S.r.c. On Behalf Of N.s.e.c. V. E.k.
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2013] CSOH 56 |
| Court | Court of Session |
| Published date | 12 April 2013 |
| Year | 2013 |
| Date | 12 April 2013 |
| Docket Number | A285/08 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 56 | |
| A285/08 | OPINION OF LORD BRAILSFORD in the cause SRC on behalf of NSEC Pursuer; against EWAN KEMP Defender: ________________ |
Interested Party: Clancy, QC; Brodies LLP
Amicus curiae: Duncan
12 April 2013
[1] This was an action for personal injuries concerning a young lady who was rendered blind as a result of medical negligence. The action was raised at the instance of the young lady's mother who sued in a representative capacity because of her daughter's minority. After sundry procedure, the action was settled on 18 November 2010 by the acceptance of a tender. There followed further procedure in relation to expenses. The exact nature of these proceedings is not germain to the issue now before the court. On 13 May 2011, on the pursuer's motion of consent, the I pronounced the following interlocutor:
"The Lord Ordinary, on the pursuer's motion, of consent, dispenses with the requirements of Rule of Court 23.3; makes an order under section 11 of the Contempt of Court Act 1981 prohibiting the publication of any information that may disclose details calculated to identify the pursuer, makes an order prohibiting publication of any details of the pursuer, and makes an order prohibiting the publication of the name of the pursuer; in addition, grants an order under section 46(1) of the Children and Young Persons (Scotland) Act 1937 and accordingly directs that no newspaper report shall reveal the name, address, or school, or any particulars calculated to lead to the identification of the child who is the subject matter of this action, who is under the age of 17 years and in respect of whom the proceedings are taken."
Following the issue of my interlocutor dated 13 May 2011 the British Broadcasting Corporation ("BBC") enrolled a motion to challenge those orders which was heard on 17 May 2011. The motion enrolled by the BBC was in the following terms:
" On behalf of the British Broadcasting Corporation (1) recall the order granted by the Lord Ordinary on Friday 13 May under section 11 of the Contempt of Court Act 1981; and (2) to amend the order granted by the Lord Ordinary under section 46(1) of the Children and Young Persons (Scotland) Act 1937 to read 'grants an order under section 46(1) of the Children and Young Person's (Scotland) Act 1937 as amended by the Broadcasting Act 1990 and accordingly directs that no newspaper report or report in a programme service shall reveal the name, address, or school, or any particulars calculated to lead to the identification of the child who is the subject matter of this action, who is under the age of 17 years and in respect of whom the proceedings are taken.'"
When that motion called no party to the action had any interest to oppose the application made by the BBC. The second part of the motion was essentially a correction of drafting of the original interlocutor. Counsel instructed on behalf of the BBC informed me that the issue raised in the first branch of the motion, the scope and effect of the order under section 11 of the Contempt of Court Act 1981, was one which concerned the BBC and, as a matter of probability, other broadcasters and publishers. I was told there had been "numerous instances" of the BBC and others seeking the recall and modification of such orders. The BBC accepted that their interest was to ensure, insofar as consonant with the law, as great a degree of freedom to report proceedings in court as was possible. The BBC further contended that the stance taken by them was in the public interest. Against that background the BBC's submission was that the court did not have the power to allow the name of the pursuer to be withheld in a damages action in respect of which a section 11 order had been made. It was submitted that there was nothing in the Rules of Court which sanctioned anonymity in proceedings such as these. It was submitted that there was no statutory foundation to justify anonymity in a damages action of this sort. As a matter of general principle court proceedings were public and it was submitted when the court proposed to depart from that principle there required to be authority justifying that action. Beyond those submissions it was submitted that granting anonymity in circumstances such as the present case contravened the provisions of article 10 of the European Convention on Human Rights (ECHR) which provides the right to freedom of expression. Having regard to the apparent importance of the issue and the absence of any party able or willing to express any contrary argument, I determined that it was expedient to continue the matter and investigate the possibility of the appointment of an amicus curiae in order to ensure that all arguments on this topic were ventilated. An application was made in accordance with current practice and in due course an amicus curiae was appointed.
[2] The statutory provision under consideration in this issue is section 11 of the Contempt of Court Act 1981. That provision is in the following terms:
"In any case where a court (having the power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of the name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for it was so withheld."
In the course of discussion articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") were also referred to. Those articles are in the following terms:
"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 in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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. This Article shall not...
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