A v B
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 13 July 2005 |
| Neutral Citation | [2005] EWHC 1651 (QB) |
| Date | 13 July 2005 |
| Court | Queen's Bench Division |
[2005] EWHC 1651 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Eady
Richard Spearman QC (instructed by Schillings) for the Claimant
David Sherborne (instructed by Mishcon de Reya) for the first Defendant
Andrew Caldecott QC and Catrin Evans (instructed by Reynolds Porter Chamberlain) for the second and third Defendants
Hearing dates: 15th and 16th June 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady:
The Claimant's application
The Claimant ("A") seeks an injunction against the publishers of a magazine to restrain publication in this jurisdiction, whether by way of an on-line version of its United States edition or by way of the United Kingdom edition in hard copy, of allegations about his personal life on the ground that they could properly be characterised as confidential information. The publishers of the US edition and of the UK edition are "D" and "C" respectively. The hearing was very much a last minute affair and seemed to develop as it went along. It began as an application for relief against A's wife ("B") to restrain her from communicating such allegations on the basis that she had given an interview to a journalist with a view to publication in the next edition of the magazine, primarily about herself and her business activities, but which apparently touched upon A in certain respects.
It is not possible for the Court to know precisely in what respects the article will contain allegations against A because no transcript of the interview is available and, unsurprisingly, the publishers of the magazine were not prepared to reveal what passed between them or, save to a limited extent, the content of the proposed article. On the second day of the hearing Mr Caldecott QC was in a position to pass on instructions from his clients with the intention of allaying some of A's concerns and, in particular, indicating a number of areas of his past activities which were not to be covered.
At 2 p.m. on 15 th June 2005 Mr Spearman QC for the Claimant launched his application by reference to evidence and correspondence primarily directed to the remedy sought against his client's wife, but it gradually emerged that for reasons of time pressure he needed to focus on the publishers because the relevant edition of the magazine was about to go to press. His original intention had apparently been to obtain an injunction against his wife and then to serve copies upon the publishers, hoping thereby to restrict their article 10 rights indirectly by reliance upon the Spycatcher principle: see e.g. Att.-Gen. v Times Newspapers Ltd [1992] 1 AC 191.
Although the application was made without formal notice, the solicitors for B and those representing the publishers had been informed that the hearing was to take place. Accordingly, Mr Sherborne appeared for B and, at very short notice, Mr Caldecott QC and Ms Evans for the publishers.
After Mr Spearman had been addressing the Court for about an hour, Mr Sherborne asked for clarification as to the relief sought. It was at this point that it was recognised by Mr Spearman that he needed to concentrate on the publishers; indeed, B had already indicated, through solicitors, that she had no intention of revealing any information which could be classified as confidential. Mr Sherborne therefore chose to remain primarily as an observer. Mr Caldecott, for the publishers, found himself in an unusual position because, although the focus was now upon his clients and their imminent publication, it remained the case that (i) they had not been served with the proceedings or any application notice (even in draft form), and (ii) they had not seen any of the evidence relied upon.
Mr Spearman explained his dilemma. The exhibits to his client's witness statement included statements of A and B used in matrimonial proceedings pending between them. Mr Spearman was seeking permission from the Court to rely on those documents in the present proceedings for various reasons, including particularly (a) that he wished to show the nature of the allegations in the matrimonial proceedings in order to illustrate some of the confidential material his client needed to protect, and (b) that some of the allegations he apprehended were to be published in the magazine bore a close resemblance to evidence given by his wife in those proceedings, thus suggesting (he submitted) that she might very well be the source. Mr Spearman was reluctant, however, to pass that information to Mr Caldecott's clients unless suitable undertakings were received. Mr Caldecott made it plain, however, that he would rather not see those documents and, for the time being at least, was content to have the other evidence without those exhibits.
By that stage, because of interruptions in connection with a quite different case, it was 4.50 p.m. and the Court adjourned until 11.15 a.m. on 16 th June. Meanwhile, Mr Caldecott had obtained information from his clients to the effect that the US edition of the magazine would need to go to press by approximately 5 p.m. that day (UK time) but that the UK edition would probably not need to be printed for another ten days. That apparent leeway, however, was less reassuring than might appear since not only did the publishers wish to have the UK edition correspond to the content of the US edition but also, once the US edition had crystallised, that was the form in which the on-line edition would be made available, including within the United Kingdom.
It was thus obvious that the application still had to be made on an urgent basis, which placed the advocates under rather severe time constraints. What is more, the publishers had not been given adequate notice to respond, if they so wished, by evidence. This factor of delay can be important when the court is asked to grant equitable relief, although Mr Caldecott did not seek to place great emphasis upon it. He regarded it simply as one matter to be taken into account. He preferred to rely on objections of more substance.
There is also the important consideration that the court was being asked to circumscribe the publishers' freedom of expression. That has always been regarded as a step that the court is reluctant to take and, to justify the making of such an order, evidence is required to demonstrate that it is a necessary step and that it would be effective for the purpose of protecting some countervailing right on the part of the relevant claimant. Obviously, if the order would have only a limited effect in achieving the claimant's objective it is likely to be argued that the relief sought is not going to be proportionate to the restriction upon the defendant's article 10 rights. These principles have been reinforced in recent years by the jurisprudence of the European Court of Human Rights and, in particular, by the requirements of s.12 of the Human Rights Act 1998 which has recently received the attention of appellate courts, including in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, Greene v Associated Newspapers Ltd [2005] 1 All ER 30 and Re S (FC) [2005] 1 AC 593.
I am conscious that the step I am invited to take is a very serious one. There is the added complication that the US publishers are not within the jurisdiction of the Court, not only in the geographical sense but also because they have not been served with English process—let alone submitted to the jurisdiction. Nor have they committed any relevant tort within England and Wales. There is an English company within the jurisdiction (C), but any relief granted against that entity would not necessarily be effective to prevent publication in this jurisdiction, or indeed anywhere else, of the US edition on-line. It is the intention of the Claimant to join both companies nevertheless and, in the case of the foreign corporation, to rely upon the provisions of CPR 6.20(2) which enables the court to order service out of the jurisdiction, in a proper case, where a claim is made for an injunction to restrain an act within the jurisdiction.
It is necessary now to focus on the relief sought against the background circumstances in which Mr Spearman came to make his application. By the conclusion of proceedings on the first day, he had still not reduced into writing the terms of the injunction he was seeking against the publishers, but merely indicated that it was broadly analogous to that hitherto formulated in the application against B. Mr Caldecott pointed out that this was hardly apt for the purposes of a claim against his clients for a number of reasons. It was, in part, drafted by reference to information obtained by B by virtue of her marriage and was, in any event, cast in very broad and what purported to be "catch all" terms. It is elementary that any defendant is entitled to know with as much precision as possible what it is that he or she is restrained from doing. More specifically, it was Mr Caldecott's submission that to purport to restrain the publication of information merely as "confidential" or as "having been obtained by virtue of marriage", or words to that effect, is simply too vague to be effective.
What does the Claimant need to establish?
It is also elementary that the court must be persuaded before granting quia timet relief (by way of what Blackstone called "previous restraint") that there is evidence, at least in general terms, of what it is that the defendant is likely to publish. In this instance, it would be necessary to show that the publishers of the magazine are intending to publish information falling...
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