Wer v Rew
| Jurisdiction | England & Wales |
| Judge | Sir CHARLES GRAY |
| Judgment Date | 26 January 2009 |
| Neutral Citation | [2009] EWHC 1029 (QB) |
| Date | 26 January 2009 |
| Docket Number | Case No: HQ09X00298 |
| Court | Queen's Bench Division |
[2009] EWHC 1029 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Charles Gray
Case No: HQ09X00298
MR R SPEARMAN QC (instructed by Schillings) appeared on behalf of the Applicant
MR LAMONT (of Charles Russell & Co) appeared on behalf of the Respondent
Approved Judgment
Gross J on Friday evening granted an injunction after hearing argument over the telephone. He granted injunctive relief until 2.00pm this afternoon, Monday, 26 January 2009.
Mr Richard Spearman, QC, who represented the anonymised claimant and who has appeared before me today, indicated to the learned judge that the claimant's solicitors intended to serve copies of the injunction on the legal representatives of a considerable number of third–party media organisations. I have been given the list of those media organisations; it seems to me to cover every single Sunday and national newspaper.
Gross J granted the injunction over the weekend in order to enable the anonymised defendant to oppose the continuance of the injunction today. I received earlier today an email from solicitors acting for the defendant saying they were not going to oppose the continuation of the injunction until trial or further order. Mr Lamont has been courteous enough to appear this afternoon but did not make any submissions.
However, that e-mail would not necessarily or invariably be an end of the matter. For a reason that I will explain, I invited Mr Spearman to come to court in order to satisfy me that this is indeed a proper case for the grant of an injunction. The facts are within a remarkably short compass. The defendant published on to its e-mail subscribers an item which referred to an unnamed person and to the effect than aspect of his family life might have on a member of his family.
Neither the claimant nor the member of his family was named in that publication. Having read paragraph 7 of Mr Spearman's skeleton argument, I am prepared to accept that the claimant would be identifiable to some at least of those who read the item complained of in the defendant's e-mails.
The potential problem, however, as it appeared to me, is a different one. The sting of the publication as regards the claimant is that he has or has had an extra marital relationship. In his confidential statement annexed to his witness statement, the claimant confines himself to saying:
“Irrespective of whether this claim is true or false, it is immensely damaging to myself and my family for such a revelation to be published in the media.”
Mr Spearman in his skeleton argument says, consistently with his client's witness statement, that the applicant has not advanced any case as to whether this information is true or false. Mr Spearman submits that such a stance is legitimate given what was said by the Court of Appeal in McKennitt v Ash [2007] 3 WLR 194 at paragraph 86:
“The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry.”
I have to confess that at first blush I found it troubling that a judge should be asked to grant an injunction restraining not just the defendant publication but a whole number of other media organisations from publishing certain information, in complete ignorance whether the information is true or false and in complete ignorance of the extent to which the information, true or false, had entered the public domain.
I readily accept that in McKennitt it was said by the Court of Appeal in broad terms that truth or falsity is not an issue on an application for a privacy injunction. I will assume, in favour of the present claimant, that the Court of Appeal in McKennitt would not have been critical of the claimant in that case if she had remained tight-lipped as to whether the information she was seeking to protect was true information. My recollection of that case is that the claimant did go into the truth or falsity of the information recounted by the defendant, albeit perhaps in the context of a public interest defence or an issue of hypocrisy rather than as an entitlement to a privacy injunction.
The point which troubles me, however, is a rather different one. Suppose, for the sake of argument, that the allegation concerning the claimant is true. Suppose further that he is still married. On those hypotheses, it appears to me that before continuing the injunction until trial or further order it is legitimate for the court to enquire as to the extent to which the information sought to be protected by injunction had entered into the public domain. I accept that information may remain confidential despite having become known to a significant number of people; it is question of degree. The problem, as I saw it on reading the papers, is that the court is being invited to interfere with the Article 10 rights of a large number of media defendants in ignorance of what might be...
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