Spelman v Express Newspapers

On Saturday, 11 February 2012 I granted an injunction to restrain publication of private information, and other related orders. This short judgment sets out my reasons for making those orders.

I have prepared a redacted form of this judgment, having had regard to the submissions made to me in writing on Sunday, 12 February 2012.

The information the subject of the order is identified in the order in Confidential Schedule 2 to the order, namely:

“Any information or purported information concerning:

…”

The matter came before me as an application for an interim non-disclosure order to prevent the publication of information which is said to be in breach of the claimant’s right to privacy, under article 8 of the European Convention on Human Rights, and/or duties of confidence owed to him.

The application was made on behalf of the claimant by his litigation friends, who are his parents. It was supported by the witness statement of Ms Julie Bond, a solicitor, dated 10 February 2012.

I have heard this as an urgent application at a private hearing on 11 February 2012.

At the hearing both parties were represented by counsel: the claimant by Mr Jacob Dean, the defendant by Ms Christina Michalos.

As to the holding of a private hearing being the appropriate manner in which to hear and deal with the application, there was no dispute between the parties. I was satisfied that a private hearing was both appropriate and necessary.

A note of the hearing was made by the applicant’s solicitor.

The applicant is a young man, now aged 17.

The respondent intended to publish, in the “Daily Star Sunday” newspaper on 12 February 2012, a story referring to the facts I have mentioned.

I have had the benefit of careful and helpful submissions – both written and oral – on either side.

In approaching my decision, I had regard to the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders.

I have had regard to relevant jurisprudence, and, in particular, the decision of the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the decision of the Court of Appeal in Murray v Express Newspapers plc [2009] Ch 481, and the decision of Sharp J in DFT v TFD [2010] EWHC 2335, as well as other authorities.

I do not seek to include, in this short judgment, more than a bare summary of the submissions made to me.

In the first place, I believe there is force in Mr Dean’s submission that the information to which the defendant’s intended story relates attracts a reasonable expectation of privacy such as to engage the claimant’s rights under Article 8 of the European Convention on Human Rights.

This is, I accept, a case in which sensitive personal information is involved. I bear in mind, as Mr Dean submitted, that this is the case of a minor, facing the prospect of considerable press scrutiny in a tabloid newspaper.

There is an additional aspect to this story in that the claimant is the son of a Cabinet minister. Thus there is a political dimension which cannot be ignored.

In reaching these conclusions, I have had regard to what Sharp J said in DFT, at paragraphs 13 to 19 of her judgment.

I bear in mind what was said in paragraph 36 of the Court of Appeal’s judgment in Murray concerning the issue of the reasonable expectation of privacy: that it is relevant to consider the circumstances and purposes by which the information came into the hands of the publisher. Here it seems the information concerned came into the hands of the defendant through a leak. It is not clear how that leak occurred, or who was responsible for it.

In satisfying myself that there is in this case a reasonable expectation of privacy in this case, I have taken into account the submissions of Ms Michalos, who has argued that this is really a defamation action in disguise, and that an injunction should be refused as being contrary to the rule in Bonnard v Perryman [1891] 2 Ch 269. That argument I do not accept.

I turn, therefore, to the balancing exercise which I must conduct.

I take into account the relevant jurisprudence, and, in particular, what was said by Lord Steyn in Re S (a child) [2005] 1 AC 593 at [17]:

“First, neither article [8 nor article 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

In the light of the submissions made to me and the evidence before me, I concluded that the defendant’s publication of its story at this stage would not of itself advance the public interest claimed for it to a material degree. The context here is that I see a public interest which largely, if not wholly, subsumes the public interest considerations to which Ms Michalos referred. The public interest will, it seems to me, be protected and advanced in any event.

Ms Michalos submitted that both the urgency of the story itself and the need for newspapers to print exclusive stories in the highly challenging commercial environment in which they now operate are relevant. If the story could not be published on 12 February 2012, the court should accept that the value in it would diminish to vanishing point. Ms Michalos argued that it is in the public interest to promote debate of the matters to which the story relates. But, as I have already said, these matters are largely if not wholly being addressed in any event. If that turns out not to be so there may be – and I say only that there may be – a legitimate story there; I do not prejudge that.

Mr Dean was, in my judgment, right to submit that the publication of this story is likely to have a very significant harmful effect on the claimant. And I acknowledge that in many, if not all, cases of this nature the applicant for an injunction will contend that the story, if published, would have a harmful effect on his or her emotional well-being.

In my judgment, however, applying the test in Cream Holdings, that is to say the “more likely than not” test, the claimant crosses the necessary threshold.

I reached that conclusion taking into account the relevant jurisprudence on Article 10 and countervailing Convention rights. I did not find it necessary to approach the issue on the basis of a lesser degree of likelihood. I was satisfied that the balance fell in favour of the claimant.

Ms Michalos candidly acknowledged, as she had to, that the defendant regarded the fact that the claimant is the son of a Cabinet minister as a legitimate and relevant aspect of its story. I make it clear that I do not criticize the defendant for taking that view. But equally, I must stress, it is not the overriding factor in the balance I struck.

Having taken account of all of the factors referred to in argument on either side, I accepted Mr Dean’s submission that the injunction sought by the claimant ought to be granted on the “more likely than not” test in Cream Holdings.

