no further element of subsequent identification whether by service or otherwise".
i) There is a threat to publish information about the fact of the Relationship, but I am not satisfied that the applicant is likely to establish that publication should not be allowed;
ii) I think it likely that the nub of the applicant's complaint is to protect [LNS's] reputation, in particular with sponsors, and so (a) that the rule in Bonnard v Perryman precludes the grant of an injunction; and (b) in any event damages would be an adequate remedy for LNS;
iii) I am not satisfied that the double hearsay account I have been given of the evidence of LNS and the other person is full and frank (this may not be a criticism of the lawyers or of the individuals concerned, but arises from the fact that their evidence has been collected and reported by non-lawyers: I do not know who is responsible for this);
iv) I am not satisfied that the applicant is likely to establish that there has been a breach of a duty of confidence owed to LNS;
v) I have had regard to the extent to which it would be in the public interest for the material to be published, but, without having heard the Respondent or the media, I am not satisfied that the applicant is likely to succeed in defeating a defence that it would be in the public interest for there to be a publication;
vi) There is insufficient evidence of a threat to publish photographs or sensitive details about the Relationship;
vii) Notice has not been given to any newspaper when it should have been, and, as a result, I have not had the benefit of arguments in opposition to the application, which might have assisted me to be satisfied of the matters of which I am not satisfied;
viii) I do not consider that an interim injunction is necessary or proportionate having regard to the level of gravity of the interference with the private life of the applicant that would occur in the event that there is a publication of the fact of the Relationship, or that LNS can rely in this case on the interference with the private life of anyone else.