MNB v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE SHARP,Mrs Justice Sharp |
| Judgment Date | 09 March 2011 |
| Neutral Citation | [2011] EWHC 528 (QB) |
| Date | 09 March 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X00782 |
[2011] EWHC 528 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before : The Honourable Mrs Justice Sharp
Case No: HQ11X00782
Hugh Tomlinson QC (instructed by Olswang) for the Claimant
Richard Spearman QC (instructed by Farrer & Co LLP) for the Defendant
Hearing date: 4 March 2011
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.
Publication of any report as to the subject matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment
Mrs Justice Sharp:
On 1 March 2011 Henriques J granted a temporary injunction with a short return date to prevent the disclosure of private information ("the information") about the Claimant. The hearing was on short notice to the Defendant. It was conducted over the telephone. It was also held in private, and the application that it should be was not opposed. The application for an injunction was however contested. The parties were represented by the same counsel who have appeared before me, that is, Hugh Tomlinson QC for the Claimant, and Richard Spearman QC for the Defendant. The Claimant had been informed earlier that day of the Defendant's intention to publish a story in the Sun newspaper which concerned his sexual relationship with another person; and two public interest justifications for its publication were advanced by the Defendant. By the time of the telephone hearing, the principal public interest justification had been abandoned.
A full note of the hearing has been produced by the Claimant's solicitors. The judge's attention was drawn to the relevant considerations of law including those relating to article 8 and article 10 of the ECHR and the provisions of section 12(3) of the Human Rights Act 1998. He concluded the Claimant was likely to succeed in establishing at trial that publication of the information should not be allowed.
The judge ordered that the Claimant could be anonymised. Paragraph 1 of the order made prohibited the publication until the return date (4 March 2011) of:
"(a) Any information concerning the subject matter of these proceedings or any information identifying or tending to identify the applicant save for that contained in this Order and in any public judgment of the court given in this action.
(b) Any information concerning the fact or details of any sexual relationship between the Applicant and the person named in the Confidential Schedule to the Order….."
Paragraph 1 went on to provide that:
"nothing in paragraph 1 of this Order shall prevent the Respondent from publishing, communicating or disclosing any material that before the service of this Order was already in, or that thereafter comes into, the public domain as the result of national media publication (other than as a result of this Order or a breach of confidence or privacy)".
At the start of the return date hearing before me, I was told the application for an interim injunction was no longer opposed. Subject to its right to apply to apply to discharge or vary the Order, the Defendant has agreed therefore that the order made by Henriques J should continue until trial or further order (including therefore a paragraph in the same terms as that set out in paragraphs 3 and 4 above). I indicated to the parties at the hearing, I approved those terms and therefore the interim order is now in place.
There is no doubt in my view that the Claimant's article 8 rights are engaged, both in relation to the subject matter of the action, and the identification of him as the Claimant. There is no doubt either that publication of the information as to the fact or details of the affair will result in some interference with the Claimant's private life. It is not currently suggested by the Defendant that there is a public interest in the publication of the information or that there is any other reason for it to be disclosed. It is not suggested for example that the information was in the public domain. I am satisfied in accordance with section 12(3) of the Human Rights Act 1998 that the Claimant is likely to establish at trial that publication of the information should not be allowed.
Because provisions in the order agreed between the parties derogate from the principle of open justice, they are subject to the approval of the court. In this case, I am satisfied that the particular provisions in it which derogate from that principle are necessary.
The issue now between the parties concerns an article published by the Defendant after the hearing before Henriques J ("the article"). The article was published in the Sun newspaper on 3 March 2011 and remains available online. It referred to the fact that an individual with a particular occupation had "gagged" the "Sun". The Claimant says its publication has led to the publication of articles in other newspapers and which continue to be available on the internet in substantially similar form to the article. It is said the article's contents breach the order made by Henriques J.
Mr Tomlinson submitted a written skeleton argument for the purposes of this hearing which dealt with whether the temporary injunction granted by Henriques J should be continued until trial or further order; Mr Spearman did not. I was not provided with a written argument by either side on any of the matters which are now in dispute. The Claimant's complaint about the article was raised the evening before the hearing, and to that extent, my adjudication on it, is not made as part of the return date hearing ordered by Henriques J.
Hearing in private
A further issue has been raised by the Defendant, albeit very briefly, as the hearing began concerning the hearing of this application in private. At the outset of the hearing, Mr Tomlinson invited me to hear the matter in private pursuant to CPR 39.2(3)(a)(c) and (g). Mr Spearman invited me to consider making an order which permitted the public to remain, and to impose reporting restrictions in the event that anything was said which impinged on the Claimant's article 8 rights. He said that it was possible for example to conduct appeals before the Court of Appeal in such cases in this way; and there shouldn't be one rule of thumb for hearings before the Court of Appeal and a different one at first instance.
At the outset of the hearing, before it was ordered to be in private, members of the public were present in court as were representatives of the press. Mr Spearman did not address the consequences for the privacy interests of a claimant which may result from the inadvertent revelation to third parties of information the application is designed to protect, during the course of a hearing. Mr Spearman did not suggest either a form of order the court might make, still less a mechanism to overcome the considerable practical difficulties which in my judgment would arise in preventing the dissemination of the information in the event of inadvertent disclosure; nor did he address the problems which might arise in the event that an inadvertent disclosure resulted in a subsequent "leak."
A hearing at first instance usually ranges widely over the facts and matters in issue; and this is what occurred in this case. It would have been impossible in my view for the issues which arose to be properly explored without referring in some detail to the information concerned; and without revealing the identity of the Claimant, or matters which would be likely to lead to his identification. This problem was compounded by the absence of written arguments on the matters in issue and by the need to refer in some detail to the article. I considered it to be necessary therefore on the facts of this case for the hearing before me to be in private, though of course the matter has to be kept under review, including during the course of the hearing itself.
When a matter comes before the Court of Appeal, the position may well be different to the one faced by the court at first instance: in particular it is very likely that the matters in issue will have been narrowed and reduced to writing, and the parties and the Court are also much more likely to know what the factual "parameters" of the case are.
After the hearing, the Defendant's solicitors provided me with a copy of the decision of the President, Sir Mark Potter, in Re Child X [2009] EWHC 1728 (Fam). It was said it would be relevant to my consideration whether hearings like the present one are capable of being conducted in the presence of accredited media representatives without violating the article 8 rights of the claimants, a position which prevails in the Family Division. I do not think the positions are analogous. The jurisdictional basis for the attendance of accredited media representatives at hearings which are private and which are not open to the general public in the family courts is statutory: the relevant FPR (10.28) was inserted into the FPR by statutory instrument. There is no jurisdictional basis so far as I am aware (and certainly none was suggested) which would permit this court to distinguish between the media and members of the public for this purpose.
The article
Mr Tomlinson prefaced his submissions by making it clear that the Claimant has no objection to the Sun criticising the application, the grant of the injunction, or the reasoning of the judge who granted it. This he accepts is a proper exercise of the Defendant's article 10 rights: the question of how the law is enforced is unarguably a matter of public interest. However he submits that parts of the article are published...
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