Amm v Hxw
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 07 October 2010 |
| Neutral Citation | [2010] EWHC 2457 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10X03597 |
| Date | 07 October 2010 |
[2010] EWHC 2457 (QB)
Before: The Honourable Mr Justice Tugendhat
Case No: HQ10X03597
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Mark Warby QC and Miss Victoria Jolliffe (instructed by Olswang) for the Claimant
Mr Hugh Tomlinson QC (instructed by JMW Solicitors LLP) for the Defendant
Hearing dates: 4 October 2010
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 Tugendhat:
4 October 2010 was the return date fixed on 21 September for the hearing of the Claimant's application for an injunction to restrain the publication of information which he claims to be private. On 21 September Edwards-Stuart J granted an injunction which had effect up to and including 4 October. On 4 October I continued the injunction subject to some variations to its provisions. By that time the Defendant was represented by Mr Tomlinson, and the revised wording of the order was the result of arguments advanced by Mr Tomlinson, which were largely accepted by Mr Warby.
Both Edwards-Stuart J and I also made an order under CPR 39.2(3) (a), (c) and (g) that the applications be heard in private. We both also made orders that the identity of the two parties must not be disclosed. For reasons set out more fully below, these two provisions of the orders were necessary in the interests of justice, since without them the publicity about each hearing would have defeated the object of the application. At the close of the hearing on 4 October I stated that I would give reasons why I made the order, and these are they. Although the hearing was in private, this judgment is public.
The application for the order of 21 September was not served on any media or other third party. One provision of the order made that day required the Defendant to name any journalist to whom she had already disclosed all or any of the information the publication of which was prohibited by the order. As a result, by a statement dated 24 September, the Defendant named certain journalists. Following that, the Order of 21 September was served on Associated Newspapers Ltd (“ANL”), the publishers of the Daily Mail. Journalists from ANL approached the Claimant's solicitors for comments about the injunction. In response to this approach for comment, the Claimant's solicitors served ANL with a copy of the Order of 21 September.
But although 4 October is the return date (that is the opportunity for the Defendant to contest the making of a further order by evidence and argument), she has not availed herself of that opportunity. She has not put before the court any evidence to contradict the evidence of the Claimant. Nor has Mr Tomlinson advanced submissions as to why a further injunction should not be made. He confined himself to submissions on the wording of the order.
Nor has ANL contested the making of the order, although it was served with the order of 21 September. As appears from an article in the Daily Mail dated Thursday September 30 (“the Daily Mail article”), ANL was in any event aware of the 4 October date. ANL has made no communication with the court in any form. If ANL had made any representations to the court, whether orally or in writing, then they would have been considered, just as the court would consider the representations of any third party affected by the order.
On 27 September, in the interval between the two hearings, Sharp J handed down her judgment in DFT v TFD [2010] EWHC 2335 (QB). Also in that interval the Daily Mail article was published. The article was not only about the first hearing of this case on 21 September, but also about another injunction, apparently the DFT case. The Daily Mail article included the following:
“ TV celebrity wins court order gagging his ex-wife.
A married TV star has won a court gagging order to prevent details of his private life being published.
The celebrity, who has a huge public profile has obtained an injunction stopping his ex-wife writing about their relationship and claiming that they had a sexual affair after he remarried.
Neither the married man nor his ex-wife can be identified, but he becomes the latest figure to use the courts to protect his privacy.
Yesterday, it emerged that another married public figure had won a footballer-style gagging order to hush up his infidelity.
He had claimed it would be 'very distressing' if his sexual encounters with a woman, which took place in his home, were revealed. A High Court judge agreed that it would breach his human rights and granted him an injunction after hearing that the woman was trying to blackmail him by threatening to expose their relationship unless he paid a 'very substantial sum' of hush money.
The latest injunction contains the same anonymity provisions which protect the identity of the TV star, raising questions over whether blackmail is involved.
The injunction, granted by Mr Justice Edwards-Stuart and effective until October 4 prevents the ex-wife disclosing her claims that they had a sexual affair since he remarried.
Details of the other case, involving the married public figure, were initially secret because he obtained a 'super-injunction' similar to the one footballer John Terry used to prevent the public learning he had cheated on his wife.
Super-injunctions mean the media cannot even report that a gagging order has been granted.
Limited details of the cheating public figure's case can be disclosed because the High Court agreed that the risk of them leaking on to the internet could never be eliminated.
The order obtained by the TV star is not a super-injunction. But it prevents his ex-wife from publishing any details of their life together…”
The Order that I made includes a provision similar to that made by Sharp J and noted at para 41 of her judgment. It is that the Defendant must not disclose (or cause anyone else to disclose) any information concerning the identity of the parties or information liable to lead to the identification of the parties, save for that contained in any public judgment of the court. My Order is subject to a number of exceptions. One exception is to permit republication of any material which was already in the public domain, or that thereafter came into the public domain as the result of national media publication (other than as a result of breach of the Order).
It is not suggested by anyone that the information in the Daily Mail article was published as a result of a breach of the order of 21 September. But as discussed below, the fact that that information has been published in the interval limited the options available to the court as to the form of the order that was to be made on 4 October.
It is correct that the Claimant is a married TV star and that the Defendant is his ex-wife. It is also correct that the Defendant has claimed that she and he had a sexual affair after the Claimant remarried. But the Claimant in his witness statement denies that allegation. And the Defendant has not gone so far as to put her claim that there was such a relationship into an affidavit or witness statement submitted to the court. She has only made that claim by other means which are less formal.
The Defendant does not, at this stage of the proceedings, raise any defence to the claim. She does not consent to the injunction, but neither does she put forward arguments as to why it should not be granted.
In the present case there is an allegation that blackmail is involved. The Claimant alleges, and has adduced evidence to support his allegation, that the Defendant has demanded money from him. He alleges that she had done so with threats that if he did not pay then she would publish the claims she had already made, and other detailed information about their relationship. The Defendant has not denied that she has demanded money from him in this way.
Whether or not the court prohibits the Claimant from disclosing information about herself and the Defendant is largely a matter between the parties to the action, the Claimant and the Defendant. Whether or not the court makes an order prohibiting the disclosure of the identity of the Claimant (“anonymity order”) raises wider issues: it is a derogation from the principle of open justice.
Even though the Defendant does not oppose the injunction, the Claimant must persuade the court that an injunction ought properly to be granted. My reasons for prohibiting the Defendant from disclosing information about herself and the Defendant are as follows.
There is credible and uncontradicted evidence from the Claimant that the Defendant has threatened to disclose information about his private life, in particular about his sexual life, which the public has no right to know, and which the Defendant has no right to publish or disclose. Injunctions prohibiting the disclosure of information about a marriage and about sexual relationships have been granted by the courts since at least 1967: see Argyll v Argyll [1967] Ch 302; Stephens v Avery [1988] 1 Ch 449. They have become more frequent in recent years. Such injunctions may be granted whether the information threatened with publication is true or false: McKennit v Ash [2007] EWCA Civ 1714; [2007] EMLR 113 (CA) [78]-[80].
There is credible and uncontradicted evidence before this court that publication of such information by the Defendant would be highly damaging to the private life of the Claimant and to that of other persons whose private lives would be interfered with. Damages would not be an adequate remedy.
Neither the Defendant nor ANL has advanced any argument that it would be in any way in...
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