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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 >> JIH v News Group Newspapers Ltd  EWHC 2818 (QB) (05 November 2010)
Cite as:  EMLR 9,  EWHC 2818 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|NEWS GROUP NEWSPAPERS LTD
Mr Richard Spearman QC (instructed by Farrer & Co) for the Defendant
Hearing date: 22 October 2010
Crown Copyright ©
Mr Justice Tugendhat :
"… the Respondent must not publish … (a) all or any part of the information … described in the Confidential Schedule …, or (b) anything which might identify the … claimant as the person who has obtained the order…"
" … [where] the court has … accepted that the publication of private information should be restrained, … if the court is to avoid disclosing the information in question it must proceed in one of two alternative ways:
(1) If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised;
(2) If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified" (emphasis added).
CHRONOLOGY OF PROCEEDINGS
"if this was not included in the order it would undermine the purpose of the order itself. I note that it is common for such an order to be made, at least when the order is made to prohibit publication".
"(1) these proceedings were likely to attract publicity
(2) that publicity revealing the identity of the Applicant is likely unfairly to damage the interests of the Applicant and/or frustrate the administration of justice in these intended proceedings".
i) heard the application in private pursuant to CPR r 39.2(3)(a), (c) and (g)
ii) made an order under CPR r5.4C limiting the information that was to be available to the public from the court file
iii) made the right (under CPR PD 25A para 9.2) of third parties affected by the order to obtain the order and the supporting evidence subject to an undertaking to be given to the Court by such third party.
"an injunction restraining the publication or disclosure of private information concerning the Claimant identified in the Confidential Schedule to the Order of Mr Justice Nicol dated 13 August 2010".
"…, it is true that newspapers can always contest an application for an injunction. Even for national newspapers that is, however, a costly matter which may involve proceedings at different judicial levels. Moreover, time constraints of an impending trial may not always permit such proceedings. Often it will be too late and the injunction will have had its negative effect on contemporary reporting."
"… BY CONSENT THAT the interim Order of Mr Justice Nicol dated 13 August 2010 (as varied by paragraph 1 of the Order of Mr Justice Nicol dated 20 August 2010) be continued until final judgment or further Order in the meantime"
"…the Spycatcher doctrine [Attorney-General v Newspaper Publishing Plc  Ch 333 at 375, 380] would go on inhibiting third parties from publishing the relevant information notionally pending a trial which would never actually take place. The Spycatcher doctrine, as a matter of logic, has no application to a permanent injunction since, obviously, there is no longer any need to preserve the status quo pending a trial. This doctrine is directed at preventing a third party from frustrating the court's purpose of holding the ring: see e.g. the discussion in Att.-Gen. v Punch Ltd  1 AC 1046 at - in the Court of Appeal and at  in the House of Lords; and Jockey Club v Buffham  QB 462 (Gray J)."
THE LAW ON OPEN JUSTICE
" … Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial …where the protection of the private life of the parties so require[s], or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".
"(438) . . .unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is a contest between the parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors… If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, … a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of justice. A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.
(463) … in public trial is to 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.
(477) … Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' 'The security of securities is publicity.' But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: 'Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair construction of evidence; and the right of Parliament, without let or interruption, to enquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise ".
"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 ... 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 …
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."
COMMON GROUND BETWEEN THE SUBMISSIONS
(1) As a general rule, the names of the parties to an action should be included in orders and judgments of the court (ibid, para 1).
(2) There is no general exception for cases where private matters are in issue (loc. cit.).
(3) An order for anonymity is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.
(4) Where the court is asked to restrain the publication of the names of the parties and the subject matter of the claim [on the ground that restraint is necessary under Art 8] the question is whether the there is sufficient general, public interest in publishing a report of the proceedings which identifies a party to justify any resulting curtailment of his right and his family's right to respect for their private and family life (ibid, para 4).
(5) An order for anonymity and reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public (ibid, para 33)
(6) An anonymity order made by a Judge, on the first hearing of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date (ibid, para 34)
"Is there a sufficient degree of likelihood that the claimant will win at trial to justify an ex parte injunction for a short period before a full inter partes hearing?" (emphasis added)
It follows from this (point (6)) that the ancillary provisions of the Orders of 13 and 20 August were, like the substantive provisions, to last only until the return date. The Judge hearing the case at the return date must come to his own view as to the necessity for such derogations in the light of the facts as they are known to him at that time. An anonymity order made on a without notice application such as the one on 13 August is not to be understood as applying indefinitely. The parties before me both accepted that was so.
"granted that the judgment relates to some matters concerning the parties, there is no good reason why they should continue to be referred to anonymously".
THE LEVELS OF INFORMATION AN ORDER MAY SPECIFY
"6 ...public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.
