Sir Frederick Goodwin v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 23 May 2011 |
| Neutral Citation | [2011] EWHC 1309 (QB) |
| Date | 23 May 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X00782 |
[2011] EWHC 1309 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11X00782
Hugh Tomlinson QC (instructed by Olswang) for the Claimant
Richard Spearman QC (instructed by Farrer & Co LLP) for the the Defendant and for MGN Ltd, an intervenor
Andrew Caldecott QC (instructed by Reynolds Porter Chamberlain) for the Associated Newspapers Ltd
Hearing date: 19 May 2011
On 9 March 2011 Sharp J made an order in this Case No HQ11X00782 under the name MNB v News Group Newspapers Ltd. She handed down a written judgment [2011] EWHC 528 (QB) setting out her reasons. This judgment has been available since within days of 9 March on www.baillii.org. By the time the matter came before her NGN did not oppose an order prohibiting them from identifying either the Claimant, then known as MNB and now known as Sir Frederick Goodwin, or the lady with whom he had a relationship. They did however want to publish information which they said did not identify him, or tend to identify him.
Paragraph 1 of the order prohibited the publication 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)".
NGN asked Sharp J for permission to appeal to the Court of Appeal. She refused permission. NGN then had the right to apply to the Court of Appeal for permission to appeal. It did not apply to the Court of Appeal. The order provided, as such orders always do provide, that anyone served with or notified of the order was entitled to apply at any time to the court to vary or discharge the order on giving notice. No third party intervened to apply to vary the order until 19 May, although the fact that there was an order received the most extensive publicity. All media organisations are aware that they (or any member of the public) served with or notified of the order are always free to apply to the court to have any injunction varied or discharged where the order restrains any publication or interferes with the right of freedom of expression. This is a right which media organisations exercise only very rarely.
On 19 May 2011 in the morning there were numerous reports that in Parliament Lord Stoneham on behalf of Lord Oakeshott had identified Sir Frederick Goodwin as the applicant for that injunction. NGN gave short notice to the court and to Sir Frederick Goodwin that it wished to apply to discharge the injunction of 9 March in its entirety on the grounds that it would be in the public interest for there to be publication outside Parliament of the information of which publication was prohibited by the order, and on the ground that that information was already available to the public in the form of reports of proceedings in Parliament. If this statement had been made outside Parliament it would have been a contempt of court. But court orders do not prohibit members of either House from making of statements in Parliament.
At 2pm at a hearing in open court, Mr Tomlinson, spoke first, on behalf of Sir Frederick Goodwin. He stated that Sir Frederick Goodwin did not oppose a variation of the injunction which would permit publication of the fact that it was himself who had applied for the injunction on 9 March. But he opposed the discharge of the whole order. The parts of the order that he submitted should remain in force were the parts which prohibited identification of the lady with whom he had had the relationship, and details of the relationship, other than the fact that she was a work colleague.
NGN had not given notice to the lady of its intention to apply to discharge the injunction. So she was not represented and had no opportunity to give evidence or make submissions to the court.
After hearing argument from Mr Spearman for NGN and MGN and from Mr Caldecott for ANL, at about 15.30 I announced in open court that I would vary the injunction substantially in the form proposed by Mr Tomlinson, subject to further detailed amendments to the drafting to be agreed by counsel. A form of order was sent to me later in the evening as an agreed draft, and I formally made the order in that form at about 18:15.
After announcing my decision in court, I explained to the journalists then in court, but who had not been present at 2pm, what had happened. What I said included the following:
"1. There was no superinjunction made or asked for. The Order made by Sharp J and the reasons for it are both public documents and the reasons have been available since 9 March on www.bailli.org
2. The injunctions of 1st and 9th March were not intended prevent disclosure of any information to the FSA or to any regulatory authority. There was a discussion between counsel on this in court at my request and there was unanimous agreement on this point, and that if anyone proposing to make any such disclosure was in doubt, then the order could and would have been varied accordingly upon the matter being drawn to the attention of the court.
3. The court does take into account the public interest as required by HRA s.12(4), and in this case the position is as set out in para 1 of Sharp J's judgment of 9 March. By 1 March the first suggested public interest argument had been abandoned in advance of the hearing before Henriques J. The second public interest argument that had been suggested was not in fact advanced, as Sharp J set out in para 6 of her judgment.
4. A third public interest argument was raised before me yesterday for the first time by Mr Caldecott QC for Associated Newspapers. It was to the effect that there might have been a breach of the corporate governance code of RBS, as suggested by Lords Oakeshott and Stoneham. I asked counsel whether any one had asked RBS, Sir Frederick Goodwin or the lady concerned about compliance with the code. He said they had not. He accepted that in those circumstances, if the imputation were published it would be damaging to others, and that a claim for defamation could not be defended as responsible journalism in accordance with Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
5. No injunction had ever prohibited anyone from calling Sir Frederick Goodwin a banker. The injunction had prevented publication of the fact that the person who applied for the injunction on 1 st and 9 th March was a banker. That person was, of course, Sir Frederick Goodwin. But Sharp J had held that that part of the order was necessary because if the applicant were identified as a banker that would be likely to lead to his being named, which would defeat the purpose of granting him anonymity".
I made these remarks in the light of the press reports which counsel produced and referred to in court. If the words attributed to Lords Oakeshott and Stoneham are correct, then these reports disclose a fundamental misunderstanding on the part of them, and on the part of many other commentators, of the facts of the present case. A typical report is that on the Telegraph website of 19 May under the heading "Lord Breaks Superinjunction on Fred Goodwin". In the form in which it was printed out and put before the court the article read:
"Details of the draconian injunction — so strict that it prevents Sir Fred Goodwin being identified as a banker — were disclosed by Lord Oakeshott, a Liberal Democrat peer, in a question during a debate at the House. His comments are protected by parliamentary privilege.
Ben Stoneham, who read the question on behalf of Lord Oakeshott, said: "Would he accept that every taxpayer has a direct public interest in the events leading up to the collapse of the Royal Bank of...
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