JIH v News Group Newspapers Ltd

On 20 July 2012 the cases referred to in the title to this judgment were listed for a case management conference. In respect of all cases other than NOM v News Group (which was listed at the request of the parties) this was by order of the court made of its own motion. Judgments previously given in these actions are to be found on Bailii and in other reports, as follows:

Letters from the court dated 19 June 2012 to each of the parties directing that the cases be listed included the following:

“As you will be aware, in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580, [2012] 1 WLR 782 para 18 the Master of the Rolls said that he had in ‘mind especially para 36 of the Practice Guidance, which requires a party, who has an interim injunction restraining publication of information, to keep any affected non-party informed of developments in the case, and paras 37-41, which require active case management of such a case’.

You will also be aware that an injunction that might affect the right of freedom of expression of third parties must comply with the Convention and the HRA.

It appears that this is a case where the interim non-disclosure injunction that was granted might affect the Convention right of freedom of expression of non-parties.

From a review of the court file it appears that there have been no steps taken to progress this claim in accordance with the CPR for some considerable time.”

In each of these cases (other than NOM) the injunction in force restrained the publication of private or confidential information of a personal nature, and in each case the defendant was the same. The Claimants who are anonymised are all persons who have achieved success in a sporting or other popular activity. Others in respect of whom orders for anonymity have been made are persons associated with the Claimants.

According to the court records the above cases were ones in which the claimants were taking no steps, either to reach a final order by agreement, or to bring the cases to trial in accordance with the CPR, as the Master of the Rolls has said they should, save that Mr Goodwin sent to the court on 4 April 2012 a copy of a letter concerning attempts at settlement which have proceeded since then. This was notwithstanding further reminders of this obligation given in Giggs v News Group Newspapers Ltd [2012] EWHC 431 at [78]-[79] and [97]-[111]; Spelman v Express Newspapers (No 3) [2012] EWHC 392 at [3]-[7].

A defendant subject to an injunction (and any non-party affected by an injunction), is always free to apply to the court for an injunction to be discharged if a claimant fails to comply with the requirements of the CPR. It is a feature of these cases that, although it did make much publicised, but unsuccessful, applications on other grounds, the Defendant did not apply to the court to strike out the claims, or discharge the injunctions, on the grounds of the Claimants’ non-compliance with the CPR. The effect of its omission to enforce its rights in this way has been that the time has never come when it had to serve a defence. So there is nothing on the public record to show what defence it might have raised, or, if such be the case, that it had no defence to the claims.

Between the date of the letter from the court and 20 July the parties in each of those cases submitted to the court forms of consent order. These were agreed as, or as part of, the terms on which the parties had reached final settlements of their differences. The Court will normally make consent orders to give effect to settlements of litigation of all kinds, in so far as the agreements compromise the rights of the parties to the litigation.

However, as is common in claims for breach of confidence or privacy, each of the proposed consent orders incorporates terms continuing the anonymity orders that were still in force when the agreements were reached, and other terms protecting the confidentiality of certain documents, including those on the court file. Orders of that kind are derogations from the principle of open justice and affect the rights of third parties. Accordingly before making consent orders in such terms, the court has to be satisfied that the derogations from open justice are necessary for one of the purposes recognised by the law, in these cases mainly the rights of parties and non-parties to the litigation to respect for their private life.

As the Court of Appeal stated in JIH para [21(4)], where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.Practice Direction 23A provides:

“10.4

The parties to an application for a consent order must ensure that they provide the court with any material it needs to be satisfied that it is appropriate to make the order. Subject to any rule or practice direction a letter will generally be acceptable for this purpose”.

The parties did not initially provide such material (other than in the case of XJA), but at the invitation of the court, they have subsequently submitted to the court explanatory e-mails and notes, and some more detailed submissions, and the parties have requested that the matters be disposed of without an oral hearing.

Having considered the forms of consent order and the further submissions, I informed the parties that I would dispose of the cases on paper, and give a judgment to explain publicly what had happened. Accordingly there was no public hearing, but there is this written explanation of why I have made the orders that I have made.

The orders are all public documents (except in so far as they specify parts of them which are to remain confidential) and are available from the court upon request in accordance with the CPR. This judgment should not be taken as containing a complete account of what is in the orders. Any persons concerned as to whether they might be affected by the orders should read the orders themselves.

In Goodwin (formerly MNB) there was an appeal against the order that I had made on 9 June 2011 ([2011] EWHC 1437 (QB)) concerning the form of the order as it related to a non-party identified as VBN. The order that I made prohibiting identification of VBN was made for the reasons set out in paras [118]-[122]. No Particulars of Claim, and so no Defence, was ever served.

The date fixed for the hearing of that appeal was in March 2012. The date was vacated, and the issue compromised on terms set out in a consent order made by the Court of Appeal on 1 May 2012. The extent of the limited information that I would have permitted to be published concerning VBN was narrowed by this order of the Court of Appeal.

