Wer v Rew

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 material facts. In this connection it is material also to have in mind the provisions of section 12(3) and (4) of the Human Rights Act 1998.

In the present case, the claimant not only declined to tell the court whether the information is true or false; in addition he has vouchsafed no information about the availability of the information he now seeks to injunct in particular about the availability of that information to the public. I felt when I read the papers that a judge being invited to grant wide-ranging injunctive relief was entitled to look for rather greater candour than the claimant has displayed hitherto.

Mr Spearman is a considerable authority in this field. He has represented both defendants and claimants in many privacy cases. He has drawn my attention this afternoon to the dilemma confronting claimants in many privacy cases. The dilemma arises in this way: if a claimant comes clean, if I may use that expression, as to the truth or falsity of allegedly private information or at least gives some detail of the extent to which the information may be true information, then after having obtained and served his order on the media defendants, he is confronted with the provision to be found in CPR part 25 Practice Direction at paragraph 9.2, which deals with the rights of non-parties on whom the claimant has served the injunction. It reads:

“Where such a person served with the order requests –

(1)

a copy of any materials read by the judge, including material prepared after the hearing at the direction of the judge or in compliance with the order; or

(2)

a note of the hearing,

the applicant, or his legal representative, must comply promptly with the request, unless the court orders otherwise.”

As Mr Spearman said, if the large number of media defendants who have been served with the injunction in the present case are to be made aware of the claimant’s explanation as to the extent to which the information sought to be injuncted is true information or partially true information, then those media non-parties are, naturally enough, going to make what they can of the information supplied to them. True it is that the Practice Direction provides that the judge can “order otherwise” when it comes to the question whether the non-parties should be served with all the material placed before the judge including the claimant’s witness statement. Mr Spearman submits that, if the Judge does so order, those served with the injunction may well realise that a judge has ordered otherwise and, at all events in a case such as the present, are likely to smell a rat. They will deduce that the information or some of it is true.

I am quite satisfied that Mr Spearman’s decision to limit the information which he put before the court was a proper exercise of discretion on his part as counsel and that his reasons for taking that course were legitimate and not such as to deprive his client of an entitlement to the injunction which was granted by Gross J. I remain unhappy about the invidious position in which the judge is placed in having to decide whether to grant an injunction when he is, in effect, blindfolded as regards the facts of the case before him. However, for the reasons I have endeavoured to articulate and having heard Mr Spearman’s explanation of the problems confronting privacy claimants such as the present claimant, I am satisfied that this is an injunction which should be continued until trial or further order. I repeat that Mr Lamont indicated that his client did not oppose the grant of an injunction and has not sought to resile from that position.

I should mention a further point which had been ventilated in the course of argument. It arises from the fact that it was, for obvious reasons, always the intention of this claimant to serve notice of the injunction obtained against the defendant on a large number of media organisations. One of those media organisations was Mirror Group Limited, publishers of the Daily Mirror and Sunday Mirror. In consequence of being served with a copy of the order, Mr Marcus Partington on behalf of the Mirror Group emailed the solicitor representing the claimant in the present case asserting that Mirror Group should have been given notice of the hearing of the application for an injunction before Gross J on Friday. He disputed Mr Spearman’s assertion in the skeleton argument put before Gross J that it was unnecessary to serve any media defendant who had not, in one way or another, indicated an interest in the story.

Mr Partington, understandably, placed reliance on what was said by Eady J in X v Persons unknown [2006] EWHC 2783 (QB), and in particular paragraph 18 of that judgment:

“It is not for me to lay down practice directions, but what I can say is that a proper consideration for the Article 10 rights of media publishers, and indeed their rights under Article 6 as well, would require that where a litigant intends to serve a prohibitory injunction upon one or more of them, in reliance on the Spycatcher principle, those individual publishers should be given a realistic opportunity to be heard on the appropriateness or otherwise of granting the injunction, and upon the scope of its terms. As is well known, it is relatively easy for the media in such circumstances to instruct their lawyers to come to court at short notice and, if they are content to do so and no conflict arises, to arrange for common representation (just as, here, Mr Spearman represents the interests both of MGN and NGN).”

I should, for completeness, read paragraph 19 of Eady J’s judgment as well:

“The point of principle for which Mr Caldecott contends [I interpolate that Mr Caldecott was acting for one of the media defendants] can be encapsulated in the terms of the draft placed before the court for this hearing, which obviously mirrors closely the provisions contained in section 12 of the Human Rights:

‘A claimant, who applies for an interim order restraining a defendant from publishing allegedly private or confidential information, should give advance notice of the application and of the injunctive relief sought to any non-party on whom the claimant intends to serve the order so as to bind that party by application of the Spycatcher principle … unless:

(a)

The claimant has no reason to believe that the non-party has or may have an existing specific interest in the outcome of the application; or

(b)

The claimant is unable to notify the non-party having taken all practicable steps to do so; or

(c)

There are compelling reasons why the non-party should not be notified.’

It was no part of Mr Caldecott’s case to argue that the injunction should be discharged altogether. As to that, he was neutral. His clients were only concerned to ensure that, in so far as the restrictions survive, they should be proportionate and not inhibit their freedom of communication beyond what the court believes necessary for the claimants’ legitimate purposes. It is Mr Spearman who seeks to set the order aside in its entirety. To that I now turn.”

I can well understand why Mr Partington read those words of Eady J as in effect obliging a claimant such as the present claimant to notify in advance all those media defendants intended to be served with the injunction. However, I have been provided today with information by Mr Spearman about the facts of X v Persons unknown. As is apparent from its title, it was a case where the claimants themselves were unaware of the identity of the individual defendants whom they sued. As I understand it, the claimants limited their notification of the application to non-parties to third-party to a selected number who had shown some interest in the story. In those circumstances, it appears to me (and I hope I do not misapprehend what the judge said) that Eady J cannot have been contemplating an obligation being imposed on individual claimants, who may be of limited means, to arrange through their legal advisers to serve what might be a substantial body of evidence on a large number of media non-parties. It seems to me that the obligation to serve them must, as a matter of common sense and economy, be confined to those media organisations whom the claimant has reason to believe have displayed an interest in publishing the story which the claimant is seeking to injunct.

I direct there should be redacted from my judgment the quotation which I took from paragraph 6 of Mr Spearman’s skeleton argument and, to make doubly sure, I also direct, in accordance with the Practice Direction quoted in the judgment, that in the event that any third-party seeks a copy of the judgment it should be supplied in that redacted form and not in its totality.