OPQ v BJM & Anor

On 29 January 2011 Cox J granted an injunction to the Claimant which I extended on 2 February (the return date), when its terms were also slightly varied: see [2011] EWHC 160 (QB). Its purpose was to restrain the First Defendant and her partner from publishing confidential material about the Claimant’s private life. On that occasion, I described it as “a straightforward and blatant blackmail case”.

The evidence at that stage showed that the First Defendant, probably through her partner, had been negotiating with a newspaper group to sell intimate photographs and other information obtained in circumstances that were clearly private and in respect of which she owed the Claimant a duty of confidence. There was also evidence as to the likely adverse impact of publicity on the health and wellbeing of various members of the Claimant’s family.

It appeared on the material before me that a large sum of money was being discussed with Associated Newspapers Ltd but, at that point, someone acting on the First Defendant’s behalf contacted the Claimant’s solicitor on the evening of 29 January and told him that she would rather do “a deal” with him. It was said that she thought that the Claimant might prefer to pay some money to make the problem go away for good.

It was obviously a case for the parties to be anonymised with a view to protecting the Claimant’s rights and to reduce the risk of jigsaw identification: see e.g. JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 at [40].

Having decided that the rights of the Claimant and his family under Article 8 of the European Convention on Human Rights and Fundamental Freedoms were engaged, as they so plainly were, the court had to carry out a balancing exercise in the light of an “intense focus” upon the particular facts of the case: see e.g. Campbell v MGN Ltd [2004] 2 AC 457 and Re S (A Child) [2005] 2 AC 593. Paying due regard to the Article 10 rights of the two Defendants, and those of Associated Newspapers, my conclusion was that there was no reason why they should prevail over the Article 8 rights of the persons concerned. There was, for example, no public interest in the confidential information; nor would it contribute to “a debate of general interest”, in the sense contemplated by the European Court of Human Rights in Strasbourg in Von Hannover v Germany (2004) 40 EHRR 1.

Since I was satisfied that the Claimant would be “likely” to obtain a permanent injunction to protect his rights at trial, it was appropriate for me to continue the interim injunction: see s.12(3) of the Human Rights Act 1998 and Cream Holdings v Banerjee [2005] 1 AC 253.

Very shortly after I continued the injunction, copies of it were served on various media interests by the Claimant’s solicitors, so as to notify them of the prohibition and of the court’s intention to maintain the status quo until trial or further order. This was with a view to taking advantage of the so-called Spycatcher doctrine: see Att.-Gen. v Newspaper Publishing Plc [1988] Ch 333 and Att.-Gen. v Times Newspapers Ltd [1992] 1 AC 191. Anyone who revealed the confidential information, having knowledge of the court’s order, and thereby thwarting its purpose, would be liable to be punished for criminal contempt of court. As Lloyd LJ explained in Att.-Gen. v Newspaper Publishing at p.380:

“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.”

In due course, since there was no answer to the claim, agreement was reached between the parties. This included provision for an undertaking to be given to the court not to publish any of the confidential information. Thus the Claimant’s legitimate objectives were achieved and there would be no longer any need for the proceedings to be continued against the Defendants or for a trial to take place.

It is generally thought that once a permanent injunction has been obtained following a trial, or by consent, or an undertaking has been given to similar effect, the Spycatcher doctrine will no longer apply. That is because the court’s purpose, in holding the ring until trial, has been overtaken by events – there will be no need for a trial: see Att.-Gen. v Punch Ltd [2001] QB 1028 at [87]-[88]; Jockey Club v Buffham [2003] QB 462; and X & Y v Persons Unknown [2007] EMLR 290. I have recently so held in a case which is due shortly to be heard in the Court of Appeal. The law may be reconsidered at that stage but, in the meantime, I shall proceed on my present understanding of the position.

There is an application before the court to put into effect the terms of the proposed settlement, but that is for the moment adjourned. Currently, the interim injunction granted on 2 February remains in force and the Spycatcher doctrine continues to apply. As and when it ceases to have effect, however, Mr James Price QC on behalf of the Claimant asks that fresh steps should have been taken to protect him against third parties, since there is good reason to believe that the allegations may well be published in the media once it is thought that the Spycatcher restraints fall away. To that end, he invites me to grant an injunction contra mundum; that is to say, an order that is of general effect.

This is a jurisdiction which was widened, at first rather tentatively, in the immediate aftermath of the Human Rights Act 1998: see the observations of Lord Phillips MR in the Court of Appeal in Re S (A Child) [2004] Fam 43 at [98]-[99], set out below at [16].

