Sir Frederick Goodwin v NGN Ltd VBN (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 09 June 2011 |
| Neutral Citation | [2011] EWHC 1437 (QB) |
| Docket Number | Case No: HQ11X00782 |
| Court | Queen's Bench Division |
| Date | 09 June 2011 |
and
[2011] EWHC 1437 (QB)
The Honourable Mr Justice Tugendhat
Case No: HQ11X00782
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC (instructed by Olswangs) for the Interested Party
Richard Spearman QC (instructed by Farrer & Co) for the Respondent
The Claimant did not appear and was not represented
Hearing dates: 1 June 2011
The Defendant ("NGN") publishes The Sun newspaper. It applies to vary an injunction dated 19 May. That injunction prohibited the disclosure of information concerning a sexual relationship between Sir Fred Goodwin and a colleague of his at RBS. The relationship continued while she was working for RBS and he was Chief Executive of that bank. The lady is referred to now as "VBN". The litigation has attracted very wide publicity. This is in part due to the reputation which Sir Fred Goodwin acquired as he led RBS, at first to a number of business successes, but in the end to the brink of collapse. NGN state that he did this by cutting the number of employees and through a series of acquisitions, the last of which was of ABN Amro. RBS had to be rescued with vast sums of public money. When Sir Fred Goodwin left the bank in November 2008 he was contractually entitled to severance terms which were in very large figures. He has since attracted much adverse criticism in the media reflecting public resentment that he could receive such high rewards after presiding over the failure of one of the country's leading banks. A bank failure on this scale had not occurred in the United Kingdom since the nineteenth century. NGN state that Sir Fred Goodwin had at an earlier stage attracted much adverse criticism from those who disapproved of the policy he carried out at RBS in cutting the number of employees. It is common knowledge that Sir Fred Goodwin has figured very prominently in the media for a number of years, and that in recent years the coverage has been increasingly hostile.
These facts may well explain why NGN consider that articles about Sir Fred Goodwin will be of interest to the public to whom they wish to sell The Sun. But what is of interest to the public is not the same as what it is in the public interest to publish. Newspaper editors have the final decision on what is of interest to the public: judges have the final decision what it is in the public interest to publish.
The case raises important questions as to the circumstances in which the parties to a sexual relationship may or may not hold a reasonable expectation of privacy in respect of that relationship, and when it may or may not be in the public interest for there to be disclosure in the media of the fact (but not the details) of a sexual relationship.
VBN is not a claimant in the proceedings. She would be entitled to be a claimant if she wished, since her private life is as much engaged as that of Sir Fred Goodwin. But she does not have to be a party. She is a party to this application for the reasons explained more fully below. In brief, she is the person who will be the most affected if the variation to the injunction now sought by NGN is granted. Sir Fred Goodwin would not be directly affected by the proposed variation, since the variation that permitted disclosure of his name was made at the hearing on 19 May. VBN had been given no notice of that hearing and was not represented at it, so there had to be this further hearing.
THE HISTORY OF THIS LITIGATION
On the afternoon of 1 March 2011 a representative of The Sun contacted Sir Fred Goodwin regarding an allegation that he was having an affair with a lady who was an employee of the bank at a time. The journalist also gave the name of the lady and the department in which she worked. It was suggested to Sir Fred Goodwin that the public interest in publication of the story was the fact that the lady was involved in determining his severance package when he left RBS. I will refer to this as NGN's "first argument".
No evidence for this suggestion has ever been produced by NGN and there has been no explanation as to how it ever came to be advanced. If true, it would have been a very serious matter. It would have involved a clear conflict between the lady's professional duties to RBS and her personal interest in assisting the man with whom she was in a relationship. Sir Fred Goodwin and the lady have both denied that she had any involvement in determining his severance package and that denial is not challenged. Since that initial conversation on 1 March no one on behalf of NGN has mentioned that suggestion again.