Having decided to grant relief, I invited and heard submissions from counsel as to the form of the order.

I deal now with the application made on behalf of the claimant for anonymity. What was sought by Mr Dean was that the parties should be anonymized so it would be impossible to identify the claimant from the name of the proceedings. Mr Dean relied in particular on the test referred to in the judgment of Lord Rodger in Secretary of State for the Home Department v AP (No.2) [2010] UKSC at [7] (see the judgment of Sharp J in DFT at paragraph 27):

“[The] Court must ask itself “whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family's right to respect for their private and family life.””

It was submitted that this is a case in which the considerations of open justice, which Mr Dean acknowledged are fundamental, need to be taken together with the fact that the claimant’s mother is a Cabinet minister, and that he is a minor. These, said Mr Dean, are plainly considerations that go to the claimant’s and his parents’ private and family life, and dictate or compel anonymity. Mr Dean submitted, in effect, that the effect of the restriction in the injunction would be largely if not wholly negated by the court deciding not to anonymize the proceedings.

That argument was firmly resisted by the defendant. Ms Michalos rightly pointed to the now clearly-established principles in paragraphs 9 to 15 of the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders. These begin with the basic proposition that open justice is a fundamental principle. Ms Michalos referred, in particular, to the following parts of the Practice Guidance: paragraph 11, which states that the grant of derogations is not a matter of discretion but of obligation; the advice in paragraph 12 that there is no general exception to open justice where privacy or confidentiality is in issue; the principle, stated in paragraph 13, that the burden of establishing any derogation from the general principle lies on the person seeking it; the principle, stated in paragraph 14, that open justice requires any restrictions to be the least that can be imposed consistent with the protection to which the party relying on his or her rights under Article 8 of the Convention is entitled.

The proper approach, it was submitted, is set out in the judgment of Lord Neuberger of Abbotsbury MR in JIH v News Group Newspapers [2011] EWCA Civ 42, at paragraph 19 and following paragraphs, and in particular in paragraph 21. I need not recite the principles set out there, beyond noting that:

“(1)

The general rule is that the names of the parties to the actions are included in orders and judgments of the court.

(2)

There is no general exception for cases where private matters are in issue.

. . .

(5)

Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question 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.

(6)

On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

…”.

I saw force in Ms Michalos’ submissions. It seemed to me, in the light of the relevant jurisprudence and the Master of the Rolls’ Practice Guidance,that this is not a case in which the court should take the exceptional course of anonymizing the proceedings. Sufficient protection is afforded by the parties being named in the normal way in the proceedings – so that the public will be able to identify the claimant as the person who has sought particular injunctive relief against the defendant – but ensuring that the subject-matter of the application and the precise nature of the relief granted will not be in the public domain. This seemed to me properly to reflect the course which the court ought now normally to take in situations such as these.

I heard further submissions on the practical consequences of that conclusion for the order I had decided to make.

I refused the claimant’s application for permission to appeal the decision on anonymity because I saw no real prospect of success for such an appeal.

I also refused the claimant’s application for the parties to be anonymized while the claimant renewed his application for permission to appeal to the Court of Appeal. I did so because I concluded that the balance lay in favour of not preventing the defendant from publishing the fact that the claimant had sought and obtained an injunction against the defendant. Ms Michalos was, I believe, right in her submission that the factors to be balanced are different when the court is considering whether anonymity should be granted in these circumstances. I was particularly impressed by the submission that the defendant should be free to publish immediately that which I had held it may lawfully publish. Accordingly, having held that the proposed appeal itself was not likely to prove well founded, I refused to anonymize the parties pending a renewal of the application for permission to appeal.

My order sets a return date of Thursday, 16 February 2012.

In granting relief I accepted undertakings given on behalf of the claimant. These undertakings are recorded in Schedule B to the order. They were as follows:

“(1)

If the Court later finds that this Order has caused loss to the Defendant, and decides that the Defendant should be compensated for that loss, the Claimant’s Litigation Friends will comply with any order the Court may make.

(2)

If the Court later finds that this Order has caused loss to any person or company (other than the Defendant) to whom the Claimant has given notice of this Order, and decides that such person should be compensated for that loss, the Claimant’s Litigation Friends will comply with any Order the Court may make.

(3)

By 4.30 pm on Monday 13 February 2012 the Claimant’s Litigation Friends will issue a Claim Form and an Application Notice claiming the appropriate relief and serve the Claim Form and the Application Notice on the Defendant as soon as practicable thereafter, and cause a witness statement to be made and filed confirming the substance of what was said to the Court by the Claimant’s counsel concerning the Claimant’s response … .

(4)

On the return date the Claimant’s Litigation Friends will inform the Court of the identity of all third parties that have been notified of this Order. The Claimant’s Litigation Friends will use all reasonable endeavours to keep such third parties informed of the progress of the action insofar as it may affect them, including, but not limited to, advance notice of any applications, the outcome of which may affect the status of the Order.

(5)

If this Order ceases to have effect or is varied, the Claimant’s Litigation Friends will immediately take all reasonable steps to inform in writing anyone to whom he has given notice of this Order, or whom he has reasonable grounds for supposing may act upon this Order, that it has ceased to have effect in this form”.