The notion of an injunction contra mundum appears to run counter to the principle enunciated over two centuries ago by Lord Eldon in Iveson v Harris (1802) 7 Ves. Jun. 251, 256-7:

“ … I have no conception that it is competent to this Court to hold a man bound by injunction, who is not a party in the cause for the purpose of the cause.”

By the time of the Spycatcher litigation just over 20 years ago, although it remained a fundamental principle that the courts act in personam in accordance with Lord Eldon’s dictum, it had been recognised, that there were “ … certain fairly limited exceptions of which the best established is wardship”: Att.-Gen. v Newspaper Publishing at 377G, per Lloyd LJ. Indeed, not so long before, in X County Council v A [1985] 1 All ER 53, 55h, Balcombe J (as he then was) expressed the view that the power to grant an injunction other than in personam, and which was expressed to extend contra mundum, was confined to the wardship jurisdiction.

The courts had long before inherited the sovereign’s role as parens patriae, the nature of which was described, again by Lord Eldon, in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20:

“ … it belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.”

Where the court was exercising this jurisdiction, it was not confined by the ordinary constraints of inter partes litigation: see e.g. Scott v Scott [1913] AC 417, 483, where it was characterised by Lord Shaw as being “intra familiam”.

Within a short space of time, however, Balcombe LJ (as he had by then become) was acknowledging in Att.-Gen. v Newspaper Publishing, at pp.388-9, together with Sir John Donaldson MR, that the power to grant a contra mundum injunction was not necessarily restricted to the parens patriae jurisdiction.

This traditional terminology, and the constraints that tended to accompany it, have now largely been superseded as a consequence of the Human Rights Act. The courts have recognised that there is now a “new era”: see Venables and Thompson v News Group Newspapers Ltd [2001] Fam 430 at [100], per Dame Elizabeth Butler-Sloss P. It was accepted that remedies had to be fashioned to meet the needs of the particular case in the light of the European Convention. Hence the observations of Lord Phillips MR in Re S (A Child) to which I referred above, at [98]-[99]:

“98.

Dame Elizabeth Butler-Sloss P, sitting in the Family Division, has asserted a jurisdiction to issue an injunction against the world in support of a private law right to confidentiality which is without precedent. In Venables v News Group Newspapers Ltd [2001] Fam 430 an application for an injunction was made by the child murderers of James Bulger, who were about to be discharged from prison, having each reached the age of 18. They were to be given false identities and each sought an injunction against the whole world, to continue for his entire lifetime, restraining publication that might lead to the identification of their identities or whereabouts. Dame Elizabeth Butler-Sloss P granted the injunction. In so doing she was strongly influenced by the fact that the claimants’ human rights under Articles 2 and 3 would be threatened if their identities were disclosed. This decision was novel in at least two respects: (1) Dame Elizabeth Butler-Sloss P recognised a private law right to confidentiality protecting the identities and whereabouts of the two claimants valid against the whole world; (2) the President held that she had jurisdiction to grant an injunction in protection of private law rights against all the world.

99.

In X (formerly Bell) v O’Brien [2003] EWHC 1101 (QB), Dame Elizabeth Butler-Sloss P made similar orders protecting the identity and whereabouts of Mary Bell and her daughter. These two decisions are not directly relevant to the present case. They exemplify, however, the manner in which the courts have extended both the scope of confidential information and the use of the injunction to protect this, thereby giving effect to the right to respect for private life conferred by Article 8 of the Convention.”

This approach was developed and further explained by the House of Lords in the same case. Correspondingly, the significance of historical distinctions has rather faded into the background. The view was unanimously expressed by their Lordships that the earlier case law about the inherent jurisdiction need no longer be routinely considered, since the foundation of the jurisdiction to restrain publicity could be regarded, since the advent of the Human Rights Act, as deriving from the rights guaranteed under the Convention. It thus becomes, on the facts of any given case, a matter of carrying out the ultimate balancing test: [2005] 2 AC 593 at [17] and [23]. The court always needs to have in mind the following considerations when applying this new methodology in relation to conflicting Convention rights:

It is now acknowledged, therefore, that the court’s power to grant an injunction contra mundum is not confined to the wardship jurisdiction; nor to children; nor to “individuals who cannot take care of themselves”. The remedy is available, wherever necessary and proportionate, for the protection of Convention rights whether of children or adults.