The consent order is made pursuant to an agreement to which VBN is a party. It provides for the action to be stayed on terms. The main provisions which may affect non-parties are as follows. The injunctions made on 1 March 2011, 9 March 2011 and 9 June 2011 (as amended by the order of the Court of Appeal) are discharged. There is a permanent injunction granted prohibiting the Defendant from identifying VBN or disclosing specified information concerning VBN, subject to various provisos. There are provisions in accordance with CPR r.5.4C restricting the disclosure of specified information or documents from the court file. Non-parties affected by the order have permission to apply to the court to vary or discharge the order. The order protecting the anonymity of VBN is maintained for reasons discussed below.

This case was the subject of an appeal to the Court of Appeal. The judgment of that court is referred to above. The order of the Court of Appeal was sealed on 2 February 2011. No Particulars of Claim, and so no Defence, was ever served.

The consent order provides for the action to be stayed, and for the discharge of the substantive injunctions granted to prohibit disclosure of information concerning the sexual relationship between the Claimant and another person, and the identity of that other person. Non-parties affected by the order have permission to apply to the court to vary or discharge the order.

ETK was the subject of an appeal to the Court of Appeal. No steps have been taken in this action since the order of the Court of Appeal dated 19 April 2011. In MJN no step has been taken since the grant of the injunction on 11 May 2011. In TSE and ELP no step has been taken since the grant of the injunction on 19 May 2011. No Particulars of Claim, and so no Defences, were ever served.

The consent orders in ETK, MJN, TSE and ELP are in similar terms. The consent order provides for the action to be stayed, and for the discharge of the substantive injunctions granted to prohibit disclosure of information concerning the Claimants, or information concerning the Claimant and another person, and the identity of that other person. There are provisions in accordance with CPR r.5.4C restricting the disclosure of specified information or documents from the court file. Non-parties affected by the order have permission to apply to the court to vary or discharge the order.

In XJA and NOM the position differs from that of the other cases in that Particulars of Claim and Defences have been served, and the delays are much less than in the other cases. In XJA a Defence was served on 13 April 2011.

In XJA in a witness statement Mr Lamont, solicitor for the Claimant, has informed the court that the non-disclosure order granted by Calvert Smith J on 11 November 2010 was served on Mirror Group Newspapers, Northern & Shell (publishers of the Express titles), Associated Newspapers (publishers of the Mail titles), Reuters News UK and the Press Association. The claim form was issued on the same day. The matter came before the court on a number of occasions which it is not necessary to recount. On 11 March 2011 Particulars of Claim were served. On 13 April 2011 a Defence was served. The Defendant pleaded that the publication of the information in question would be in the public interest and would not in any event be an interference with the Claimant’s rights and that a restriction on such publication would be contrary to the Defendant’s Art 10 rights.

In NOM the Claimant gave notice of an application for an injunction, but by a consent order made on 24 June 2011 the hearing was vacated on terms that the Claimant could restore the application if the Defendant gave 48 hours notice of an intention to publish the information or purported information the disclosure of which the Claimant wished to prevent. The Particulars of Claim included claims both for misuse of private information and harassment. On 18 July 2011 the Defendant served a Defence covering over 20 pages. On 23 August 2011, at the request of both parties, Master Fontaine made an order that the claim be stayed for one month for settlement.

The consent order which I have made provides that both these actions be stayed. The substantive injunction granted in XJA is discharged, but there remains in force an order prohibiting disclosure of the Claimant’s name as the claimant in either of the two actions. There are provisions in accordance with CPR r.5.4C restricting the disclosure of specified information or documents from the court file. Non-parties affected by the order have permission to apply to the court to vary or discharge the order.

The fact that the various injunctions granted in these actions have been discharged does not mean that it would be lawful for anyone to publish the information disclosure of which had been prohibited by those injunctions.

A non-disclosure injunction must not be made or maintained by the court unless that is a necessary and proportionate measure for one of the purposes set out in Art 10(2) of the European Convention on Human Rights. There are a number of different reasons why an injunction that has been granted may be discharged. Such an injunction will no longer be necessary if the defendant who had been threatening to make the disclosure is no longer threatening to do so. Such an injunction may be discharged if the claimant has decided for whatever reason that they do not wish to proceed with the action. But if any claimant decided not to continue with the action against this defendant, that may not be a bar to that claimant commencing another action of some other person threatened in the future to disclose information which was the same or similar to the information the subject of the action which has not been proceeded with. Whether or not the claimant could start another action would depend upon the circumstances.

It follows that no reader of this judgment or of the orders can know simply from reading the judgment or order whether or not it would be lawful for someone other than the defendant to disclose the information in question now or in the future. If anyone knows, or believes that they know, what the information in question in any given case may be, then they would need to take advice as to whether publication of that information in the future would be lawful or not.

