Gray v UVW
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 21 October 2010 |
| Neutral Citation | [2010] EWHC 2367 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10X03949 |
| Date | 21 October 2010 |
[2010] EWHC 2367 (QB)
Before: The Honourable Mr Justice Tugendhat
Case No: HQ10X03949
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Miss Caroline Addy (instructed by JMW Solicitors) for the Claimant
The Defendant appeared in person
Hearing dates: 15 October 2010
Mr Justice Tugendhat
The general rule is that the names of the parties to an action should be included in the orders and judgments of the Court: In re Guardian News and Media Ltd [2010] 2 WLR 325; [2010] UKSC 1 para 22 (“ Guardian”). There is no general exception for cases where private matters are in issue. Such matters are commonly litigated in public, for example in the employment tribunal, and in claims for personal injury and medical negligence, and in the criminal courts: ibid para [22] and Re S (a child) [2004] UKHL 47, [2005] 1 AC 593. Nor is there any general exception to this principle for claims for injunctions to restrain publication of private information: see eg Argyll v Argyll [1967] Ch 302, Lord Browne of Madingley v Associated Newspapers Ltd [2008] 1 QB 103, [2007] EWCA Civ 295, [2007] EMLR 538 at para [3] and Commissioners for HMRC v Banerjee [2009] EWHC 1229 (Ch).
When an application for an injunction is made before the issue of a claim form the applicant will be required to undertake to the court to issue a claim form immediately: CPR 25 PD25A para 4.4(1). It is of the utmost importance that applicants and their legal representatives ensure that such undertakings are complied with.
It is the duty of legal representatives, both counsel and solicitors, to see that correct legal procedures and forms are used. This principle is established in relation to applications made without notice ( Memory Corpn v Sidhu (No 2) [2000] 1 WLR 1442, 1460). But it must apply equally in cases where the court is obliged to have regard not only to the interests of the parties, but also to the interests of the public. In such cases the public are in a position analogous to a defendant against whom an order has been sought without notice.
An application for an order that the names of the parties or the subject matter of the action be not disclosed is a derogation from the principle of open justice and an interference with the rights of freedom of expression of the public at large. The jurisdiction of the court to restrain publication of names and the subject matter of the dispute is derived from the Human Rights Act 1998 (“ HRA”) s.6 (duty of the Court not to act in a way which is incompatible with Convention rights) and Arts 2, 3 and 8. Where the court is asked to restrain the publication of the names of the parties and the subject matter of a claim on the ground that restraint is necessary under Art 8, the question for the court is whether there is sufficient general, public interest in publishing a report of proceedings which identifies a party to justify any resulting curtailment of the right of the party (and members of that party's family) to respect for their private life. For these propositions see Guardian paras 27, 28, 30, 34–5 and 60.
This judgment requires consideration of each of these three principles.
The principle of open justice in English law long preceded the ECHR and the HRA. For its importance see R v Legal Aid Board ex p Kaim Todner [1999] 1 Q.B. 966 per Lord Woolf MR at 977 and R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 at [38]-[42]. So far as material to this case the relevant parts of arts 6 are:
“Art 6: … Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial …where the protection of the private life of the parties so require[s], or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.
Art 6 is similar in substance to the common law as summarised in Guardian. In Scott v Scott [1913] A.C. 417 at 438 and 463 Lords Haldane and Atkinson said:
“(438) …unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is a contest between the parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors… If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, … a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of justice. A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.
(463) … in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect”.
Art 6 also qualifies the word “necessary” with the word “strictly”. It requires that an order be “strictly necessary” where the reason for making the order is that “publicity would prejudice the interests of justice”.
The relevant parts of Arts 8 and 10 are:
“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 is in accordance with the law and is necessary in a democratic society … 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 …
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
THE FACTS GIVING RISE TO THE APPLICATION FOR AN INJUNCTION
A brief outline of the facts that can be disclosed in this judgment is as follows.
The Claimant is a businessman, writer and sometime adviser to the Ministry of Defence and other bodies. He is a well known figure within certain political, educational, business and publishing circles. Over one year ago, the Claimant communicated to the Defendant private information. On 12 October 2010 the Defendant made a communication to the Claimant, following which they exchanged a number of messages. The Claimant became concerned and instructed solicitors. Miss Harris, the solicitor, spoke to the Defendant. The Defendant expressed a willingness to sign an undertaking not to disclose information personal to the Claimant, but the Defendant also made conflicting statements.
On the evidence before me, there were two conversations between Miss Harris and the Defendant in the afternoon of 13 October. According to the evidence, in these conversations the statements of the Defendant were inconsistent, or at least unclear, as to whether there are one or more third persons who have come to know the information in question, and if so whether any such third person is a journalist who is threatening to publish the information more widely. Miss Harris did not receive answers to questions she asked about the third party, if there is one.
In a witness statement the Claimant said that without protection from the court he felt vulnerable to publication by the Defendant of private information. There is no suggestion of blackmail in the present case.
At 11pm on 13 October, before making the application to the duty Judge, but at his request, Miss Addy called the Defendant to ascertain the attitude that the Defendant was adopting to the application for an injunction. The Judge hearing applications made out of hours was Nicol J (“the Judge”). At that stage the Defendant had not seen the witness statements or other documents what were to be submitted to the Judge. The Judge and Miss Addy had in mind HRA s.12(2)(a) (notice to be given to the defendant...
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