Goodwin v News Group Newspapers Ltd

On 9 March 2011 Sharp J made an order in this Case No HQ11X00782 under the name MNB v News Group Newspapers Ltd. She handed down a written judgment [2011] EWHC 528 (QB) setting out her reasons. This judgment has been available since within days of 9 March on www.baillii.org. By the time the matter came before her NGN did not oppose an order prohibiting them from identifying either the Claimant, then known as MNB and now known as Sir Frederick Goodwin, or the lady with whom he had a relationship. They did however want to publish information which they said did not identify him, or tend to identify him.

Paragraph 1 of the order prohibited the publication of:

"(a)

Any information concerning the subject matter of these proceedings or any information identifying or tending to identify the applicant save for that contained in this Order and in any public judgment of the court given in this action.

(b)

Any information concerning the fact or details of any sexual relationship between the Applicant and the person named in the Confidential Schedule to the Order….."

Paragraph 1 went on to provide that:

"nothing in paragraph 1 of this Order shall prevent the Respondent from publishing, communicating or disclosing any material that before the service of this Order was already in, or that thereafter comes into, the public domain as the result of national media publication (other than as a result of this Order or a breach of confidence or privacy)".

NGN asked Sharp J for permission to appeal to the Court of Appeal. She refused permission. NGN then had the right to apply to the Court of Appeal for permission to appeal. It did not apply to the Court of Appeal. The order provided, as such orders always do provide, that anyone served with or notified of the order was entitled to apply at any time to the court to vary or discharge the order on giving notice. No third party intervened to apply to vary the order until 19 May, although the fact that there was an order received the most extensive publicity. All media organisations are aware that they (or any member of the public) served with or notified of the order are always free to apply to the court to have any injunction varied or discharged where the order restrains any publication or interferes with the right of freedom of expression. This is a right which media organisations exercise only very rarely.

On 19 May 2011 in the morning there were numerous reports that in Parliament Lord Stoneham on behalf of Lord Oakeshott had identified Sir Frederick Goodwin as the applicant for that injunction. NGN gave short notice to the court and to Sir Frederick Goodwin that it wished to apply to discharge the injunction of 9 March in its entirety on the grounds that it would be in the public interest for there to be publication outside Parliament of the information of which publication was prohibited by the order, and on the ground that that information was already available to the public in the form of reports of proceedings in Parliament. If this statement had been made outside Parliament it would have been a contempt of court. But court orders do not prohibit members of either House from making of statements in Parliament.

At 2pm at a hearing in open court, Mr Tomlinson, spoke first, on behalf of Sir Frederick Goodwin. He stated that Sir Frederick Goodwin did not oppose a variation of the injunction which would permit publication of the fact that it was himself who had applied for the injunction on 9 March. But he opposed the discharge of the whole order. The parts of the order that he submitted should remain in force were the parts which prohibited identification of the lady with whom he had had the relationship, and details of the relationship, other than the fact that she was a work colleague.

NGN had not given notice to the lady of its intention to apply to discharge the injunction. So she was not represented and had no opportunity to give evidence or make submissions to the court.

After hearing argument from Mr Spearman for NGN and MGN and from Mr Caldecott for ANL, at about 15.30 I announced in open court that I would vary the injunction substantially in the form proposed by Mr Tomlinson, subject to further detailed amendments to the drafting to be agreed by counsel. A form of order was sent to me later in the evening as an agreed draft, and I formally made the order in that form at about 18:15.

After announcing my decision in court, I explained to the journalists then in court, but who had not been present at 2pm, what had happened. What I said included the following:

“1.

There was no superinjunction made or asked for. The Order made by Sharp J and the reasons for it are both public documents and the reasons have been available since 9 March on www.bailli.org

2.

The injunctions of 1st and 9th March were not intended prevent disclosure of any information to the FSA or to any regulatory authority. There was a discussion between counsel on this in court at my request and there was unanimous agreement on this point, and that if anyone proposing to make any such disclosure was in doubt, then the order could and would have been varied accordingly upon the matter being drawn to the attention of the court.

3.

The court does take into account the public interest as required by HRA s.12(4), and in this case the position is as set out in para 1 of Sharp J's judgment of 9 March. By 1 March the first suggested public interest argument had been abandoned in advance of the hearing before Henriques J. The second public interest argument that had been suggested was not in fact advanced, as Sharp J set out in para 6 of her judgment.

4.

A third public interest argument was raised before me yesterday for the first time by Mr Caldecott QC for Associated Newspapers. It was to the effect that there might have been a breach of the corporate governance code of RBS, as suggested by Lords Oakeshott and Stoneham. I asked counsel whether any one had asked RBS, Sir Frederick Goodwin or the lady concerned about compliance with the code. He said they had not. He accepted that in those circumstances, if the imputation were published it would be damaging to others, and that a claim for defamation could not be defended as responsible journalism in accordance with Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

5.

