X & Y v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 08 November 2006 |
| Neutral Citation | [2006] EWHC 2783 (QB) |
| Docket Number | Case No: HQ06X02997 |
| Court | Queen's Bench Division |
| Date | 08 November 2006 |
[2006] EWHC 2783 (QB)
The Hon. Mr Justice Eady
Case No: HQ06X02997
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Price QC and Matthew Nicklin (instructed by Schillings) for the Claimants
Richard Spearman QC (instructed by Farrer & Co) for MGN Limited and News Group Newspapers Limited
Andrew Caldecott QC (instructed by Reynolds Porter Chamberlain LLP) for Associated Newspapers Limited
Hearing dates: 13th and 16th October 2006
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 obtaining of an interim injunction
On 5 October, at a private hearing, I granted what is nowadays often referred to as a John Doe injunction against "persons unknown" but identified by description. Reliance was placed for this purpose on the reasoning of Sir Andrew Morritt V.-C., as he then was, in Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 163. The order was intended to prevent the further dissemination of allegations about the state of the Claimants' marriage, which are said to be inherently confidential in character and, in so far as the circumstances were known by their friends or acquaintances, it would have been obvious to them that the information was subject to a duty of confidence. It was made ex parte; that is to say with one side only present.
The Defendants had not been notified simply because their identity was unknown. It has subsequently been suggested by reason of s.12(2)(a) of the Human Rights Act 1998 that it was incumbent upon those representing the Claimants, who have been referred to throughout as X and Y, to try and reach them through various newspapers, with whom they have apparently been in contact; alternatively, there was a proposal that the Claimants should attempt to notify them by serving all those friends and acquaintances whom they suspected as potential culprits (according to the evidence the number involved is approximately 20). I shall need to return to this issue shortly.
I shall not set out the order in full for present purposes. It is unnecessary to do so. It was, however, primarily directed towards preventing the "persons unknown" from publishing confidential information to the following effect:
"Until further order, the Defendants must not, whether by themselves or by any other person, publish, communicate or disclose to any other person (other than to legal advisers instructed in relation to the proceedings for the purpose of obtaining legal advice in relation to these proceedings) any information or purported information concerning
(i) [the Claimants'] personal relationship and any marital difficulties;
(ii) the fact that the Claimants have obtained an injunction".
As it turned out, the order was only served on third party newspaper groups, with a view to notifying them so that they would be aware, should the "persons unknown" approach them with any relevant confidential information, that any such communication would or might be in breach of the terms of the order. From the point of view of the newspaper groups, it is said that the order was framed too widely or too imprecisely for them to know the kind of information publication of which would constitute a breach. Moreover, the order did not contain a public domain proviso. Various other criticisms have been made of the terms of the order to which I shall need to return.
The applications by Mirror Group and News Group Newspapers
Now there is before the court an application on behalf of MGN Ltd ("MGN") and News Group Newspapers Ltd ("NGN") to discharge the injunction. They are not, of course, parties to the litigation but they are just as effectively restrained by the terms of the order served upon them. There is also an application by Associated Newspapers Group Ltd to vary the terms of the order (if it survives at all). It is said that it would have been desirable for the newspapers to have been notified of the nature of the application on 5 October prior to its being made. They were told no more than that a "John Doe" application was to be made against persons unknown. The reasoning of Mr Nicklin, who appeared before me on that occasion on the Claimants' behalf, was that representatives had given assurances on behalf of each of the relevant newspaper groups, or undertakings, that no such information would be published until a certain period of time had elapsed. Those assurances were taken at face value and his application was therefore confined to those persons perceived to be the sources or potential sources.
Upon reflection, no doubt, it would have been better to notify the newspaper publishers more fully – not least because the scope of the order obtained by Mr Nicklin was wider than the undertakings given. They would all have had an interest in addressing the terms of the order because it affects them and, in particular, by restricting the exercise of their freedom of expression protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms.
Mr Spearman QC, appearing now for MGN and NGN, raises a battery of arguments in support of his application for discharge. He relies primarily on the merits, arguing that the Claimants are not entitled to this protection, either because their Article 8 rights under the Convention are not engaged at all, in the sense that there is no reasonable expectation on their part to have information of this kind protected by the law, or because it is not likely, when the court comes to balance those rights with the Article 10 rights of the persons unknown and also, for that matter, of the newspaper groups, that the scales would come down in favour of the Claimants. That is arguably a question primarily of proportionality: See e.g. Douglas v Hello! Ltd (No.1) [2001] QB 967 at [137], per Sedley LJ.
It is necessary to have regard to the various principles canvassed by the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457 and Re S (FC) (A Child) [2005] 1 AC 593.
I should explain that Mr Spearman relies upon alternative arguments, such as that there was material non-disclosure on 5 October and that the terms of the order go significantly more widely than is necessary for any legitimate protection of the Claimants' Article 8 rights (assuming that they are engaged at all, which is contrary to his primary submission).
The application by Associated Newspapers Ltd
Mr Caldecott QC for Associated Newspapers sought to identify a principle of general application with regard to third parties likely to be affected by the grant of such an order having regard, in particular, to what is generally referred to as the Spycatcherprinciple. This may be conveniently summarised in the words adopted by Lloyd LJ in Att.-Gen. v Newspaper Publishing plc [1988] Ch 333 at 380:
"Since the test of contempt is not a breach of the order but interference with the administration of justice, it follows that at common law a contempt may be committed if no specific order has been made by the court affecting anyone other than those involved in the proceedings. At common law, if the court makes an order regulating its own procedure and the purpose of the order is plainly to protect the administration of justice, then anyone who subverts that order will be guilty of contempt".
The proposal which Mr Caldecott makes is consistent with the need generally to protect, so far as possible, the rights of such third parties to freedom of expression, taking into account both domestic and Strasbourg jurisprudence, and more specifically with the requirements of good practice identified in s.12 of the Human Rights Act 1998. While the provision expressly addresses protective measures for the benefit of parties (i.e. those who it is intended should be directly be bound by the proposed order), it does not embrace non-parties who, once served, are likely in practice to be as effectively constrained – although, in so far as it makes any difference procedurally, by the principles of criminal contempt rather than by the disciplines of "contempt in procedure" applying to parties who are directly bound.
In principle, an extension of the requirements of notification to third parties would be unobjectionable and entirely consistent with Parliament's intention. I have in mind also the (limited) provision made for third parties by CPR Part 25, 25 PD 9.2. They are entitled to a copy of any material read by the judge, once they have been served with an order, together with a note of the hearing. This would clearly enable them ex post facto to mount a more effective challenge to the terms of the order in so far as it affects them. The argument of Associated Newspapers is, in effect, that prevention would be even better than cure.
There may be theoretical difficulties in defining or identifying how far the category of interested third parties extends, but that will sometimes be less of a hurdle in practice where the applicant for injunctive relief will know, when coming before the court, whom it is intended to serve with the order and, in the case of media groups at least, it would be easy to determine which individual department should be given prior notification. Sometimes, however, it will be clear that the class of persons whose rights will be affected will be different from, and extend more widely than, those persons whom the applicant intends to serve.
When counsel came before the court on 5 October...
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