PJS v News Group Newspapers Ltd

Today I have made a final order in this action, by consent. The application was made “on the papers”, asking the court to make an order without a hearing. The parties have not only agreed as to the terms of the order to be sought but also that the court should dispose of the application without a hearing; so the court has power to deal with the matter in that way: CPR 23.8(a) and (b). The court is not bound to act in that way, just because the parties wish it. But the purpose of these provisions is to assist the efficient dispatch of the court’s business, when nothing is in dispute between the parties. I agree with the parties that this is a just and efficient way to dispose of the present application. There is no need for a hearing.

But I am giving this public judgment, for three reasons. The first is to ensure that the principle of open justice is respected, and that the derogations from open justice that I am granting are publicly explained. As explained in the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders[2012] 1 WLR 1003:

“9.

Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders, are public: see Article 6(1) of the Convention, CPR 39.2 and Scott v Scott [1913] AC 417.

One exception to that general rule is provided for by CPR 23.8. Dealing with a case “on the papers” is not incompatible with the open justice principle. It is an incursion. The extent to which such an incursion should be allowed must depend on the circumstances of the particular case. The Guidance goes on:

“16.

Interim non-disclosure orders which contain derogations from the principle of open justice cannot be granted by consent of the parties. Such orders affect the Article 10 Convention rights of the public at large. Parties cannot waive or give up the rights of the public. The court’s approach is set out in [JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 [2011] 1 WLR 1645]at [21].”

The same reasoning applies to final orders. Dealing with this application on the papers but with a public order and a (short) public judgment strikes an appropriate balance between the competing rights.

Secondly, this case has previously attracted a good deal of publicity, and has been the subject of a number of earlier public judgments. This makes it particularly appropriate for its conclusion to be marked by a short public judgment recording how the case has come to an end, by agreement.

Thirdly, I am aware that a number of third parties have been served with or notified of the injunction. Although the claimant has an obligation to ensure that such persons are kept informed of progress, and I do not doubt that obligation will be performed, it is right for the court to make the position public itself through a judgment and not just an order.

The claim is in breach of confidence and misuse of private information. It concerns information about the claimant’s alleged extramarital sexual encounters. Beyond this, the facts and issues need no repetition. They can be found set out in the most recent public judgment, given by the Supreme Court on 19 May 2016: [2016] UKSC 26 [2016] AC 1081. By that judgment, the Supreme Court allowed an appeal against a decision of the Court of Appeal on 18 April 2016 to discharge an interim injunction which the Court of Appeal had itself imposed on 22 January 2016.

In its first decision the Court of Appeal, reversing Cranston J, found that the information which the claimant sought to protect was private and confidential, and that there was no public interest justifying its disclosure: [2016] EWCA Civ 100 [2016] EMLR 17. In its second decision, [2016] EWCA Civ 393, the Court of Appeal adhered to those conclusions but accepted the defendant’s argument that the information at issue had by then become public, or publicly accessible, to such an extent that the claimant was unlikely to succeed in obtaining an injunction at trial. The Supreme Court, by a majority of 4:1, disagreed. It found that the information was private, there was no public interest in its disclosure, and that whilst secrecy and confidentiality may have been compromised by publicity the trial court was not likely to find that the claimant’s right to privacy was defeated by the fact that the information was already publicly known or accessible to some extent.

This is nothing but a broad summary of the courts’ conclusions so far. For the detailed reasoning, reference must be made to the judgments.

A witness statement is before the Court explaining that since the decision of the Supreme Court the parties have agreed terms of settlement, and that both seek the Court’s approval of a form of order which they have agreed between themselves.

That order is in “Tomlin” form, which is to say that it provides for a stay of all further proceedings in the action on the terms set out in the order, except for the purpose of carrying such terms into effect, for which purpose there is liberty to apply to the Court. The main operative provisions of the order are (1) an order that the defendant pay a specified sum in full and final settlement of the claimant’s claim for damages and costs of and occasioned by the action; (2) undertakings to the court given by the defendant, not to use, disclose or publish certain information and to remove and not republish certain existing articles. The sum to be paid is set out in a confidential schedule, as is much of the information which the defendant undertakes not to use, disclose or publish. But the undertakings also extend, on the face of the order, to not publishing any information which identifies or is liable to identify the claimant PJS as a party to this action, including identifying the claimant’s partner or certain other parties, who are also given pseudonyms.

There are two allied provisions. One is a restriction on access to documents on the court file: no non-party shall be provided with a copy of the confidential schedules to the order, the statements of case, or confidential exhibits without further order, which is only to be made on notice. This is a repetition of an order made as part of the Court of Appeal’s interim relief of 22 January 2016, enlarged to take in the schedules to the present order. The other provision is for “anonymity”: that there be substituted for all purposes in these proceedings the name “PJS” for the claimant, “YMA” for the claimant’s partner, and other ciphers for three “persons with whom the claimant has had a relationship and/or sexual encounter that are the subject of these proceedings.” This anonymity provision also repeats but extends an order made by the Court of Appeal. The extension is to take in the three additional persons.

I accept the undertakings offered by the defendant, which are clear and plainly given on advice. I see no reason not to make an order for payment of the agreed sum. There is no reason not to allow the parties to keep the figure confidential.

I am satisfied that the other restrictions on access to the court file are necessary to ensure the effective protection of the claimant’s private life rights. Third parties who have been served with or notified of the interim order have no need to gain access to the court file, as the claimant has undertaken to inform them when that order ceases to have effect. If the claimant wishes any third party to know of the specific terms of the undertakings now being given to and accepted by the court the claimant will have to disclose the content of the confidential schedule. But that is a matter for the claimant.

Similarly, the anonymity provisions for the claimant and the claimant’s partner remain appropriate. The information in question is publicly known, in its outline at least, via the first Court of Appeal judgment and the judgment of the Supreme Court. To link the claimant by name to that information would defeat the purpose of the injunction and, now, the undertakings: cf. the Supreme Court’s judgment at [63]. Identification of the claimant’s partner would tend to identify the claimant.

Anonymisation of the three third parties designated (with some lack of originality) as AB, CD, and EF, is not sought on their own behalf, but for the protection of the claimant’s identity. I accept that this incursion into freedom of expression is justified for that reason. I add that in my judgment, on the information before the court, the rights under Article 8 of AB, CD and EF would prevail over the right to freedom of expression, so that this order is also justified ounder s 6 of the Human Rights Act 1998, whether or not those individuals also fall within the terms of CPR 39.2(4).