No injunction had ever prohibited anyone from calling Sir Frederick Goodwin a banker. The injunction had prevented publication of the fact that the person who applied for the injunction on 1^st and 9^th March was a banker. That person was, of course, Sir Frederick Goodwin. But Sharp J had held that that part of the order was necessary because if the applicant were identified as a banker that would be likely to lead to his being named, which would defeat the purpose of granting him anonymity”.

I made these remarks in the light of the press reports which counsel produced and referred to in court. If the words attributed to Lords Oakeshott and Stoneham are correct, then these reports disclose a fundamental misunderstanding on the part of them, and on the part of many other commentators, of the facts of the present case. A typical report is that on the Telegraph website of 19 May under the heading “Lord Breaks Superinjunction on Fred Goodwin”. In the form in which it was printed out and put before the court the article read:

“Details of the draconian injunction - so strict that it prevents Sir Fred Goodwin being identified as a banker - were disclosed by Lord Oakeshott, a Liberal Democrat peer, in a question during a debate at the House. His comments are protected by parliamentary privilege.

Ben Stoneham, who read the question on behalf of Lord Oakeshott, said: "Would he accept that every taxpayer has a direct public interest in the events leading up to the collapse of the Royal Bank of Scotland?

"So how can it be right for a super-injunction to hide the alleged relationship between Sir Fred Goodwin and a senior colleague. If true it would be a serious breach of corporate governance and not even the Financial Services Authority would know about it."

The Royal Bank of Scotland's code of conduct recommends that staff inform management about any relationships which pose a potential conflict of interest. It is not known whether Sir Fred revealed details about the alleged relationship to the board.

The existence of the draconian injunction was first disclosed by John Hemming, a back bench Liberal Democrat MP on the floor of the House of Commons earlier this year. The terms of the injunction have remained secret until now …

Super-injunctions – under which even the reporting the existence of the injunction is banned – are increasingly being used by powerful corporations and wealthy individuals to stop the media from publishing information.

The Daily Telegraph revealed last week that the rich and famous have obtained nearly 80 gagging orders in British courts in the last six years to block publication of intimate details of their private lives”.

In addition to the five inaccuracies (listed in para 9 above) in the words attributed to Lord Stoneham, the Telegraph report contained further inaccurate and misleading statements, as can be seen from the following:

“6.

Since January 2010, so far as the Committee [that is the Committee chaired by Lord Neuberger MR whose report was published on 20 May] is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

7.

Although many of those who obtain injunctions and anonymised orders to restrain the publication of private or confidential information are rich and famous, many others are not, and some are amongst the most vulnerable children: see the judgment of Baker J in W v M & Ors [2011] EWHC 1197 (COP) (12 May 2011) at para [44], and my judgment in TSE and ELP v NGN Ltd [2011] EWHC 1308 (QB).

According to s.12 (3) of the HRA, an injunction before trial is not granted unless the court is satisfied that the applicants are likely to establish that publication should not be allowed. And in coming to its finding on that question, the court is obliged to and does have regard to the public interest and to the other matters set out in s.12(4), which reads:

“(4)

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.”

The privacy code relevant to the press is that of the Press Complaints Commission. Other codes are relevant to other media, but for present purposes the differences are not material. The PCC Code provides, so far as material:

3.*Privacy

i)

Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii)

Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.

The public interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

1.

The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2.

There is a public interest in freedom of expression itself.

3.

Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.

4.

The PCC will consider the extent to which material is already in the public domain, or will become so…”.

As stated by Sharp J in her judgment, no case of public interest had been advanced before herself. A very weak one was advanced before Henriques J, which he rejected. By the time the matter came before Sharp J, the two ‘public interest’ arguments flagged up by NGN before the matter came to court at all, had been abandoned. The court will nevertheless consider the public interest in every case in any event.

Before me there were two arguments advanced on public interest, one by Mr Spearman and one by Mr Caldecott. I shall consider Mr Caldecott’s argument first.

Prompted by the words attributed to Lord Stoneham, Mr Caldecott produced to the court a print out from the RBS website of the RBS group Code of Conduct on Integrity Matters (dated August 2007). At pages 11 to 13 there are provisions relating to conflicts of interest and disclosure. But that was all that he produced.