Later that same day Mr Tomlinson QC, on behalf of Sir Fred Goodwin, applied for an injunction against NGN to Henriques J. He was the Judge who was hearing out of hours applications at the time. The application was made by a telephone in a conference call to which Mr Spearman QC was also a party, representing NGN. At that hearing no evidence or legal submissions had yet been put on paper. That is a common situation in urgent applications. So each counsel told the Judge what he had been instructed his client would say about the facts, and a detailed note was kept by the solicitors. As the rules of court provide, an applicant for an injunction in those circumstances is required later to lodge a witness statement by him confirming the facts explained to the Judge on his behalf. A defendant is not required to do that unless, at the next hearing to be held a few days later, the defendant opposes the continuation of the injunction.
Mr Tomlinson asked for an injunction to prohibit the publication of any information concerning the subject matter of proceedings which Sir Fred Goodwin intended to commence, or of any information tending to identify him (save for that contained in the court order and any Judgment), or of any information concerning the facts or details of any sexual relationship between Sir Fred Goodwin and the person named in the confidential schedule to the proposed order (now referred to as VBN). At that time the proceedings were anonymised and Sir Fred Goodwin was referred to as MNB.
Mr Tomlinson submitted that Sir Fred Goodwin had a reasonable expectation of privacy in relation to information about his relationship with the lady because the law generally recognises that sexual relationships are private unless the parties choose to make them public. Further, he submitted, that there was no public interest in the disclosure of the fact that Sir Fred Goodwin and the lady had had this relationship.
For NGN Mr Spearman submitted that the affair was being conducted at the time of the disastrous acquisition by RBS of ABN Amro. That acquisition would have led to the collapse of RBS, but for the government bail out which was made with public funds. The argument for NGN was that Sir Fred Goodwin might have been distracted by the affair in particular because of other circumstances of his private life (which he identified, but which cannot be set out in this judgment). Mr Spearman stated that it was not the intention of The Sun to say anything more than that Sir Fred Goodwin was having an affair. There would be nothing published about the details of the relationship.
It is important to note that Mr Spearman also said that the identity of the lady was not of significance for the story, nor was it significant that she was an employee of RBS, nor in what field of employment she worked. Mr Spearman submitted that the only relevance of the fact that the lady also worked for RBS was that that might have made the affair more distracting than it would have been with someone who Sir Fred Goodwin only came across at the weekend. So for that reason the newspaper might wish to publish that she was a work colleague. It will be seen that that argument was very different from the one advanced by NGN before me. At that hearing NGN was expressly disavowing reliance on matters which it is putting at the forefront of its case before me.
Thus the sole argument raised by NGN at that stage was that the relationship with VBN coincided with the disastrous business deal. On that basis NGN submitted that it might have distracted Sir Fred Goodwin's attention from the business affairs of RBS at the time which was critical to the disastrous takeover. I will refer to this as NGN's "second argument".
Henriques J gave a short ex tempore judgment in private recording the submissions for NGN, and rejecting them. Applying the test in the HRA s12 (see below), he was satisfied on the information before him that Sir Fred Goodwin was likely to succeed at trial in establishing that publication of the information in question should not be allowed. He reached this conclusion after finding that Sir Fred Goodwin's rights under Article 8 were engaged, and that he had a reasonable expectation of privacy, whereas he found no countervailing public interest so as to make it necessary and proportionate to permit The Sun to interfere with that right in the exercise of its right of freedom of expression under Article 10. He held that it was necessary in the interests of justice that Sir Fred Goodwin's name should not be disclosed at that stage. He ordered that the matter come back before the court on 4 March.
VBN was not present or represented at the hearing. There was no requirement that she should be. But judges are required to have regard to the effect that any order might have on third parties who are not before the court. So Henriques J enquired as to the position of VBN, and, after making his decision, required the parties to inform her of the order he had made.
On 2 March 2011 a claim form was issued and Sir Fred Goodwin made a witness statement. In it he stated that the relationship between...
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