Terry (formerly LNS) v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 29 January 2010 |
| Neutral Citation | [2010] EWHC 119 (QB) |
| Docket Number | Case No: HQ10X00271 |
| Court | Queen's Bench Division |
| Date | 29 January 2010 |
[2010] EWHC 119 (QB)
Before: The Honourable Mr Justice Tugendhat
Case No: HQ10X00271
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Richard Spearman QC (instructed by Schillings) for the Applicant
The Respondent did not appear and was not represented
Hearing dates: 22 January 2010
Approved Judgement
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.
This application for an interim injunction raises issues as to how the court is at the same time to act compatibly with rights under each of Arts 6, 8 and 10 of ECHR, and to give effect to corresponding common law principles, from which those rights are derived. These relate to open justice, to the right to a fair hearing, to the right to private life and to reputation, and to the right to speak freely.
The application was made by LNS at 1445 on Friday 22 January 2010. I heard submissions from Mr Spearman for about two hours. No notice had been given to any Respondent or other person. The applicant states that the order is “likely to be served on media third parties”. No third party is identified in the draft order, but one, the publisher of The News of the World (“NGN”), is named in the evidence.
At that hearing I made orders for there to be a private hearing and anonymity ( CPR39.2(3) and (4)) and I granted an order substantially in the form sought. This prohibited the publication of certain information. But that order is expressed to last only until I delivered my decision on the application, which I now do.
This judgment is drafted in a form which should be publishable in the usual way, whatever the outcome of this hearing, or any subsequent hearing in any court in these proceedings. It is necessary to use awkward language to achieve this aim, which is necessary to protect the rights of individuals referred to in this judgment.
THE SUBSTANCE OF THE ORDER SOUGHT – ARTS 8 AND 10
There is a Confidential Schedule to the draft Order submitted to the court, and a confidential annex to this judgment.
The draft order seeks a prohibition on publishing “all or any part of the information or purported information” and documents in four categories. I paraphrase this as follows: (1) the fact of a specified personal relationship (“the Relationship”) between LNS and another person who is named (“the other person”); (2) details of that relationship including certain specific consequences of it; (3) information leading to the identification of LNS or the other person and (4) any photographs evidencing or relating to the fact or details of these matters.
The applicant accepts the truth of certain information which is sought to be protected by the draft order. I do not know whether or not LNS considers that those matters were acceptable for a person in LNS's position in life. But the application is to stop further publication of such information, at least to the public to large. I shall consider below what reasons are given for that. LNS does not know what NGN or anyone else may be intending to publish, so there is no admission that whatever may be published will be true.
Evidence is before the court of LNS's position in life, both professional and personal. In my view, there is a real prospect that this information could form the basis for a submission for a respondent (or a third party given notice of the order) that publication of at least the fact of the Relationship ought to not to be prohibited, on the ground that publication would be in the public interest, alternatively on the ground that the respondent (or person given notice of the order) believes that publication would be in the public interest. By the public interest I include the matters listed in ECHR Art 8(2) and in the PCC Code. I express no view, at this stage, as to whether that submission would succeed. I merely state that there is a real prospect that it could properly be advanced. The reasons for this conclusion are set out below.
In the language of defamation, the information, if published, would be capable of lowering LNS in the estimation of right thinking members of society generally. That is all that a judge could say at this interim stage. Whether it would so lower him, would be a matter for a jury to decide.
Nothing in or about the Relationship appears likely to be unlawful. Mr Spearman submits that the information is all private, and that a publication would be a misuse of the information.
There is reference in the evidence to some unspecified details of the Relationship, and some unspecified photographs. Publication of these would undoubtedly be prohibited, if it were established that they are as intrusive as the applicant suggests, and if there is sufficient evidence of a threat to publish them to justify the making of a court order.
There is also reference in the evidence to individuals (other than LNS and the other person) whose rights of privacy the applicant says would also be affected by any publication. I shall call these “the first interested person”, and so on. Neither the other person, nor any of the interested persons, is a party to this application. In principle all or any of them could be joined as applicants, if they wished to be, so far as I have understood. I shall have to consider to what extent I should have regard to rights which LNS, but not they themselves, are choosing to seek to establish in these proceedings.
The upshot thus far is that, subject to the other issues I shall consider, this is a case where the applicant could expect an injunction to be granted in some form, including at least some of the information in category (2), if there is sufficient evidence of a threat in relation to that category.
I will consider below whether there is sufficient evidence of a threat to publish details of the Relationship or photographs relating to it. Save for one mention of the existence of photographs, the only evidence relates to the alleged threat of publication of the fact of the relationship. The case that there is a threat to publish detailed information or photographs is largely based on inference from the threat to publish the fact of the Relationship.
The issues raised in this application include:
(1) whether the limitations upon, or defences to, a claim in misuse of private information on grounds of public interest are such that an injunction ought, or ought not, to be granted; and whether or not the law to be applied to this application is that set out in Bonnard v Perryman (recently re-affirmed in Greene v Associated Newspapers [2004] EWCA Civ 1462; [2005] QB 972);
(2) whether the court should order the derogations sought from open justice, the requirements of fairness, and Art 6;
(3) whether the court should order the derogations sought from other provisions of the CPR;
(4) what should be the scope of any prohibition granted: the order sought is unqualified in form, but according to the evidence the information is already circulating widely by word of mouth, and what appears to be sought is in reality a prohibition of publication to the public at large by broadcast in the press or other media.
THE DEROGATIONS FROM OPEN JUSTICE, THE REQUIREMENTS OF FAIRNESS, Art 6 and CPR
The following derogations from open justice, the requirements of fairness, and Art 6, are sought in the draft order: (1) a private hearing, (2) anonymity for the persons involved in the Relationship, (3) that the entire court file should be sealed pursuant to CPR5.4C(7), (4) that the order should prohibit publication of the existence of these proceedings, and that it should do so not just until service of the proceedings, or until a return date, but that it do so “until after the conclusion of the trial of this claim or further Order in the meantime”, (5) that (notwithstanding the provision of CRP PD 25 para 9.2), the applicant shall not be required to provide any third party served with a copy of the order a copy of any materials read by the judge and/or a note of the hearing.
There are further derogations from the CPR sought in the draft order as follows: (a) that the order shall be made until trial or further order (whereas in orders made without notice CPR PD para 5 provides that there must be a return date); (b) that time for service of the Claim Form pursuant to CPR 7.5 and CPR 7.6(1) be extended “generally until 21 days after the identification of the Respondent(s) by the Claimant”.
The draft order sets out correctly that (in accordance with what is known as the Spycatcher principle: see A-G v Newspaper Publishing plc [1988] Ch 333, 380):
“ Effect of this order: It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or have their assets seized”.
Of course, the draft order also provides that the order itself, including all of these derogations from the norms, are to be subject to the right of the respondent, and of anyone served with or notified of the order, to apply to the court to vary or discharge the order (or so much of it as affects them). But the effect of this is to place upon a respondent or third party the burden of making an application to the court. A person considering making an application to vary the order would do so without knowing anything about the basis upon which it had been granted. He would not even...
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