PJS v News Group Newspapers Ltd

Application dealt with: 4 November 2016

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.

Today I have made a final order in this action, by consent. The application was made "on the papers", asking the court to make an order without a hearing. The parties have not only agreed as to the terms of the order to be sought but also that the court should dispose of the application without a hearing; so the court has power to deal with the matter in that way: CPR 23.8(a) and (b). The court is not bound to act in that way, just because the parties wish it. But the purpose of these provisions is to assist the efficient dispatch of the court's business, when nothing is in dispute between the parties. I agree with the parties that this is a just and efficient way to dispose of the present application. There is no need for a hearing.

But I am giving this public judgment, for three reasons. The first is to ensure that the principle of open justice is respected, and that the derogations from open justice that I am granting are publicly explained. As explained in the Master of the Rolls' Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003:

"9. Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders, are public: see Article 6(1) of the Convention, CPR 39.2 and Scott v Scott [1913] AC 417.

One exception to that general rule is provided for by CPR 23.8. Dealing with a case "on the papers" is not incompatible with the open justice principle. It is an incursion. The extent to which such an incursion should be allowed must depend on the circumstances of the particular case. The Guidance goes on:

"16. Interim non-disclosure orders which contain derogations from the principle of open justice cannot be granted by consent of the parties. Such orders affect the Article 10 Convention rights of the public at large. Parties cannot waive or give up the rights of the public. The court's approach is set out in [ JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 [2011] 1 WLR 1645] at [21]."

The same reasoning applies to final orders. Dealing with this application on the papers but with a public order and a (short) public judgment strikes an appropriate balance between the competing rights.

Secondly, this case has previously attracted a good deal of publicity, and has been the subject of a number of earlier public judgments. This makes it particularly appropriate for its conclusion to be marked by a short public judgment recording how the case has come to an end, by agreement.

Thirdly, I am aware that a number of third parties have been served with or notified of the injunction. Although the claimant has an obligation to ensure that such persons are kept informed of progress, and I do not doubt that obligation will be performed, it is right for the court to make the position public itself through a judgment and not just an order.

The claim is in breach of confidence and misuse of private information. It concerns information about the claimant's alleged extramarital sexual encounters. Beyond this, the facts and issues need no repetition. They can be found set out in the most recent public judgment, given by the Supreme Court on 19 May 2016: [2016] UKSC 26 [2016] AC 1081. By that judgment, the Supreme Court allowed an appeal against a decision of the Court of Appeal on 18 April 2016 to discharge an interim injunction which the Court of Appeal had itself imposed on 22 January 2016.

In its first decision the Court of Appeal, reversing Cranston J, found that the information which the claimant sought to protect was private and confidential, and that there was no public interest justifying its disclosure: [2016] EWCA Civ 100 [2016] EMLR 17. In its second decision, [2016] EWCA Civ 393, the Court of Appeal adhered to those conclusions but accepted the defendant's argument that the information at issue had by then become public, or publicly accessible, to such an extent that the claimant was unlikely to succeed in obtaining an...