Ryan Joseph Giggs (Previously Known as "ctb") v (1) News Group Newspapers Ltd and (2) Imogen Thomas

JurisdictionEngland & Wales
JudgeMr Justice Tugendhat,THE HONOURABLE MR JUSTICE TUGENDHAT
Judgment Date02 March 2012
Neutral Citation[2012] EWHC 431 (QB)
Docket NumberCase No: HQ11X01432
CourtQueen's Bench Division
Date02 March 2012

[2012] EWHC 431 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Tugendhat

Case No: HQ11X01432

Between:
Ryan Joseph Giggs (Previously Known as "ctb")
Claimant
and
(1) News Group Newspapers Ltd and (2) Imogen Thomas
Defendants

Hugh Tomlinson QC (instructed by Schillings) for the Claimant

Richard Spearman QC & Jacob Dean (instructed by Simons Muirhead & Burton) for the First Defendant

Hearing dates: 21 February 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.

THE HONOURABLE MR JUSTICE TUGENDHAT Mr Justice Tugendhat
1

There can be few people in England and Wales who have not heard of this litigation. The initials CTB have been chanted at football matches when Mr Giggs has been playing for Manchester United. And Mr Giggs has been named in Parliament, raising questions as to the proper relationship between Parliament and the judiciary.

2

In the issue of The Sun dated Thursday 14 April 2011 the First Defendants published an article on pages 1 and 4 under the heading "Footie Star's Affair with Big Bro Imogen" ("the Article"). It did not name Mr Giggs but in due course the fact that Mr Giggs was the footie star referred to became very well known. The First Defendant ("NGN") is the publisher of The Sun.

3

On the same day Mr Giggs applied to Eady J, on short notice to NGN, and without notice to Ms Thomas, for a non-disclosure injunction and other orders which are set out in an order of that date sealed on 15 April. The proceedings were famously anonymised and Mr Giggs was referred to as CTB.

4

What is famous or notorious about this litigation, is that the order for Mr Giggs to be anonymised did not achieve its purpose. But as Eady J explained in his judgment of 16 May 2011 ( [2011] EWHC 1232 (QB)) at para 2

"The purpose of the exercise was to restrain publication not only of the identity of [Mr Giggs] but also of any further account, or purported account, of [a sexual relationship between himself and Ms Thomas]".

5

The disclosure of Mr Gigg's identity necessarily disclosed that the Article related to him. But the Article had attributed the information it contained to 'pals' of Ms Thomas. Mr Giggs feared that Ms Thomas herself was proposing to sell her story, and he wanted to prevent her from doing that: see para 5 of that judgment.

6

Ultimately, the claim has been compromised between Mr Giggs and Ms Thomas. She and NGN state, and he has accepted, that she was not the source of the Article. She has also stated, and he has accepted, that she did not wish any private information to be published, and that her conduct in retaining a publicist, Mr Max Clifford, was not to procure publication, but to prevent it: see the Statement in Open Court read on her behalf on 15 December 2011 (para 39 below). Nevertheless, as part of the terms of the compromise they reached, she has given an undertaking to the court in an order dated 1 February 2012

"not to disclose or cause or permit another to disclose any Confidential Information (as defined …) to any third party".

7

An undertaking to the court has the same effect in law as an injunction. So to that extent Mr Giggs has achieved the second of the two main things that he set out to achieve in this action. There is a final order of the court which has the effect of prohibiting publication of any further account of any sexual relationship between himself and Ms Thomas.

8

It may be that, with hindsight, it can be said that Mr Giggs did not need to join NGN in the action. If Mr Giggs had known on 14 April 2011 that Ms Thomas was not the source of the Article, and if he had believed that NGN had no more information to publish, and no intention to publish, further information as set out below (para 10), it may be that Mr Giggs would not have joined NGN in the action. But he and his advisers could not have known that in April 2011. A claimant who is, or fears that he is about to be, the victim of an unlawful act does not always know which of two (or more) people is the wrongdoer. So he will sue both, in order to protect his position in any eventuality. If he succeeds against one defendant, he may have no further basis for proceeding against the other. But coming to terms with the person who, it turns out, is the wrong defendant may not always be easy. He may have to discontinue the action and pay costs if he cannot reach a compromise.

9

The First Defendant is NGN, and there has been no compromise of Mr Giggs's claim against NGN. The claim is for damages and a permanent injunction. NGN has declined to give an undertaking or to agree to there being a permanent injunction.

