JIH v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 18 November 2010 |
| Neutral Citation | [2010] EWHC 2979 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10X03121 |
| Date | 18 November 2010 |
[2010] EWHC 2979 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Tugendhat
Case No: HQ10X03121
Mr David Sherborne (instructed by Berwin Leighton Paisner LLP) for the Claimant
Mr Richard Spearman QC (instructed by Farrer & Co) for the Defendant
Mr Anthony Hudson appeared for Telegraph Media Group Ltd
Hearing dates: 12 November 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.
Mr Justice Tugendhat :
A week ago, on 5 November, I handed down my judgment in this matter: [2010] EWHC 2818 (QB) (“my judgment”). The Order I made that day (“my Order”) included the following:
“1 The Defendant must not publish, republish, syndicate, use, communicate or disclose to any person:
(a) Any information concerning the subject matter of these proceedings save for that contained in the public judgment of the Court handed down on 5 November 2010 and/or
(b) Any of the information set out in the Confidential Schedule to this Order
(together “the Information”)…
10. The Claimant's application for an Order requiring that his identity be not disclosed be refused…
12. It is ordered that the identity of the Claimant shall not be disclosed pending the renewal of his application for permission to appeal to the Court of Appeal…”
THE APPLICATION
On 10 November the Claimant gave notice of an application to vary para 10 of my Order so as to provide that the Claimant's identity be not disclosed. The reasons are set out in the second witness statement of Mr Shear also dated 10 November.
This was not an attempt to re-argue matters I had determined on 5 November. The application is based on events that occurred subsequently, namely two publications in the press relating to my judgment and order. No relief was sought on this occasion against any person, other than the variation of the anonymity provided for in para 10 of my Order.
EVENTS SINCE MY ORDER
The first event was a publication in the online edition (and only the online edition) of the Daily Telegraph published at 7.00 am on 6 November. The article reported my judgment.
The second event was a publication in both the online and the print editions of another newspaper (“the other newspaper”). The article reported my judgment. It included a quotation which the Claimant submits breaches the terms of my Order.
On 5 November solicitors for the Claimant (“the solicitors”) had prepared, and sent to the editor and the legal department of the publishers of the Daily Telegraph, Telegraph Media Group Ltd (“the Telegraph”) and of the other newspaper (amongst others), a letter which set out the effect of my Order. On Monday 8 November they wrote to the Editor and Legal Department of the Telegraph, referring to my Order and to their previous letter, and complaining that the Telegraph was in breach of para 1(a) of my Order. No complaint is made of a breach of para 1(b).
The title to the article contained words which the Claimant submits are a breach of the terms of my Order. There is also a complaint of a breach of para 12 of my Order, by publication of information about the Claimant (although not his identity). The solicitors asked for the article to be removed. It was removed from the website that day.
Mr Anthony Hudson appeared before me and apologised on behalf of the Telegraph. He explained how the publication had occurred, and the steps that had been taken to ensure that it would not occur again.
The solicitors wrote a letter in similar terms to the other newspaper. There was a reply the same day stating:
“The article was … taken down from the website immediately upon receipt of your e-mail. A warning has been circulated to all journalists not to repeat the matter referred to. A similar warning has been place on the electronic library cutting”.
SUBMISSIONS
Mr Shear states that it is deeply troubling and distressing for the Claimant that these events have occurred, the more so because the Claimant had feared that they would occur. He referred to his previous witness statement which included passages about publications concerning the Claimant in the past.
Mr Sherborne submits that the effect of these two publications is that, if and when the anonymity provision in my Order expires, then the publication of the identity of the Claimant, taken together with these two publications that have already occurred, will lead to the public knowing information about the subject matter of the action. This will frustrate or undermine the purpose of para 1(a) of my Order. Therefore, in order to preserve the effect of my Order, the only possible step to take is to impose a new anonymity order.
Mr Sherborne submitted that this step is necessary to protect the Art 8 rights of the Claimant. He reminds me of para 62 of my judgment in which I said:
“Having considered the evidence, I too have no doubt that the private life considerations of Art 8 are engaged here, both as to the subject matter of the action, and, to a much lesser extent, as to the identification of the Claimant. The proceedings are likely to attract publicity, and if the Claimant is identified that will result in some interference with the private life of himself and his family. There is no suggestion of any public interest or other possible justification in disclosure of the information which is the subject matter of the action.”
I accept that there is a prima facie case that the two publications complained of do disclose information about the subject matter of the action.
I make no determination as to whether either or both of these are a breach of my Order. If that issue arises in the future, then it will be necessary to give to the two publishers concerned an opportunity to make representations as to whether that is so or not. Mr Hudson's apology on behalf of the Telegraph was not an admission of contempt of court.
Mr Sherborne also submitted that:
“At the time of lifting the anonymity order the Court regarded itself as being faced with two alternatives, namely to allow publication of the Claimant's identity or to allow publication of the nature of the material which was being injuncted and that since it would not be possible to do the latter (although that was not the submission of Counsel for the Claimant), it ruled that anonymity should be lifted”.
This submission is mistaken. As my judgment makes clear, the Court was never faced with a choice between the two alternatives referred to in para 8 of my judgment. In the present case, on 22 October and now, the parties have been at one in presenting the court with only both alternatives together. The two together are to be found in the form of the consent order proposed on 22 October (para 7 of my judgment) and again in the form of consent order proposed following the circulation of my judgment in draft (para 74 of my judgment and para 1 of my Order). At no time, then or today, has counsel for the Claimant submitted...
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