Re G (Celebrities: Publicity)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,Lord Justice Clarke,Lord Justice Swinton Thomas |
| Judgment Date | 23 October 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1023-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | LTA 98/6751/2 |
| Date | 23 October 1998 |
[1998] EWCA Civ J1023-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
(MR JUSTICE JOHNSON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Swinton Thomas
Lord Justice Thorpe
Lord Justice Clarke
LTA 98/6751/2
MR JAMES PRICE QC with MR GORDON BUSUTTIL (Instructed by Messrs Farrer & Co, London WC2A 3LH) appeared on behalf of the Appellant
MR J MUNBY QC (Instructed by Official Solicitors) appeared on behalf of the Respondent
Friday, 23 October 1998
In 1995 PY commenced divorce proceedings against BG. On 9th October 1996 there was a hearing before Mrs Justice Hale in relation to the arrangements for their children. The children were represented by the Official Solicitor. At the conclusion of the hearing the judge made an order of her own motion designed to protect the children from unnecessary publicity. Counsel and the judge contributed to the development of the drafting. The only part of that order that is challenged in this appeal is paragraph 1(b) which, so far as is material, reads as follows:
"An injunction is hereby granted restraining until further order any person from taking or permitting any step likely to expose the three children of the family to any form of publicity arising from the current proceedings: including in particular the taking of or publishing photographs of the children whether in the company of their parents or not."
This is an order described as contra mundum because it binds not just those involved in the proceedings but anyone within the jurisdiction of the court. It was no doubt served on News Group Newspapers Limited and it seems that they accepted its restraints. Of course the proceedings had created intense media interest and the judge approved a brief statement agreed by the parties to announce the bare result.
The resulting arrangements for the children broke down about eighteen months later after a series of events in the mother's life, some dramatic some tragic and all sensationally reported in the media. Cross applications for residence orders were tried by Johnson J over three days in June 1998. On 16th June he made an order of which we have seen only paragraphs 4 and 5. They read as follows:
"4 Further to the injunction restraining publicity dated 9th October 1996 (which shall continue to have full effect) the father and the mother shall not
(i) speak to or write in the news media about each other or about P or P or FG, or encourage or instruct any other person to do so on their behalf,
(ii) disclose the contents of these proceedings to any person not concerned in the proceedings as a legal representative or expert witness.
5 Notwithstanding the provisions of section 12(2) Administration of Justice Act 1960 there shall be no publication of the text of this order or any summary thereof."
It is to be noted that whilst paragraph 5 is also a contra mundum order paragraph 4 is to be classified as an in personam order in that it restrains only the father and the mother. It seems that all three parties before the court, mother, father and Official Solicitor, encouraged the judge to make those orders. Indeed paragraph 4 was a consent order, although not so described on its face. News Group Newspapers Limited (NGN) were anxious to publish as much as the court would permit. Accordingly the manager of NGN's legal department wrote to the Official Solicitor for clarification. The Official Solicitor acquainted NGN with paragraphs 4 and 5 of the order pointing out that they were entitled to no more and that they were expressly prohibited from publishing the outcome of the hearing. It was the Official Solicitor who had applied for press restrictions imposed by Hale J to be tightened and he was not prepared to agree to NGN's request for relaxation. Accordingly on 1st July NGN issued an application within the suit for the discharge of paragraph 1(b) of the order of 9th October 1996 and of paragraphs 4 and 5 of the order of 16th June 1998. That application was dismissed by Johnson J on 8th July for reasons which he subsequently handed down on 22nd July. On 4th August NGN applied for leave to appeal and that application was subsequently ordered to be listed on 2nd October for oral argument inter partes with appeal to follow if leave granted. At the outset of the hearing leave was granted and at its conclusion judgment reserved. That is a bare account of the development of the issues that we decide.