It so happened that in the early case of Venables and Thompson the court was concerned to protect their rights under Articles 2 and 3. Dame Elizabeth Butler-Sloss at that stage expressed some doubt as to whether she could have made such an order for the purpose solely of vindicating rights under Article 8. Those doubts were resolved, however, not long afterwards in the Mary Bell case, where the evidence fell short of establishing a need to protect her rights under Article 2 or Article 3. Account was taken of Strasbourg jurisprudence and particularly Bensaid v United Kingdom (2001) 33 EHRR 10. Her Ladyship referred, at [22], to the importance attaching to the physical and psychological integrity of human beings and the relevance of Article 8 in that context. This had been explained in Bensaid at [46]-[47]:

“46.

Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect for private life guaranteed by Art.8. However, the Court’s case-law does not exclude that treatment which does not reach the severity of Art.3 treatment may nonetheless breach Art.8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.

47.

Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Art.8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”

She was accordingly prepared to grant relief to Mary Bell in respect of her Article 8 rights in the light of medical evidence about her mental fragility.

Mr Price referred also to the similar case of Carr v News Group Newspapers Ltd [2005] EWHC 971 (QB). Evidence was before the court which gave reason to suppose that the claimant’s physical wellbeing was at some risk, but there too reference was made to Article 8 and to the analysis in Bensaid:

“Of course the applicant’s rights under article 8 of the Convention are also engaged. Those relate to privacy, which is a concept wide enough to include a person’s physical and psychological integrity. The preservation of mental stability is recognised as being a necessary precondition for the exercise of rights under Article 8.”

Accordingly, the need to protect her mental health was one of the grounds for granting her a contra mundum injunction.

The matter had been put beyond doubt a few months earlier by the decision of the House of Lords in Re S (A Child) where the court’s jurisdiction was held, at [23], to be “not in doubt” whenever it became necessary to protect Article 8 rights:

“The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases.”

Despite these clear statements of principle, earlier doctrinal distinctions have resurfaced in argument from time to time; for example, in the recent case of Spencer v Spencer [2009] EMLR 25 where, at [26], Munby J (as he then was) had to re-emphasise the wide reach of the Convention: “Adults and children are equally entitled to the protection of the Convention”. Where necessary, the court has the power to give effect to Article 8 rights by granting what he described as a “blanket order preventing any publication”.

The House of Lords again had the opportunity in Re BBC [2010] 1 AC 145 to revisit and further explain the jurisdiction identified in Re S (A Child). The House of Lords, as any other court, was bound to act compatibly with Convention rights and may thus be called upon to strike the appropriate balance in case of conflict and, where necessary, to make a contra mundum order.

In the present case there is solid medical evidence as to the health, including the mental health, of the Claimant and various family members. Their rights plainly need to be taken into account: see e.g. Donald v Ntuli [2011] 1 WLR 294 at [24]. It is clear that publicity relating to the subject-matter of the present dispute could have very serious consequences. It may well be that this is one of the main reasons why opposition was withdrawn by various newspaper groups shortly before Mr Price made his application before me. The Claimant’s advisers had been notified that leading counsel was to be instructed on their behalf to resist the order, but once the evidence was disclosed to them the matter was not pursued. I have no idea, therefore, what the grounds of opposition might have been. The only representations I have are in the form of a letter from MGN Ltd querying the jurisdiction (a concern I have endeavoured to answer) and urging that the order should contain a public domain proviso. In those circumstances, I have to carry out the balancing exercise as best I can on the information before me.

There is no material on which I could conclude that any of the protected information is in the public domain; nor that there would be a legitimate public interest in its disclosure; nor that there would be any question of exposing or detecting crime; nor that the information would make any contribution to “a debate of general interest”: see Von Hannover v Germany, cited above, at [60] and [76]. As was said in Leempoel v Belgium (64772/01) on 2 November 2006:

“Whilst the right for the public to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political personalities are involved … publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society.”

A fortiori here, where the Claimant is a private citizen.

I therefore come to the same conclusion as on 2 February, when the case first came before me. There is no doubt that the Claimant has a reasonable expectation of privacy in respect of the information in question, or that the Article 8 rights of other family members are engaged. There is no reason why the Article 10 rights of the Defendants or indeed of anyone else should prevail and, therefore, the “ultimate balancing” comes down firmly in favour of protecting the Claimant’s rights. Furthermore, in view of the clear risk of publication in the media, there is unfortunately no other means open to the court of fulfilling its obligation under the Human Rights Act to protect those rights than to grant a contra mundum injunction. Accordingly, it is necessary and proportionate to do so.