Courts of law act on evidence, and only on evidence. The court cannot act on speculation. As I noted above, I asked Mr Caldecott whether any one had asked RBS, Sir Frederick Goodwin, or the lady concerned about compliance with the code. He said that ANL has no evidence that anyone was asked about a possible breach of corporate governance. As stated above, at that point he accepted that in those circumstances, if the imputation were published it would be damaging to others, and that a claim for defamation could not be defended as responsible journalism in accordance with Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

It follows that there is no evidence before the court upon which the court could find that there is a public interest in the publication of a report imputing a breach of the code of conduct on the part of Sir Frederick Goodwin or the lady concerned. Mr Caldecott did not adopt the proposition attributed to Lord Stoneham, namely that if there was a relationship between Sir Frederick Goodwin and the lady who was a work colleague, then that by itself “would be a serious failure of corporate governance”. He was right not to do so. Whether or not it would be such a failure must depend on the particular facts of the case, and what, if any, disclosure was made.

When the court is provided with no evidence of the particular facts, the court cannot find a breach of corporate governance has, or even may have, occurred. If evidence is produced in the future, that evidence can be put before the court, together with any evidence and submissions from Sir Frederick Goodwin, the lady and RBS.

It is a further requirement of justice that the court should not make a finding adverse to a person in circumstances where that person has been given no warning of the case which is advanced against him or her.

In this case Associated Newspapers (“ANL”) had given no notice to Sir Frederick Goodwin, or to the lady, that it was proposing to advance this new case on public interest. So Sir Frederick Goodwin and the lady had had no opportunity to respond to the case in court. If NGN or any other person wishes to advance this point to the court in the future, the terms of the order permit them to do so, provided that they have given proper notice of their intentions.

NGN, through Mr Spearman, advanced a quite different new case on public interest. His case was that the order of Sharp J should be discharged in its entirety. He submitted that, given what Lord Stoneham was reported to have said in Parliament, it would now be in the public interest for there to be published all information about the relationship between Sir Frederick Goodwin and the lady, including names, the duration of the relationship and information about her job, but excluding sexual and salacious details and information about the lady’s family.

He candidly referred the court to a note of the hearing before Henriques J on 1 March, when the position of NGN had been very different. In that note it is recorded that NGN’s case was that: “The identity of [the lady] is not of significance for the story, nor indeed is the fact that she is an employee of the bank… the issue is pure adultery overlapping the [ABN AMRO] deal”.

At that point I intervened to ask whether it was NGN’s case that I should remove the anonymity which the lady was given by the orders of 1 March and 9 March without the lady having been given any notice that NGN was asking the court to do that. Mr Spearman confirmed that no such notice had been given to the lady.

Surprisingly, NGN was itself surprised by this question, and was unprepared to answer it. Mr Walford, the lawyer instructing Mr Spearman left court to seek specific instructions on the point from NGN.

Some minutes later Mr Walford returned to court. After taking instructions, Mr Spearman stated that NGN accepts that the lady should have an opportunity make representations to the court before any variation is made to the injunction which affects her or her family. At first I understood that it was NGN’s intention to give notice to the lady, which I stated should be three clear day’s notice. But later in the afternoon Mr Spearman and Mr Caldecott made clear that NGN, MGN and ANL did not propose to pursue the case that the lady’s anonymity should be removed, and so no immediate notice would be given by them to her of any such application. However, at Mr Spearman’s suggestion a provision was included in the Order that I made enabling any application affecting the rights of the lady or her family to be made on 3 days notice to the lady.

As I understood it, that was the end of NGN’s and ANL’s new (and only remaining) case on public interest. However, the case would have been weak, even if Sir Frederick Goodwin and the lady had been given proper notice of it in advance. There is no public interest in the publication of misinformation, or in speculation as to matters damaging to individuals when those matters have not been the subject of any investigation, and are unsupported by any evidence. I repeat that the orders of 1 and 9 March did not prevent anyone from carrying out any investigation or from giving information to the FSA or any other person responsible for investigating the affairs of RBS.

It is the duty of the court to have regard to the rights of persons who are or might be affected by any order that it makes, whether or not those persons appear before the court. It is for this reason that, before granting an injunction to restrain a publication, the court must have regard to the Art 10 (freedom of expression) rights of the media and others. It is also for this reason that the court must have regard to the Art 8 (privacy) rights of the other party to any sexual relationship, and any children.

It was for these reasons, and in these circumstances, that I varied the injunction ordered on 9 March, but only so as to remove the prohibition upon identification of Sir Frederick Goodwin, while leaving in force the prohibition relating to the lady.

For the avoidance of misunderstanding, the variation or discharge of an injunction does not affect the right that any person may have to pursue a claim for damages for invasion of privacy, or for defamation. This action must now proceed in the usual way.

Almost all cases in which privacy injunctions are granted are published within a day or two on the British and Irish Legal Information Institute (Bailii) website (along with many other judgments of many different courts). The site has an effective search engine. Judgments on this site do not normally appear when searches are carried out with other search engines, so it is necessary to go to the site itself.