JIH v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Smith |
| Judgment Date | 31 January 2011 |
| Neutral Citation | [2011] EWCA Civ 42 |
| Docket Number | Cases No: A2/2010/2745 and 2746 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2011 |
[2011] EWCA Civ 42
Before: Master of the Rolls
Vice President of the Court of Appeal Lord Justice Maurice Kay and
Lady Justice Smith
Cases No: A2/2010/2745 and 2746
Claim No HQ10X3121
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
The Hon MR Justice Tugendhat
QUEEN'S BENCH DIVISION
Mr Hugh Tomlinson QC and Mr David Sherborne (instructed by Berwin Leighton Paisner LLP) for JIH
Mr Richard Spearman QC (instructed by Farrer & Co) for News Group Newspaers Ltd
Ms Gillian Phillips made written representations on behalf of Guardian News & Media Ltd
Mr Marcus Partington made written representations on behalf of The Media Lawyers Association
Hearing date: 14 th January 2011
The Master of the Rolls:
Introductory
The courts are not infrequently asked to make orders preventing the publication of private information, concerning, for instance, the details of a person's finances, health, sexual activities, or family life. In such cases, the claimant is normally (but by no means always) a public figure, and at least one of the defendants is normally (but by no means always) a member of the national media.
When considering what order to make on such applications, it is normally necessary to balance two competing legal rights, each of which constitutes a fundamental feature of a civilised modern democratic society. Those competing rights are an individual's right to "respect for his private and family life", as stipulated in Article 8 of the European Human Rights Convention and relied on by the claimant, and the more general right to "freedom of expression", relied on by the defendant and laid down by Article 10 of the Convention, which also refers to the "right … to receive and impart information and ideas".
In many cases, this balancing exercise is difficult. This is partly because the two rights are rather different in their constituent factors, partly because there are often powerful arguments pointing in opposite directions, partly because each case depends very much on its own particular facts, and partly because the exercise can involve a significant degree of subjectivity.
When the balance comes down in favour of preventing publication, a further problem sometimes arises, namely the extent to which, and the way in which, the parties' evidence and arguments, and the court's reasoning and order, in the particular case can be reported. It would be wrong to permit unrestrained reporting in the normal way, as that would involve publishing the name of the claimant and the details of the information whose publication he seeks to prevent, thereby rendering the court's order pointless. On the other hand, public coverage of court proceedings is a fundamental aspect of freedom of expression, with particular importance: the ability of the press freely to observe and report on proceedings in the courts is an essential ingredient of the rule of law. Indeed the right to a "fair and public hearing" and the obligation to pronounce judgment in public, save where it conflicts with "the protection of the private lives of the parties" or "would prejudice the interests of justice", are set out in Article 6 of the Convention.
The appeal in this case is concerned with this issue of reporting restrictions, and, as both Mr Hugh Tomlinson QC (who appears for the claimant with Mr David Sherborne) and Mr Richard Spearman QC (who appears for the defendant) contend, it therefore raises a point of general concern and of some importance. However, the determination of the precise extent of what can be reported about the proceedings themselves is every bit as fact-sensitive as the anterior exercise of deciding whether to make an order restraining publication of the private information in the first place.
As Maurice Kay LJ said in a recent case raising a somewhat similar issue, Ntuli v Donald [2010] EWCA Civ 1276, para 52, when deciding whether, and if so to what extent, to impose reporting restrictions in relation to legal proceedings, "as part of its consideration of all the circumstances of a case, a court will have regard to the respective and sometimes competing Convention rights of the parties." He went on to say this, two paragraphs later:
"This is an essentially case-sensitive subject. Plainly [the claimant] is entitled to expect that the court will adopt procedures which ensure that any ultimate vindication of his Article 8 case is not undermined by the way in which the court has processed the interim applications and the trial itself. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which [the claimant] is entitled."
An outline of the facts
The facts of this case (in so far as they can fairly be set out in a publicly available judgment concerning information about the claimant's private life, which it is accepted should not be published, at least for the moment, and as they were described by Mr Tomlinson in open court) are as follows. The claimant, known for present purposes as JIH, is a well known sportsman, who has, for some time, been in an apparently long-term and conventional relationship with another person, to whom I shall refer as "XX". Since his relationship with XX had started, but before August 2010, a story had been published, without JIH having received any prior notice, suggesting that he had had a sexual liaison with another person, whom I shall call "YY".
The story whose publication JIH is seeking to prevent concerns an alleged sexual encounter he had with a different person, to whom I shall refer as "ZZ", last year. In August 2010, JIH discovered that the defendant, News Group Newspapers Ltd ("NGN"), had been told of this alleged encounter by ZZ.
On learning that NGN intended to publish a story in The Sun, based on the information provided by ZZ, JIH began the present proceedings in August 2010 without revealing his identity in the publicly available court papers. He immediately made an application seeking an order, on an interlocutory basis (i.e. until the trial of his action), preventing the publication of information contained in a "Confidential Schedule". That Schedule referred to "[i]nformation concerning a sexual relationship or alleged sexual relationship between [JIH] and [ZZ] during the period of his relationship with [XX] …., including the fact or any details of such relationship" (and I think it is clear that "such relationship" is that with ZZ).
JIH's proceedings were served on seven other media companies, and the application was granted in the form of a short term injunction by Nicol J on 13 August 2010, while NGN and the other media companies had the opportunity to consider their respective positions.
Thereafter, having considered JIH's claim and, no doubt, having taken legal advice, NGN entered into negotiations with JIH, with a view to agreeing terms pending the trial of his claim. These negotiations resulted in an agreed form of order in which, to summarise the essence of the agreement for present purposes, until the trial of these proceedings (or further order in the meantime), (a) NGN would submit to an injunction preventing it from publishing "all or any part of the information contained in the Confidential Schedule", save to the extent that any such information was in an open judgment of the court, and, crucially for present purposes, (b) the identity of JIH would not be disclosed, and (c) the hearing of the application be in private, and not be reported. The basis of the order was that NGN accepted that, at least until trial, publication of the information in the schedule would arguably infringe JIH's Article 8 rights, which would outweigh the Article 10 rights relied on by NGN.
When the draft agreed order ("the draft order") was presented for approval to Tugendhat J, he decided that he was not prepared to make the order, at least without having heard argument which persuaded him that it was appropriate to do so. In taking that course, he was following the approach which he had adopted in Gray v UVW [2010] EWHC 2367 (QB), where he had held that "an order for anonymity and reporting restrictions cannot be made simply because the parties consent: parties cannot waive the rights of the public" (quoting from the judgment below in this case, [2010] EWHC 2818 (QB), para 3). I agree both with the principle there identified, and with the consequent right, indeed obligation, of a Judge to take the course which Tugendhat J took in this case on being presented with the draft order, namely to call for argument to persuade him to approve any part of an order which restricts or prevents publication of any aspect of the proceedings, and about which he has any doubts or worries.
The reason that the Judge called for argument as to the terms of the draft order was not concerned with the principle of whether an interlocutory injunction restraining publication of the information in question should be made: the Judge plainly thought that such an injunction was justified. What worried the Judge was the breadth of the draft order so far as the reporting restrictions it contained: he thought that they went too far.
Having heard argument on the terms of the draft order concerning restraints on publication, Tugendhat J gave judgment on 5 November 2010. In that judgment, he concluded that the draft order should be approved, subject to the important exception that he should refuse JIH's application to continue Nicol...
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