JIH v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 30 July 2012 |
| Neutral Citation | [2012] EWHC 2179 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case Nos: HQ10X03121, HQ11X00782, HQ11D00848, HQ11X01659, HQ11X01785, HQ10D04315, HQ11X02263 |
| Date | 30 July 2012 |
[2012] EWHC 2179 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case Nos: HQ10X03121, HQ11X00782, HQ11D00848, HQ11X01659, HQ11X01785, HQ10D04315, HQ11X02263
Sarah Mansoori (instructed by Olswang) for Frederick Goodwin and the interested party VBN
Hugh Tomlinson QC (instructed by Berwin Leighton Paisner) for JIH
Hugh Tomlinson QC (instructed by Schillings) for ETK, for TSE and ELP, and for MJN
XJA NOM: Charles Russell LLP
Richard Spearman QC (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 20 July 2012
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.
On 20 July 2012 the cases referred to in the title to this judgment were listed for a case management conference. In respect of all cases other than NOM v News Group (which was listed at the request of the parties) this was by order of the court made of its own motion. Judgments previously given in these actions are to be found on Bailii and in other reports, as follows:
| JIH v News Group | [2010] EWHC 2818 (QB) (05 November 2010) [2010] EWHC 2979 (QB) (18 November 2010) |
| XJA v News Group NOM v News Group | [2010] EWHC 3174 (QB) (03 December 2010) none |
| Goodwin (formerly MNB) v News Group | [2011] EWHC 528 (QB) (09 March 2011) [2011] EWHC 1309 (QB) (23 May 2011) |
| ETK v News Group | |
| MJN v News Group | |
| TSE v News Group |
Letters from the court dated 19 June 2012 to each of the parties directing that the cases be listed included the following:
"As you will be aware, in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580, [2012] 1 WLR 782 para 18 the Master of the Rolls said that he had in 'mind especially para 36 of the Practice Guidance, which requires a party, who has an interim injunction restraining publication of information, to keep any affected non-party informed of developments in the case, and paras 37–41, which require active case management of such a case'.
You will also be aware that an injunction that might affect the right of freedom of expression of third parties must comply with the Convention and the HRA.
It appears that this is a case where the interim non-disclosure injunction that was granted might affect the Convention right of freedom of expression of non-parties.
From a review of the court file it appears that there have been no steps taken to progress this claim in accordance with the CPR for some considerable time."
In each of these cases (other than NOM) the injunction in force restrained the publication of private or confidential information of a personal nature, and in each case the defendant was the same. The Claimants who are anonymised are all persons who have achieved success in a sporting or other popular activity. Others in respect of whom orders for anonymity have been made are persons associated with the Claimants.
According to the court records the above cases were ones in which the claimants were taking no steps, either to reach a final order by agreement, or to bring the cases to trial in accordance with the CPR, as the Master of the Rolls has said they should, save that Mr Goodwin sent to the court on 4 April 2012 a copy of a letter concerning attempts at settlement which have proceeded since then. This was notwithstanding further reminders of this obligation given in Giggs v News Group Newspapers Ltd [2012] EWHC 431 at [78]-[79] and [97]-[111]; Spelman v Express Newspapers (No 3) [2012] EWHC 392 at [3]-[7].
A defendant subject to an injunction (and any non-party affected by an injunction), is always free to apply to the court for an injunction to be discharged if a claimant fails to comply with the requirements of the CPR. It is a feature of these cases that, although it did make much publicised, but unsuccessful, applications on other grounds, the Defendant did not apply to the court to strike out the claims, or discharge the injunctions, on the grounds of the Claimants' non-compliance with the CPR. The effect of its omission to enforce its rights in this way has been that the time has never come when it had to serve a defence. So there is nothing on the public record to show what defence it might have raised, or, if such be the case, that it had no defence to the claims.
Between the date of the letter from the court and 20 July the parties in each of those cases submitted to the court forms of consent order. These were agreed as, or as part of, the terms on which the parties had reached final settlements of their differences. The Court will normally make consent orders to give effect to settlements of litigation of all kinds, in so far as the agreements compromise the rights of the parties to the litigation.
However, as is common in claims for breach of confidence or privacy, each of the proposed consent orders incorporates terms continuing the anonymity orders that were still in force when the agreements were reached, and other terms protecting the confidentiality of certain documents, including those on the court file. Orders of that kind are derogations from the principle of open justice and affect the rights of third parties. Accordingly before making consent orders in such terms, the court has to be satisfied that the derogations from open justice are necessary for one of the purposes recognised by the law, in these cases mainly the rights of parties and non-parties to the litigation to respect for their private life.
As the Court of Appeal stated in JIH para [21(4)], where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought. Practice Direction 23A provides:
"10.4 The parties to an application for a consent order must ensure that they provide the court with any material it needs to be satisfied that it is appropriate to make the order. Subject to any rule or practice direction a letter will generally be acceptable for this purpose".
The parties did not initially provide such material (other than in the case of XJA), but at the invitation of the court, they have subsequently submitted to the court explanatory e-mails and notes, and some more detailed submissions, and the parties have requested that the matters be disposed of without an oral hearing.
Having considered the forms of consent order and the further submissions, I informed the parties that I would dispose of the cases on paper, and give a judgment to explain publicly what had happened. Accordingly there was no public hearing, but there is this written explanation of why I have made the orders that I have made.
The orders are all public documents (except in so far as they specify parts of them which are to remain confidential) and are available from the court upon request in accordance with the CPR. This judgment should not be taken as containing a complete account of what is in the orders. Any persons concerned as to whether they might be affected by the orders should read the orders themselves.
Goodwin (formerly MNB)
In Goodwin (formerly MNB) there was an appeal against the order that I had made on 9 June 2011 ( [2011] EWHC 1437 (QB)) concerning the form of the order as it related to a non-party identified as VBN. The order that I made prohibiting identification of VBN was made for the reasons set out in paras [118]-[122]. No Particulars of Claim, and so no Defence, was ever served.
The date fixed for the hearing of that appeal was in March 2012. The date was vacated, and the issue compromised on terms set out in a consent order made by the Court of Appeal on 1 May 2012. The extent of the limited information that I would have permitted to be published concerning VBN was narrowed by this order of the Court of Appeal.
The consent order is made pursuant to an agreement to which VBN is a party. It provides for the action to be stayed on terms. The main provisions which may affect non-parties are as follows. The injunctions made on 1 March 2011, 9 March 2011 and 9 June 2011 (as amended by the order of the Court of Appeal) are discharged. There is a permanent injunction granted prohibiting the Defendant from identifying VBN or disclosing specified information concerning VBN, subject to various provisos. There are provisions in accordance with CPR r.5.4C restricting the disclosure of specified information or documents from the court file. Non-parties affected by the order have permission to apply to the court to vary or discharge the order. The order protecting the anonymity of VBN is maintained for reasons discussed below.
JIH
This case was the subject of an appeal to the Court of Appeal. The judgment of that...
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