The issues were skillfully argued by Mr Price QC for NGN and Mr Munby QC for the Official Solicitor. Miss Y did not appear but Mr G appeared in person, as he did before Johnson J on 8th July. Since he was anxious to leave before the end of the morning Mr Price's submissions were interrupted to enable Mr G to make a brief but extremely effective submission in which he attacked the good faith of NGN and described how media activity resulted in the harassment of his children. In answer to a question from my lord he explained how, despite the mother's current fragile state, she was fully involved in the children's routine.
In developing his submissions Mr Price took us through the long line of leading cases in this narrow but important field of law. At times it seemed as if that all was really in issue in this appeal was how the necessary restriction should be expressed. Although bound by both orders NGN had had no opportunity to make any contribution or submission during the drafting process. NGN were further disadvantaged by having no knowledge of the arrangements initiated by Johnson J for the future care of the children and no knowledge of any particular needs that they might have for protection. Accordingly at the end of the morning my lord invited counsel to explore whether they could not agree on drafting amendments that would compromise the appeal. Although no compromise resulted Mr Price indicated that, although he pursued all his submissions to the full, he would have been prepared to agree the following terms in substitution for paragraph 1(b) of the order of 9th October 1996:
"Taking any photograph of the children (other that for private or domestic purposes) or publishing any photograph of the children other than photographs taken prior to 9th October 1996."
In relation to the order of 16th June 1998 his clients would be reassured by a proviso in the following terms:
"Provided that it shall not be a contempt of court for any news medium to publish anything spoken or written by the father or mother in breach of this paragraph of this order or any information already in the public domain."
Finally in relation to paragraph 5 he might have accepted its continuing restraint if modified to permit the publication by the Official Solicitor of a fair summary of the arrangements made for the children on 16th June 1998.
Although Mr Munby made no formal concessions he recognised that the children would not be adversely affected by the insertion into paragraph 1(b) of the order of 9th October 1996, the words 'other than for private or domestic purposes'. Equally he recognised that injuncting the parents from speaking or writing of each other was an exceptional order.
Although these movements were helpful they did not absolve us from deciding the rival submissions in relation to the three paragraphs in dispute. Before turning to the submission on each of these three paragraphs I record that we were taken by Mr Price through the line of leading cases with some care. Arranged in their chronological order they were as follows:
Re X [1975] Fam 47
Re C [1990] Fam 39
Re M & N [1990] Fam 211
Re W [1992] 1 WLR 100
Re R [1994] Fam 254
R v Central Independent Television [1994] Fam 192
Re Z [1997] Fam 1
The fact that all but one of these authorities has been reported in the Family volume of the Law Reports indicates the importance with which they have been regarded. A number of the cases either review all the earlier authorities or offer guidelines or a statement of principles distilled from the cases. No useful purpose would be served by adding to this jurisprudence. The Children Act 1989 has resulted in changes in terminology but it has not developed in any way the principles established by those authorities decided prior to its commencement on 1st October 1991. In deciding the issues on the paragraphs in dispute I have of course sought to apply these authorities.
I turn now to the rival contentions in relation to the 1996 order. Mr Price for the appellants submits that it is otiose in that it adds nothing to the statutory restriction contained in section 12 of the Administration of Justice Act 1960. Alternatively he submits that if it has any wider operation those whom it binds are incapable of comprehending from the words of the paragraph what it is that they are restricted from doing. Mr Munby in response emphasises the limitations of section 12 as revealed by the decision of the President in Re W (Wards)(Publication of Information) [1989] 1 FLR 246 and of the House of Lords in P v Liverpool Post plc [1991] 2 AC 370. Mr Munby informs us that the point and purpose of paragraph 1(b) is to ensure that the media do not exploit the opportunity of reporting at length every development and happening in the proceedings that occurs outside the courtroom itself. Thus says Mr Munby section 12 does not prevent the media from reporting the comings and goings of the parties and of the witnesses as well as any incident, more or less dramatic, that may occur under the pressure of the litigation either outside the court or indeed within the precincts of...
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