Dft v Tfd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Sharp |
| Judgment Date | 27 September 2010 |
| Neutral Citation | [2010] EWHC 2335 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10X03428 |
| Date | 27 September 2010 |
[2010] EWHC 2335 (QB)
Before: The Hon Mrs Justice Sharp
Case No: HQ10X03428
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Hugh Tomlinson QC (instructed by Schillings) for the Applicant
Mr John Critchley (instructed by Moss Beachley Mullem & Coleman) for the Respondent
Hearing dates: 16 – 17 September 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.
THE HONOURABLE MRS JUSTICE SHARP
Mrs Justice Sharp:
This is the return date hearing of an application by the applicant to restrain the publication of what is said to be private and confidential information.
The first hearing
On 9 September 2010 (the first hearing) I heard an urgent without notice application for an interim injunction in this matter to restrain the publication of what was said to be private and confidential information. No proceedings had yet been issued, and the application was made without notice to the (then intended) respondent, or to the media. Hugh Tomlinson QC appeared for the applicant, as he does at this return date hearing.
At the outset of the first hearing, and indeed this one, I made orders pursuant to CPR 39.2(3) (a), (c) and (g) that each should be conducted in private. I was satisfied it was necessary to do so having regard to the nature of the application (which would otherwise be self- defeating).
Evidence relating to the substance of the application and to the reasons why the court was being asked to make orders which derogated from the principles of open justice and from the civil procedure rules was placed before the court in confidential schedules to the witness statements of the applicant, his solicitor, Mr Benaim of Schillings, and from a member of a firm of security consultants engaged by the applicant.
Broadly, it was (and is) said that the respondent had been blackmailing or attempting to blackmail the applicant, and has threatened to make public private and confidential information concerning a sexual relationship between them unless she was paid very substantial sums. There was evidence that she may not have been acting alone, and that some of her family may have been involved. Shortly before the application it had been made clear to her that no money would be paid, and it was now suspected that the respondent had been in touch with journalists with a view to fulfilling the blackmail threat. However, there was no evidence as to the identity of those journalists, or that any media organisation had shown an interest in the information. There was (and is) in my view, cogent evidence before the court which supports the applicant's case in all these respects.
There was also a real concern having regard to these matters, that if the respondent found out (or was ‘tipped off’) about the application she might avoid service and/or attempt to frustrate any order made before she could be served.
In these circumstances I considered it appropriate for an order to be made without notice either to the respondent or to the media (see ASG v GSA [2009] EWCA Civ. 1574 at [3] for the position when there is an allegation of blackmail; and TUV v Persons Unknown [2010] EWHC 853 (QB) where Eady J considered the issue of prior notification of the media, in particular his observations at [23] to [26]).
I granted the injunction for the limited period asked for (that is for 7 days) until the return date. The order provided for the anonymity of the parties, for the restriction of access to documents on the court file, so that none of the confidential annexures to the witness statements or the names of the parties would be provided to non parties without further order of the court; and for a derogation from CPR 25 PD. 9.2 in that the applicant was not required to provide the material provided to the court, or a note of the hearing on those third parties served with the order unless they specifically asked for that material and gave undertakings to protect the use of that material and the information it contained.
The need for such provisions has to be considered on a case by case basis, but they are not uncommon in privacy cases providing (in essence) practical solutions to the inevitable danger that the application itself will result in what is said to be private information becoming public (see for example, what is said in Terry (previously LNS) v Persons Unknown [2010] EWHC 119 (QB) at at [22]).
The order also provided that there should be no report of the existence of the proceedings themselves. I considered that provision in particular to be necessary for a short period because of the ‘tipping off’ risk to which I have referred. As Tugendhat J said in Terry:
“138. The reason why, on some occasions, applicants wish for there to be an order restricting reports of the fact that injunction has been granted is in order to prevent the alleged wrongdoer from being tipped off about the proceedings before an injunction could be applied for, or made against him, or before he can be served. In the interval between learning of the intention of the applicant to bring proceedings, and the receipt by the alleged wrongdoer of an injunction binding upon him, the alleged wrongdoer might consider that he or she could disclose the information, and hope to avoid the risk of being in contempt of court. Alternatively, in some cases, the alleged wrongdoer may destroy any evidence which may be needed in order to identify him as the source of the leak. Tipping off of the alleged wrongdoer can thus defeat the purpose of the order.
139. If a prohibition of the disclosure of the making of the injunction is included in an order for the purpose of preventing tipping off, and if the order provides for a return date (as the Practice Direction envisages) then the prohibition on disclosure may normally be expected to expire once the alleged wrongdoer has been served with an injunction, or at the return date (whichever is earlier).”
After the hearing
In a second witness statement Mr Benaim has set out what has happened since the first hearing. The respondent was served with the order on the day it was made. She instructed solicitors only yesterday, and a brief witness statement from her was put before the court yesterday. She says that she strongly disputes the allegations made against her, but she consents to the continuation of the injunction granted last week until trial or further order for what are said to be pragmatic reasons. This was confirmed to me by Mr John Critchley who appears on her behalf. It is nonetheless necessary for the court to be satisfied that the order should be continued because of the provisions of section 12 (3) of the Human Rights Act 1998.
A number of media organisations have also been served with copies of the order, as I was told they would be at the first hearing. Two of them including Guardian News Media Limited, asked for copies of the material supplied to the court on the last occasion; and I have received a letter from Ms Gill Phillips, the Director of Editorial Legal Services of Guardian News Media. Ms Phillips says that this does not appear to be the sort of case that Guardian News Media would wish to be further involved with, but sets out some general considerations and various points about the terms of the order which I have considered.
The law
The relevant principles may be summarised as follows.
Interim relief before trial. Since this is an application which, if granted, might affect the exercise of the right to freedom of expression, section 12 of the Human Rights Act 1998 applies and no relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
“As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial.” See Cream Holdings Ltd v Banerjee [2005] 1 AC 253, at [22] per Lord Nicholls.
Private information. When considering whether the publication of information which is said to be private should be permitted, the court must first decide whether the information in question is private, that is whether the claimant has a reasonable expectation of privacy in respect of that information such that the claimant's rights under Article 8 of the European Convention on Human Rights are engaged (stage 1). If yes, the Court must then engage in a balancing exercise, weighing the Article 8 rights of the...
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