CTB v News Group Newspapers Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 23 May 2011 |
| Neutral Citation | [2011] EWHC 1326 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X01432 |
| Date | 23 May 2011 |
[2011] EWHC 1326 (QB)
The Honourable Mr Justice Eady
Case No: HQ11X01432
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC and Sara Mansoori (instructed by Schillings) for the Claimant
Richard Spearman QC (instructed by Farrer & Co) for the First Defendant
David Price QC (of David Price Solicitors & Advocates) for the Second Defendant
The background to the present applications is to be found in the circumstances which led to the earlier claim for an injunction against the Defendants restraining publication of material in respect of which the Claimant had a reasonable expectation of privacy and which might legitimately be regarded as confidential. The context is more fully set out in my judgment of 16 May at [2011] EWHC 1232 (QB). I now give my rulings following the subsequent arguments that took place on that date.
Mr Spearman QC for News Group Newspapers Ltd (“NGN”) seeks to vary the terms of that injunction because, he submits, there has been such widespread coverage on the Internet since the order was first granted on 14 April 2011 that it would now be pointless for the court to maintain the Claimant's anonymity – notwithstanding the absence of any legitimate public interest. He also argues, unusually, that in any event NGN should be allowed to pass on such information as it has, accurate or not, to the Claimant's wife. I shall need to return to that shortly in an attempt to explain the reasoning.
Although Ms Imogen Thomas was represented by Mr David Price QC, as she had also been on 20 April, he took no part in the argument. Her stance, once again, was that she did not oppose the continuance of the injunction.
Meanwhile, Mr Tomlinson QC for the Claimant applies for an order under CPR 31.12 for specific disclosure of documents against NGN. He recognises, of course, that disclosure applications are rarely made at such an early stage in proceedings. Nevertheless, he says that it is a course warranted by these particular circumstances. In particular, he argues that it would be both necessary and proportionate to have disclosure of certain documents at this juncture because Mr Spearman seemed to be placing emphasis, in support of his application to vary the injunction, upon the “clean hands” of NGN and its employees. He argues that there is no reason to blame NGN for the emergence of allegations or deductions on Twitter or elsewhere on the Internet and that, accordingly, it should not be placed at a disadvantage vis-à-vis its commercial rivals as to what it can publish. (That is not easy to follow, since NGN is in no worse position than any other media group served with the order.) In effect, Mr Tomlinson submitted that I could not fairly decide the outcome of Mr Spearman's application to vary unless I had seen the extent of any email traffic passing between NGN staff and third parties on this subject-matter. In other words, he invited the court to be sceptical and not accept Mr Spearman's “clean hands” case at face value.
I asked that Mr Spearman clarify to what extent he was actually relying on “clean hands”, as opposed to merely observing that the Claimant's advisers had not produced any direct evidence of NGN collaboration with tweeters and bloggers. He replied rather neutrally. I think the effect of what he said was that it would be rather time-consuming and burdensome for NGN to carry out the necessary research to enable them to advance a positive “clean hands” case. All he was doing, therefore, was to point out that Mr Tomlinson could not directly attribute any responsibility, on the evidence as it stands at the moment, to NGN employees for the material appearing on the Internet. That is probably true, for the time being at least, but Mr Tomlinson was ready to draw realistic inferences and invited the court to do the same. He suggests it is merely fanciful to suppose that no one at NGN has breached the confidence and/or sought to undermine the order.
Nonetheless, for present purposes, there is a potentially important distinction between Mr Spearman's advancing a positive “clean hands” case, as he appeared to be doing at the outset, and his merely saying that the Claimant is unable to prove a direct link. The potential significance is that the court does not have to make a finding on that point and, therefore, does not need disclosure to assist in its task.
I am satisfied that Mr Spearman's application to vary the injunction can be resolved without a prolonged investigation of email traffic within NGN. The outcome need not depend on the extent to which NGN employees have or have not leaked the Claimant's identity themselves. While I would not agree with Mr Spearman that the application is based on “flawed logic”, I do take the view that the disclosure sought is unnecessary and would be disproportionate to the present exercise.
What Mr Tomlinson did rely on, however, were the terms of a broadcast by Mr Kelvin MacKenzie on BBC Radio on the morning of 30 April, when he claimed that he regularly passed on the identities of claimants who had been granted injunctions to anyone who asked him. He obviously does not approve of the current law of privacy and makes it his business to undermine court orders accordingly. He also likes to drop hints in his articles to give any interested readers a steer as to who might be covered by an order. Mr Tomlinson described this as “playing games”. It is necessary to remember in this context that Mr MacKenzie is no longer an employee of NGN. He seems to be, in legal terms, an independent contractor. His activities could not necessarily, therefore, be attributed to NGN.
The order sought on the Claimant's behalf was that NGN should:
a) conduct a search of its email system including any backup servers;
b) disclose all emails located as a result of that search sent by Kelvin MacKenzie to any external email address during the period 14 April 2011 to 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
c) disclose any other emails located as a result of that search sent by anyone employed by the First Defendant to any external email address during the period 14 April 2011 to 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
d) disclose the recipient email address of any emails disclosed pursuant to (b) and (c) above;
e) disclose any other documents including SMS text messages created by Kelvin MacKenzie between 14 April 2011 and 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
f) disclose any other documents including SMS text messages created by anyone employed by the First Defendant between 14 April 2011 and 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
g) disclose each and every recipient of any document disclosed pursuant to (e) and (f) above.
What was suggested was that these requirements should be complied with by 20 May 2011, although Mr Spearman suggested that if it were to be carried out, the exercise would take far longer. I do not find that surprising. Mr Tomlinson accordingly confined his request at the hearing to a search for any documents evidencing traffic between NGN staff and Mr MacKenzie and also for any communications from Mr MacKenzie's Sun email address (as prominently displayed at the head of his weekly column) to third parties. It still seems to me, however, to be unnecessary for the purpose in hand to spend precious time and money in enquiring into the detail of what Mr MacKenzie was up to. It would be something of a sledgehammer to crack a nut.
There is another aspect to this application which causes me some concern. The proposed exercise, if carried out, might reveal attempts to undermine the orders of the court and thus suggest that...
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