It is impossible to tell from the mere fact that the injunctions have been discharged whether or not the claimants have achieved by bringing these cases objectives which are of value to them. Equally, it is impossible to tell from the mere fact that the injunctions have been discharged whether or not the Defendant has been effectively prevented from disclosing information which, but for the injunctions, it would have disclosed. The actions have been compromised.

The orders for anonymity of the Claimants were made for reasons set out in the public judgments, or, in those cases where no public judgment addresses that issue, then for similar reasons. The test, as set out in para [21(5)] of the judgment of the Court of Appeal in JIH is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life. Where anonymity orders have been made or continued it is because the court is satisfied that there is no such public interest.

The solicitors acting for those who benefit from existing anonymity orders submit that it is necessary that those orders be continued. They submit that the public judgments contain information the publication of which the claimants sought to prohibit by bringing these actions. If the anonymity orders were now discharged, then the purpose of the actions would be defeated. It was the understanding of the courts that disclosed the information in the public judgments that they could do so without prejudging the rights of the parties so long as the anonymity orders were in place. Since the consent orders do not amount to any admission by the Claimants that the actions have failed in their purpose, or were bound to fail, it would be wrong to discharge the anonymity orders.

The order for the anonymity of VBN was made for reasons similar to the anonymity orders made in respect of the Claimants. The information that has been disclosed about Fred Goodwin and VBN is information of a personal and private nature, and such that VBN has a reasonable expectation of privacy in relation to it.

The Defendant makes no submission as to whether the anonymity orders are necessary or not. The Defendant leaves that to the court, as it is entitled to do.

In my judgment it is necessary for the anonymity orders to remain in force for the reasons submitted on behalf of the claimants.

As already observed, non-disclosure orders affect the Art 10 right of freedom of expression not only of the defendant, but also of others who may wish to publish or receive information. This is referred to as the 'Spycatcher principle' (see Attorney-General v Newspaper Publishing plc [1988] Ch 333, 375 and 380). That they have that effect on third parties is one of the main reasons that claimants apply for non-disclosure or privacy injunctions. But the court is required by HRA s.6 not to act in a manner incompatible with the Convention rights. It follows that in cases in which relief granted may affect the exercise of the Convention right of freedom of expression, the court cannot give the same consideration to the autonomy of the parties to the action as it commonly gives to the autonomy of the parties to litigation which does not have the same effect on the Convention rights of third parties.

The Practice Guidance on Interim Non-Disclosure Orders issued by the Master of the Rolls in August 2011 addressed this point specifically:

"Active Case Management

37.

Interim non-disclosure orders, as they restrict the exercise of the Article 10 Convention right and, whether or not they contain any derogation from the principle of open justice, require the court to take particular care to provide active case management. …

41.

Where an interim non-disclosure order, whether or not it contains derogations from open justice, is made, and return dates are adjourned for valid reasons on one or more occasions, or it is apparent, for whatever reason, that a trial is unlikely to take place between the parties to proceedings, the court should either dismiss the substantive action, proceed to summary judgment, enter judgment by consent,…"

Although non-parties are always entitled to apply to the court for a variation or the discharge of an injunction that affects them, the court remains under the obligation under HRA s.6 not to act in a way which is incompatible with the Convention. Any interference with the rights of non-parties under Art 10 (freedom of expression) must be no more than is necessary and proportionate for one of the purposes stated in Art 10(2). If claimants complied with their obligations under the CPR to progress actions to trial (if they were not settled by agreement), or if defendants applied to strike out those claims which claimants did not prosecute in accordance with the CPR, then the making of interim non-disclosure orders on a return date to run until trial or further order would be likely to be compatible with Art 10. That is what is assumed in the Model Order which is to be found in the Guidance of the Master of the Rolls issued in August 2011.

However, claimants who have obtained an interim non-disclosure order may hope not to have to bring the caseto trial, but to obtain (if they can) all the relief they seek on an interim basis. The burden that a claimant has to discharge on an interim application under HRA s.12(3) (“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”) is lower than the burden that a claimant has to discharge at trial.

The fact that the court has held that an interference with the rights of non-parties may be justified on the lower standard of proof for a limited period until a trial does not lead to the conclusion that a similar interference can be justified for an unlimited period where no trial is in prospect. That is why, where both parties permit an interim non-disclosure order to run indefinitely without there being any prospect of a trial, then the court must intervene of its own motion, as has happened in this case.

To prevent a recurrence of that, in the recent case of EWQ v GFD [2012] EWHC 1907 (QB) (12 July 2012), the defendant offered an undertaking, but it was not expressed to be "until trial or further order". The order made in that case on 6 July 2012 required the parties to make an application to list a case management conference on a date not later than 31 October 2012. See EWQ v GFD para 6. There may be other measures that may be taken to protect the rights of non-parties when the parties are each willing to permit the indefinite continuation of an interim injunction which the court intended should last until a trial. But in each case when such injunctions are granted in the future, the parties should make appropriate provision in the draft order, and draw the point to the attention of the judge.