10

NGN's position on a permanent injunction is that there is no basis for a court order against itself. There is no evidence that it has either the means to publish, or the intention of publishing, any further information relating to a sexual relationship between Mr Giggs and Ms Thomas.

11

NGN further submits that, as matters now stand, an injunction to restrain publication of the identity of Mr Giggs as the person referred to in the Article would be futile and unreal. The world at large has known that for many months. On any view, his identity as the subject of the Article is in the public domain. NGN also submits that Mr Giggs is not entitled to any, or any substantial, damages for the publication by it of the anonymised Article. And as Mr Spearman submitted, Mr Giggs has achieved vindication of his rights against Ms Thomas, and there is little if anything that he can obtain by way of further vindication in continuing the action against NGN.

12

It follows that NGN can hardly say that it has won this action, if it remains struck out. The fact that Mr Giggs was named as the subject of the Article was not something achieved by NGN in this action. It was a consequence of the acts of third parties out of court. As Mr Spearman submits, there is no suggestion that NGN was behind the widespread publication of Mr Giggs's identity, so this is not a case where it could be said that his identity came into the public domain as a result of a breach by NGN of the injunction. And the effect of the undertaking given by Ms Thomas and NGN's own statement (in para 10 above) is that it is no more free to publish a story about Mr Giggs today than it was immediately after Eady J had granted the injunction on 14 April. All that has happened is that it has become apparent that Mr Giggs did not need to join NGN in the action.

THE APPLICATION BEFORE THE COURT

13

On 18 November 2011, Mr Giggs failed to comply with an order for directions made by me on 2 November. As a result of this omission, the claim in this action was automatically struck out, without there being a further order to say that. That this was the effect of what had happened was not appreciated by the parties until 4 January 2012. When it was appreciated Mr Giggs issued an Application Notice dated 9 January 2012. He asked the court to give him, under CPR Part 3.9, relief from the sanction of striking out, and to re-instate the action.

14

CPR Part 3 .9 provides:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely trial date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party.

(2) An application for relief must be supported by evidence."

15

In exercising its jurisdiction under CPR Part 3.9, as in the exercise of all its powers, the court must seek to give effect to the overriding objective. That is set out in CPR Part 1.1 which provides:

"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources"

16

By CPR Part 1.3 the parties are required to help the court to further the overriding objective.

17

It is necessary to have regard to the history of the proceedings.

THE HISTORY OF THE PROCEEDINGS

18

On 15 April, the day after Eady J's order of 14 April, Mr Giggs issued his claim form. He claimed damages for breach of confidence or misuse of private information and an injunction.

19

On 20 April 2011, the return date, the matter came back before Eady J. On this occasion both NGN and Ms Thomas were represented by leading counsel, Mr Spearman and Mr David Price. Neither defendant opposed the continuation of the non-disclosure injunction made on 14 April. Other orders were made, as set out in para 20 below. Ms Thomas did not submit a witness statement to the court, as she would have been entitled to do if she had wished, either on...

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3 cases
  • South African Airways SOC v BDFM Publishers (Pty) Ltd and Others
    • South Africa
    • Invalid date
    ...Others (No 8) [1990] 3 All ER 762 (Ch) & (CA): referred to Giggs (previously known as CTB) v News Group Newspapers Ltd and Another H [2012] EWHC 431 QB: Guinness Peat Properties Ltd and Others v Fitzroy Robinson Partnership (a firm) [1987] 2 All ER 716 (CA): referred to R v Special Commissi......
  • London Borough of Havering v Persons Unknown
    • United Kingdom
    • Queen's Bench Division
    • 4 October 2021
    ...to an abuse of process which undermines confidence in the administration of justice. In the case of Giggs v News Group Newspapers Ltd [2013] EMLR 5, the Court considered the conduct of proceedings by the claimant, who had been granted an interim non-disclosure injunction on 14 April 2011. E......
  • South African Airways SOC v BDFM Publishers (Pty) Ltd and Others
    • South Africa
    • Gauteng Local Division, Johannesburg
    • 17 December 2015
    ...the law would to my mind indeed be an ass.' [10] B [33] In Giggs (previously known as CTB) v News Group Newspapers Ltd and Another [2012] EWHC 431 QB (para 11) a celebrity figure whose social indiscretions were made public failed in an application for an injunction because, once his identit......

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