JIH v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 05 November 2010 |
| Neutral Citation | [2010] EWHC 2818 (QB) |
| Docket Number | Case No: HQ10X03121 |
| Court | Queen's Bench Division |
| Date | 05 November 2010 |
[2010] EWHC 2818 (QB)
Before: The Honourable Mr Justice Tugendhat
Case No: HQ10X03121
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Hugh Tomlinson QC (instructed by Berwin Leighton Paisner LLP) for the Claimant
Mr Richard Spearman QC (instructed by Farrer & Co) for the Defendant
Hearing date: 22 October 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:
In an action to restrain misuse of private information, in what circumstances should the court order that the claimant must not be named (an “anonymity order”)? In what circumstances should the Court order that even the nature of the information which is protected by an injunction must not be identified?
This judgment requires consideration of these questions. I expressed views on them in the judgment I handed down on 21 October 2010 in Gray v UVW [2010] EWHC 2367 (QB) (“ Gray”) in the light of In re Guardian News and Media Ltd [2010] 2 WLR 325; [2010] UKSC 1 (“ Guardian”). In Gray I had the benefit of argument from experienced counsel for the Claimant. But the Defendant was an individual who appeared in person. Nor did I receive representations in any form from any third party (although I was informed that newspaper publishers had been served). In this case both parties are represented by experienced counsel and the Defendant (“NGN”) is a publisher of a national newspaper. In addition, as set out below, I have also had the benefit of submissions from Associated Newspapers Ltd, Express Newspapers Ltd, Guardian News and Media Ltd, MGN Ltd, Independent Print Ltd and Telegraph Group Ltd (“the Media Organsiations”). The views I express in this judgment therefore carry more weight.
It was also on 21 October 2010 that the parties in this action delivered to the Court a form of consent order, signed by both of them, which they asked the Court to make: see para 26 below. No other documents accompanied that form. It was clear (as has since been confirmed) that they expected the Court to make the order without consideration of any other documents. But the form of order contained derogations from the principle of open justice. The parties now accept that, as I stated in Gray, an order for anonymity and reporting restrictions cannot be made simply because the parties consent: parties cannot waive the rights of the public ( Gray para [34]).
It may not always be necessary for there to be an oral hearing before the Court makes an order to which both parties have given their written consent, when that order includes provisions derogating from open justice. But the court must always be provided with sufficient material upon which to decide the questions which it is required to decide. In a case where the derogation is said to be necessary to protect a Convention right there are two questions: (1) is any, and if so which, Convention right of any party is engaged? and (2), if it is, then is there sufficient general, public interest in publishing a report of proceedings which identifies that party to justify any resulting curtailment of the rights of that party and his/her family to respect for their private and family life? ( Gray para [4] citing Guardian para [52]).
Having read Gray the Claimant's solicitor Mr Shear made a witness statement, and Mr Tomlinson provided a Skeleton Argument.
It is important to record that the arguments of the parties before me were not adversarial. The parties have reached an agreement, and neither of them has resiled from it. Both parties were asking me to make the order in the form they had consented to. However, both counsel were able to give their assistance to the court, and they did so from the perspective of a claimant and a defendant respectively.
The feature of the form of order in this case on which I asked for particular assistance was that it contained two provisions, either of which, by itself, might not have caused me concern, but which, when appearing together, call for an explanation. The first of these two provisions was that the Claimant be not named. The second of these two provisions was the substantive part of the order: it contained no information as to the subject matter of the action. The essential part reads (subject to exceptions):
“… the Respondent must not publish … (a) all or any part of the information … described in the Confidential Schedule …, or (b) anything which might identify the … claimant as the person who has obtained the order…”
However, as Mr Tomlinson, expressed it in his skeleton argument:
“… [where] the court has … accepted that the publication of private information should be restrained, … if the court is to avoid disclosing the information in question it must proceed in one of two alternative ways: (1) If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised;(2) If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified” (emphasis added).
If it is right, as in my judgment it is, that anonymisation and withholding of information about the subject matter of the action are alternative forms of protection for a claimant, then in the present case the agreement reached between the parties contains a derogation from open justice which requires particularly close scrutiny. The fact that the claimant has agreed to this form of order is not surprising. It is more surprising that NGN should have agreed to it.
In response to questions from the bench, Mr Tomlinson submitted that the terms of this public judgment could cure any defect in the order. So it could. But the parties contemplated that this order would be made by consent, and without a public judgment. And the formulation in Mr Tomlinson's skeleton argument refers to both public judgment and order, and rightly so, in my view. Pursuant to CPR r.5.4C(1)(b) it is also the general rule that a person who is not a party to proceedings may obtain from the court records a copy of a judgment or order given or made in public (whether made at a hearing or without a hearing). That will apply to the order that I make in this case.
CHRONOLOGY OF PROCEEDINGS
NGN publishes a number of titles, including the News of the World and the Sun. Earlier this year NGN published articles in its newspapers concerning the Claimant. The first publication was without notice to the Claimant. Subsequently journalists approached the Claimant about other possible publications they might make concerning him.
On 13 August 2010 the Claimant applied to Nicol J sitting in the interim applications court, for an interim Order before issuing proceedings. The application was supported by a witness statement from the Claimant. In it he set out the facts, and gave reasons for his fear that, unless an injunction was granted, he and other individuals would suffer distress and humiliation, and he explained the serious effect upon him and them that he feared might result.
Notice was given to NGN (and to no other media organisation) pursuant to HRA s.12 (2). A hearing took place in the interim applications court. Counsel appeared for the Claimant and for NGN. They were counsel other than Mr Tomlinson and Mr Spearman who appeared at the hearing before me. Nicol J gave a judgment, a note of which is in the papers before me. The chronology of events is derived from that note, from the evidence before Nicol J, and from the recent witness statement of Mr Shear.
The hearing on 13 August lasted 2 hours and 20 minutes, finishing at 9.18pm. The judgment is not public. It could not be public in the form in which Nicol J gave it, without defeating the purpose of the order that he made.
Nicol J asked himself the question that he was required to ask under HRA s.12(3): is the court satisfied that the applicant is likely to establish that publication should not be allowed?
Nicol J said “I have no doubt that the private life considerations of Art 8 are engaged here”. He then carried out the balancing exercise pursuant to the guidance in Re S (A child) [2004] UKHL 47; [2005] 1 AC 593 (“ re S”), focussing on the comparative importance of the rights engaged, in this case the rights under Art 8 and Art 10 of the Convention. He concluded that he ought to grant the order sought. He then turned to the terms of the order. He accepted submissions for NGN that the order sought was wider than was necessary, and granted it in the more limited terms which he considered were necessary. He made the substantive order, the essential terms of which are set out above in para 7.
Nicol J then turned to consider the anonymity order. He granted it saying:
“if this was not included in the order it would undermine the purpose of the order itself. I note that it is common for such an order to be made, at least when the order is made to prohibit publication”.
The Order of 13 August recites that Nicol J granted anonymity to the Claimant pursuant to CPR 39.2(4) and the inherent jurisdiction of the court because it appeared to him that:
“(1) these proceedings were likely to attract publicity
(2) that publicity revealing the identity of the Applicant is likely unfairly to damage the interests of the Applicant and/or frustrate the administration of justice in these intended proceedings”.
Nicol J also accepted undertakings as required by CPR PD25A, and, as ancillary matters:
i) heard the application in private pursuant to CPR r 39.2(3)(a), (c) and (g)
ii) made an order under CPR r5.4C limiting the...
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