7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain."
i) no information about the subject matter of the action
ii) "the kind of information" the subject matter of the action
iii) "the bare fact of the relationship"
iv) "details of the relationship".
i) no information at all about the subject matter of the action, or
ii) the kind of information to which the action relates, and,
iii) in some cases, the fact of any relationship to which the action relates.
SUBMISSIONS OF MR TOMLINSON
(1) In general, the public interest in open justice will be best served by knowing the subject matter of the proceedings rather than the "bare identity" of the claimant.
(2) It will often be the case that public domain information concerning the claimant will mean that the nature of the information in issue is obvious so that if the proceedings are not anonymised it will be clear that the identified claimant is seeking to prevent disclosure of information of a particular kind.
(3) If a claimant is named there will, almost inevitably, be speculation and rumour about the likely nature of the information covered by the injunction. Of course, unless the nature of the information is obvious, much of this speculation and rumour will be false and unfounded. Nevertheless it is established in Standard Verlags GmbH v Austria (No.2) Judgment of 4 June 2009, ECtHR, para 53 that
"even public figures may legitimately expect to be protected against the propagation of unfounded rumours relating to intimate aspects of their private life".
(a) The general public interest served by identifying this Claimant as a person who has obtained a privacy injunction is very limited. He contrasts the obvious public interest in identifying the individuals in the Guardian News and Media case. They had entered into public debates about matters of high public interest arising out of the proceedings, namely the appropriateness of Government counter-terrorism measures. The Claimant has not entered into any such debate.
(b) It is likely that the publication of the Claimant's name would lead to the public becoming aware of the nature of the information covered by the injunction in the particular circumstances of this case. This is not just a matter of "general speculation" as to the nature of the kind of information likely to be covered by an injunction of this type (as discussed in Gray ) but focussed and accurate inference in the light of the circumstances. In any event, "speculation" can itself be intrusive' (see Standard Verlags GmbH v Austria (No.2)). This is not a matter of the press "abusing their freedom to report" but of interference with the Claimant's Art 8 rights as a direct result of the publication of his name.
(c) In any event, the publication of the Claimant's name would lead to large scale media intrusion. He would be photographed and questioned, and other people would be subject to unwanted media attention. This coverage and attention would, in itself, constitute a very substantial intrusion into the private and family life of himself and of any other individual concerned, and would be very distressing for all of them. Of course, such attention may be a necessary incident of a person invoking the Court's process, but it is a matter which the Court can properly take into account when balancing the relevant interests and performing its duty to ensure that the protections given to the Claimant's Art 8 rights are "practical and effective". There is a public interest in ensuring that individuals are not deterred from seeking legal redress through the courts by the consequences of court orders being made public.
(e) The defendant in this case is NGN, a major media organisation, and it has accepted that anonymity is appropriate.
SUBMISSIONS OF MR SPEARMAN
"What's in a name? 'A lot' the press would answer…"
CONCLUSION ON ANONYMITY
OTHER PROVISIONS OF THE ORDER
"the present appeals show that an order ("anonymity order") may be made, often by consent of both parties, without the court considering in any detail what is the basis or justification for it".
Those words, and the detailed consideration the Supreme Court gave to the anonymity orders both in that case and the case of Secretary of State for the Home Department v AP (No. 2)  UKSC 26,  1 WLR 1652, may be taken as guidance that judges should give detailed reasons for making anonymity orders. There are further models in the detailed judgments on anonymity given by the judges in Northern Ireland in A (A minor) & Others v A health & Social Services Trust  NIQB 108 and R A, Re Judicial Review  NIQB 27. On the other hand, the ECHR did not explain in its judgment in A v United Kingdom why it did not identify the applicant in its judgment dismissing her application. It may be inferred that the reason was obvious: in order not to give an occasion for further harassment of her.
SUBMISSIONS FROM OTHER PUBLISHERS
i) That they had not been given, but should have been given, notice of the application to Nicol J: Associated Newspapers Ltd, Express Newspapers Ltd, MGN Ltd, Guardian News and Media Ltd
ii) Complaints that they had not been given copies of the witness statement of Mr Shear and the skeleton argument of Mr Tomlinson submitted to me on 22 October, and other documents: MGN Ltd
iii) Complaints that the provisions of CPR PD 25A para 9.2 (persons served with the order to be provided on request with materials read by the judge and a note of the hearing) had not been complied with: MGN Ltd
iv) Complaints that the Claimant had not notified them of the return date: MGN Ltd (the Claimant has apologised to MGN Ltd for this omission), Guardian News and Media Ltd
v) That applicants should be required to undertake to the Court to keep third parties who have been served with an order, and who are bound by it under the Spycatcher principle, informed as to what is going to happen in the action, including prior notice of any hearings: MGN Ltd, Guardian News and Media Ltd
vi) That the information relied on in support of any application for a derogation from open justice (see para 70 above) should be served on third parties: MGN Ltd
vii) The provisions of CPR PD 25A para 9.2 should not be dispensed with, or made subject to any condition (such as are in paras 5 and 6 of the draft Order set out below), alternatively any condition other than an undertaking to protect private information: all six Media Organisations.
