Hutcheson (formerly Known as "wer") v Popdog Ltd (formerly known as "rew") News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Mark Potter,Lord Justice Patten,Lord Justice Lloyd,THE MASTER OF THE ROLLS,The Master of the Rolls,Lord Justice Etherton,Lord Justice Gross |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1228,[2011] EWCA Civ 1580,[2011] EWCA Civ 454 |
| Docket Number | Case No: B4/2010/2754,Case No: A2 2010/2764,Case No: A2/2010/2764 & 2764(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2011 |
and
The Master of the Rolls
(Lord Neuberger of Abbotsbury)
Case No: A2 2010/2764
IN THE COURT OF APPEAL
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Tomlinson QC (instructed by Schillings Solicitors) appeared on behalf of the Appellant.
Ms Adrienne Page QC (instructed by Charles Russell Solicitors) appeared on behalf of the Respondent.
(As Approved)
In my view, the right order to make is that this application for permission to appeal, coupled with the application to lift the embargo on Eady J's judgment, should be heard together in front of three judges. It seems to me, without going into great detail, that the issues raised on the projected appeal could be of some general importance.
As far as the effect of an interlocutory injunction on a third party is concerned, paragraph 1 at the top of the second page of Eady J's order might be taken to support the proposition that an interlocutory injunction ceases to bind third parties on a "Spycatcher" basis when the claim is no longer going to go to trial. The contrary view might be that, until the court varies the order, it does bind third parties, and that there is a concomitant duty on a claimant who has got such an order to tell the court if and when the matter will not or might not be going on to trial. That is a point potentially of some importance.
Secondly in Eady J's judgment there is, arguably at least, reliance on the Buffham principle which could be said to be ripe for consideration by this court and of general importance.
On the other hand, it can be said that these issues are ultimately academic in this appeal because of the decision in the earlier case by this court in the KGM case—see Gross LJ's judgment. Further, it is News Group Newspapers, the interveners opposing this application, who would most benefit from guidance, but it is WER, the individual claimant, who wishes to appeal,.
There is a connection also between the possibility of permission to appeal on the publication of the judgment, because at the moment the judgment is subject to an embargo and therefore paragraph 5, and arguably even paragraph 1, of the order to which I have referred, may not have very much effect.
The only case which I have been taken to where the Court of Appeal has recently considered whether an academic point should be permitted to be argued in the Court of Appeal is Bowman v Fels [2005] 1 WLR 3083, and there (see paragraph 15) all parties wanted it to come here. There is something unattractive about the claimant wanting to come here on a conditional fee basis. He is on a free ride, even if he loses, whereas News Group Newspapers are at risk of particularly high costs if they lose.
The only issue at stake on any appeal could be the fairly small amount of costs which were ordered by Eady J against WER: that does not really impress me as a powerful factor, particularly in the light of the costs position on any appeal.
I have reached the pretty clear, if rather reluctant, conclusion, (reluctant because there have already been two applications in this court), that there should be an interlocutory hearing, before three Lord or Lady Justices, at which the questions of permission to appeal opening up the judgment are determined. The two are connected. I would not be happy about ordering off my own bat on my own that the judgment should be opened up. I think that it may be useful for this court to consider the application of the Bowman v Fels case in an appeal where one party strongly does not want it brought here. I also think that it may be possible for this court on a permission to appeal hearing, with three members of the court sitting, to express views on, or at least to make warnings about, points decided at first instance, even if permission to appeal is refused. I think it would be oppressive on News Group Newspapers to have a rolled up hearing, by which I mean ordering that there is permission to appeal with appeal to follow immediately afterwards. I think I should respect News Group Newspapers' wishes in this connection, bearing in mind that they are only interveners (although, as Mr Tomlinson has said, they chose to intervene), who are now being brought here against their will really to fight because the actual defendant is not playing any part.
It is unsatisfactory to take this course, but I am convinced, having heard the argument, that to take the alternative courses of refusing permission to appeal, granting permission to appeal, or ordering a rolled up hearing would be more unjust. It may well be that, if at the end of the hearing of the application the court considers that permission to appeal should be granted, it may be in a position to order the appeal to be heard by the same court in very short order and it would not take very long.
I am sorry that this case has ended up with yet another interlocutory hearing, but for the reasons I have attempted to give I think it is the least unsatisfactory course to take.
Order: Application to be dealt with in a rolled up hearing
and
The Master of the Rolls
Lord Justice Etherton
and
Lord Justice Gross
Case No: A2/2010/2764 & 2764(A)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Eady
HQ09X00298
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC (instructed by Schillings) for the Appellant
Respondent unrepresented
Adrienne Page QC (instructed by Farrer & Co) for the Additional party
Hearing date: 7 th December 2011
This is an application for permission to appeal against a decision of Mr Justice Eady given on 17 th November 2010, which I directed should come before a three-judge court.
The background to this application
In January 2009, Mr Christopher Hutcheson issued proceedings, in anonymised form as WER v. REW, against Popdog Ltd, seeking to restrain Popdog from publishing or communicating certain information, relating to his private life ('the Information'). In the same month, Sir Charles Gray, sitting as an additional judge of the Queen's Bench Division, granted Mr Hutcheson an interim injunction ('the Interim Injunction') restraining Popdog from communicating the Information, whose content was summarised in a confidential schedule to the order, 'until after the conclusion of the trial of this claim or further order of this court in the meantime'.
Shortly thereafter, Mr Hutcheson and Popdog reached a compromise whereby they agreed, in effect, that the Interim Injunction would continue for the foreseeable future, and that Mr Hutcheson's claim against Popdog would not otherwise proceed.
Some time during 2010, News Group Newspapers Limited ("NGN") wished to publish the Information, and, in November 2010, they applied to the court to set aside the Interim Injunction. That application ('the Application') came before Eady J on 16 November, and, on the following day, he gave a judgment ('the first judgment').
As Eady J mentioned in that judgment, a party who has notice of an interim injunction is at risk of being in contempt of court if he does something which effectively flouts or undermines the injunction—see, for instance, Attorney-General v Times Newspapers Limited [1992] 1 AC 191, 223–224 and see also Attorney-General v Punch Ltd [2003] 1 AC 1046, 1066. This principle, sometimes known as 'the Spycatcher principle' (see Attorney-General v Newspaper Publishing plc [1988] Ch 333, 375 and 380), is well-established. However, Gray J decided in Jockey Club v. Buffham [2003] QB 462, paras 23–27, that, if and when a final injunction is granted in favour of a claimant, any interim injunction is discharged and replaced by the final injunction, and that a third party, even one who has notice of the final injunction, is not at risk of being in contempt of court if he acts inconsistently with the injunction.
In the first judgment, Eady J explained that, in his view, the effect of Mr Hutcheson and Popdog having settled their differences in the way I have summarised was that Mr Hutcheson was "sitting on an interim injunction as though it gave the permanence and security of a final injunction…but the drawback of a final injunction is that it cannot bite on third parties…. There is no ring to hold." In those circumstances, he held, NGN's application to set aside the Interim Injunction represented "an unnecessarily circuitous route", because the appropriate analysis was that the Interim Injunction had, in practice, ceased to be interim in nature once Mr Hutcheson and Popdog made their agreement, and had therefore ceased to bind third parties such as NGN. Although the Judge refused Mr Hutcheson permission to appeal against that decision, he granted interim relief to ensure that the Information was not published until the question of an appeal had been determined. He also reserved the costs of the Application.
As a result of this decision ('the first decision'), Mr Hutcheson immediately issued...
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