Goodwin v News Group Newspapers Ltd (Rev 1)

Notwithstanding the title to the action, this judgment relates to Associated Newspapers Ltd (“ANL”), and not to the Defendant News Group Newspapers Ltd.

The Applicant is a lady with whom Sir Frederick Goodwin is alleged to have had an affair while both were working for RBS, before RBS had to be rescued by public funds some 18 months or so ago. The application before me is by the lady alone, represented by Mr Tomlinson QC. She asks me to refer to the Attorney-General a publication in the issue of the Daily Mail dated 20 May 2011. She submits that ANL is in contempt of court by it conduct impeding the purpose the court sought to achieve in making the order against the Defendant.

In Attorney-General v Punch [2003] 1 AC 1046 Lord Nicholls said:

“2.

Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him…    

3.

The form of contempt asserted by the Attorney General in the present case is different, although closely related. Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order….

4.

Aiding and abetting a breach of the order by the person specifically restrained by the order is not always an essential ingredient of 'third party' contempt. The purpose of a court in making an order may be deliberately frustrated by a third party even though he is acting independently of the party against whom the order was made. An interlocutory order for the non-disclosure of information is the paradigm example of the type of order where this principle is in point. The Spycatcher litigation is the best known recent instance of this. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing if the acts done have some significant and adverse affect on the administration of justice in that action: see Lord Brandon of Oakbrook in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 203D, 206G-H, and, for the latter part, Lord Bingham of Cornhill CJ in Attorney General v Newspaper Publishing plc [1997] 1 WLR 927, 936. Lord Phillips MR neatly identified the rationale of this form of contempt, at [2001] QB 1028, 1055, paragraph 87:

"The contempt is committed not because the third party is in breach of the order - the order does not bind the third party. The contempt is committed because the purpose of the judge in making the order is intentionally frustrated with the consequence that the conduct of the trial is disrupted.”

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. On 19 May I made a fresh order in substitution for that of 9 May. In it I identified MNB as Sir Frederick Goodwin. My reasons are set out in my judgment [2011] EWHC 1309 (QB). Both judgments are available in the usual way on www.bailii.org. At that hearing Associated Newspapers Ltd had been represented by Mr Andrew Caldecott QC. He had made submissions, as recorded in my judgment.

The order of 19 May prohibits, amongst other matters, the disclosure of

“any information identifying or tending to identify the person named in the Confidential Schedule as being the person with whom [Sir Frederick Goodwin] is alleged to have had a sexual relationship, save for that contained in this Order and in any public judgment of the court given in this action”

The issue of the Daily Mail dated 20 May contained extensive coverage of the story. Much of the front page is the headline “Sir Fred’s affair: why we do have a right to know”. Words at the bottom of the page direct the reader to page 6. Page 6 continues the story from page 1 at the lower half of the page. On the upper half of page 6 there is another article under the headline “Did Sir Fred’s affair with senior colleague affect his judgment before RBS collapse?” On page 7 there is a commentary by John Hemming MP, and three shorter pieces in boxes. There is also a comment piece on page 14.

The main basis for the allegation of contempt of court is the box in the upper half of page 6. It consists of about 360 words and a pixellated photograph of the lady. Mr Tomlinson submits that it contains the following items of information about the lady each of which he submits identify her, or tends to identify her: (1) the pixellated photograph reveals her hair style and colour: (2) the title and the third paragraph indicate the size of her salary (the figure is one which few women earn in any organisation) and (3) the importance of her job; (4) the fifth paragraph gives her age (as does the continuation of the article from page 1); (5) the sixth paragraph gives information about her degree level education and (6) another qualification, which relatively few people achieve; (7) it also describes her previous employer, (8) her family status and (9) whether she has children; (10) the ninth paragraph describes the kind of neighbourhood and house in which she lives and in which part of the country.

Mr Caplan stated that certain further information in the fifth paragraph about the lady’s job is false. Mr Caplan stated that information was known by ANL to be false. He said it was a deliberate falsehood.

In the third and eighth paragraphs there is information given that she had been promoted whilst Sir Frederick Goodwin was in charge of RBS. Mr Tomlinson informed the court that this information is also false. Mr Caplan did not disagree. As to this information Mr Caplan said he did not know whether ANL knew it to be false or not, at the time when it was published.

The effect of the false information, according to Mr Caplan, was that it would tend to make a reader less likely to identify the lady.

As I remarked in court in response to that submission, another effect of the false information is that it would tend to mislead the reader into believing that it would be in the public interest for the identity of the lady to be disclosed. In other words, it laid the supposed factual basis for the public interest argument advanced by Mr Hemming in his piece on page 7, and the editorial on page 14, as well as of the headline on page 1.

No such alleged facts had been advanced to the court by Mr Caldecott on 19 May. Mr Caldecott had submitted that there was, or might be, a question as to whether there had been a breach of rules of corporate governance. But he had produced no evidence of that, nor any evidence that anyone had asked Sir Frederick Goodwin, the lady or RBS about that: see my judgment [2011] EWHC 1309 (QB) para 9, points 4.

If ANL had believed the information about the lady’s promotion to be true, I would have expected Mr Caldecott to put it at the forefront of his argument. But he did not mention it.

If ANL had had evidence of a misuse of corporate power by Sir Frederick Goodwin then that might have been a very powerful argument for discharge of the injunction. See Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] 1 QB 103. As the Court said at para [52]:

“The question asked by the judge at [43] is a pertinent one; namely whether there can be a reasonable expectation that the law will protect the privacy of a senior executive, in relation to the use of corporate information and resources, when the effect would be to keep such allegations from those who might ordinarily be expected to make the relevant judgments, or exercise supervision; that is to say, shareholders and colleagues on the board of directors. It was in our opinion open to the judge to answer that question in the negative.”

The Commentary by Mr Hemming on page 7 and the editorial on page 14 also each persist in a further incorrect statement which tended to mislead the reader into supposing that there was a public interest in the discharge of the injunction which did not in fact exist.

Mr Hemming’s piece includes the words that the injunction

“prevent[ed] the authorities from investigating matters they have every right to look into”.

I had explained in open court on 19 May in the presence of a number of representatives of ANL that that was not correct: see my judgment [2011] EWHC 1309 (QB) para 9, point 2.

A judge can refer to the Attorney-General a publication which is alleged to be an interference with the administration of justice.

In the present case I have decided not to do that. It is therefore unnecessary for me to consider the submissions of Mr Tomlinson and Mr Caplan on the law.

The reason that I decline to make the reference is that in my judgment it would not assist the Attorney-General. The lady is free to refer the matter to the Attorney-General herself, and the Attorney-General is free to act of his own motion. This case has received extensive coverage in very many newspapers and other news media, and has been the subject of public judgments.

If the Attorney-General does decide to consider this matter, the contents of this judgment will be available to him.