THE REVISED FORM OF ORDER
"The prohibited acts
1. The Defendant must not publish, republish, syndicate, use, communicate or disclose to any person:
(a) Any information concerning the subject matter of these proceedings save for that contained in the public judgment of the Court handed down on 5 November 2010 and/or
(b) Any of the information set out in the Confidential Schedule to this Order (together "the Information").
PROVIDED THAT nothing in this Order shall prevent the publication, disclosure or communication of any of the Information:
(i) by the Defendant (1) to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings or (2) for the purposes of carrying this Order into effect or (3) for the purpose of these proceedings (including for the purpose of gathering evidence in relation to these proceedings) provided that any person to whom such information is disclosed must first be either given a copy of this Order or notified of its substance and effect;
(ii) by the Defendant of any part of the Information that is in the public domain as the result of national media publication (otherwise than as a result of breach of this Order).
[(iii) by or to any person named in the Confidential Schedule for purely private and personal purposes and in confidence, (that is, on the express understanding that there will be no further disclosure of the Information), with their closest friends, their immediate family and professional advisers.]
Confidential Information in Statements of Case
2. Anything which may reveal any information or purported information described in the Confidential Schedule to this Order shall be excluded from the statements of case served in this action, and included in a separate schedule served with the statement of case.
3. Pursuant to CPR 5.4C(4) any person who is not a party to this action may not obtain from the court records any copy of any confidential schedule served with any statement of case. Any non party seeking access to or copies of any confidential schedule from the court file must make an application to the Court, having previously given at least 3 days' notice of the application to the solicitors for the parties.
4. If any non-party at any time makes an application to the Court under CPR 5.4C(2) for permission to obtain from the Court records a copy of any other document, other than a statement of case, or of any communication, such non-party must give at least 3 days' notice of the application to the solicitors for all parties.
Provision of Documents and Information to Third Parties
5. The Claimant shall not be required pursuant to CPR 25 PD 9.2 or otherwise to provide any third party served with a copy of this order with:
(a) a copy of any materials read to or by the Judge, including material prepared after the hearing at the direction of the Judge or in compliance with the order; and/or
(b) a note of the hearing
save where the third party (1) specifically requests the same and (2) provides written undertakings to the court (i) that these documents will not be copied or reproduced except for the purposes of any application to vary or discharge this Order (ii) that they will be kept securely and (iii) that these documents and the information contained therein shall only be used (save to the extent that such information is already in the public domain) for the said purposes.
6. Any person who has made any such request may apply to the Court to vary these provisions or for directions.
Hearing in Private
7. Pursuant to CPR 39.2(3)(a)(c) and (g), the hearing of the application to which this order relates be heard in private and pursuant to section 6 of the Human Rights Act 1998, there be no reporting of the same. For the avoidance of doubt, nothing in this provision shall prevent the reporting of the Court's public judgment dated 5 November 2010.
Variation or Discharge of this Order
8. The Defendant or anyone served with or notified of this Order may apply to the Court to vary or discharge this Order (or so much of it as affects that person), but they must first give not less than 48 hours written notice to the Claimant's solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Claimant's solicitors at the time of giving notice or as soon as possible thereafter".
Undertakings given to the Court by the Claimant:
(1) If the Court later finds that this Order has caused loss to the Defendant and decides that the Defendant should be compensated for that loss, the Claimant will comply with any Order the Court may make.
(2) If the Court later finds that this Order has caused loss to any person or company (other than the Defendant) to whom the Claimant has given notice of this Order, and decides that such person should be compensated for that loss, the Claimant will comply with any Order the Court may make.
(3) If for any reason this Order ceases to have effect the Claimant will forthwith take all reasonable steps to inform, in writing, any person or company to whom he has given notice of this Order, or who he has reasonable grounds for supposing may act upon this Order, that this Order has ceased to be of effect.
(4) The Claimant will as soon as reasonably practicable give notice of this Order to the Defendant and will take all practicable steps to serve the Defendant with this Order and all supporting documents.
Undertaking given to the Court by the Claimant's solicitors:
The Claimant's solicitors will prepare and retain until the conclusion of this intended action a full note of the hearing at which this Order was made."