England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE TOULSON)

		Royal Courts of Justice Strand London WC2A 2LL Friday 19 January 2001

1. LORD JUSTICE WALLER: Some four years ago in the context of an action brought by the Attorney General against The Times Newspapers, The Sunday Times gave an undertaking that certain material would not be published, subject to a proviso which related to them being released from that undertaking if publication of the material had previously been published in The Times or other national newspaper. Clearly that proviso, and it must have been reasonably obvious to those giving it, did not cover a situation in which there was a publication in any other way.
2. In early 1999 it was appreciated that the proviso to that undertaking was narrower than The Times desired, and in February 1999 a variation was applied for in broader terms. The Attorney was not happy to allow the proviso to be varied in the terms sought by The Times but, ultimately, a proviso was sought in terms which appear from an application to the court for a variation dated 11 January 2001.
3. The background to the making of the application was that it had by this stage become known of the possibility that a book would be published in Russia. It was in the context of that book being published that The Times moved for the variation to the proviso. The Times desired to have that application heard on short notice (on the Friday), but that was resisted by the Attorney. Ultimately, that application only came on today before the judge in chambers.
4. The basis of the urgency of that application was evidence from The Times to the effect that they thought that the book was going to be published in Russia on Friday 19 January (today). It was in that context they wanted the proviso widened. The Attorney's evidence before the judge was that that date was not accurate and that if there was to be publication of the book it was not going to be until this next Monday. The Times also had a photograph which seemed to indicate that this book was in a shop window as of 18 January (yesterday).
5. So far as the timescale is concerned, my understanding is that the business day in Russia has long since passed and there is no evidence from The Times to indicate that their original evidence has been shown to be true, ie that this book has in fact been published and brought into the public domain. The position before us today is as follows. The judge acceded to The Times' application to broaden the proviso. The Attorney sought, and was granted, permission to appeal.
6. The Attorney applied for a stay pending that appeal. It was in that context that argument arose before the judge, and has arisen before us, as to the urgency of this matter coming on in the Court of Appeal. Mr Tugendhat for The Times obtained permission from the judge to appeal the stay application.
7. The matter only came before this court at 5 pm. The first question was whether this court should sit and hear the full appeal now. That is the only matter upon which counsel have addressed us so far.
8. The application clearly raises matters of some importance. It is clearly not a matter that can be dealt with in a short period of time; I would have thought that something in the region of two hours is going to be necessary to hear it (which possibly does not allow for judgment). Therefore, the question is whether the urgency is such that the court should sit now and hear it and try to deal with the point, or whether the appeal should be heard at a later date. The matter is clearly of some urgency and there can be no doubt that if it is to be heard at some later date it must be sooner rather than later; it must be next week.
9. The basis which, in effect, is put forward by Mr Tugendhat, on behalf of The Times, for saying that this should be heard this evening is not that it can be established that this book is now in the public domain by virtue of the publication in Russia, but on the basis that at some stage during tomorrow (Saturday) there is a possibility that this book may come into the public domain. As I understand it, that is a submission that the book may be sold by the bookshop publicly in Russia or may get on to the internet.
10. The position, however, is that that is a totally speculative position so far as The Times is concerned. As I have already indicated, they have not succeeded in being able to provide this court with evidence of what has actually happened during today, which was the day on which on their original evidence this book was to be published.
11. It seems to me that, albeit one can see now that this application is urgent, if one has regard to the fact that the undertaking was given as long ago as 1996, it has taken many years to apply to be relieved from the narrow nature of the proviso which, as I have indicated, was always known to be narrow; that it took a great deal of time last year to attempt to negotiate a broadening of the proviso; that it was known that the book was likely to be published in Russia at the beginning of this month; and that this is a difficult case and one of some importance, it is quite wrong that this court should be put in the position of having to deal with this case simply on the speculation that possibly during tomorrow there may be a publication of this book either by sale in Russia or conceivably on the internet.
12. For my part, this court should refuse to hear the full appeal tonight. The stay should continue until the matter can be heard. It should be heard as a matter of urgency next week when the court can give proper attention to what, as I have indicated, is a difficult case.
13. LORD JUSTICE ROBERT WALKER: I agree. The evidence as to the urgency of the appeal seems to me fairly tenuous and to have some obvious gaps. That evidence has, conspicuously, not been supplemented, despite an invitation from the court, by any statement made by counsel on instructions.
14. The appeal for which the judge gave permission is no doubt of some urgency, but it raises issues of some general importance which ought to be argued properly with the benefit of a legible copy of the judge's judgment and with the benefit of written skeleton arguments. It seems to me that considered judgment is more important in this case than instant judgment.
15. LORD JUSTICE MANCE: I agree with both the judgments that have been delivered. It is not asserted that the material is already in the public domain. Mr Tugendhat said that if he could assert this he would now be applying for a discharge not simply to vary. He seeks a variation in an oral hearing today against a possibility, speculative, as my Lords have said, that the material may shortly become in the public domain, whether by publication of a widespread nature in some country abroad or on the internet. The Times want to be free either to publish exclusively, or at least to match anything anyone else may achieve.
16. To my mind the evidence is far from showing that any publication of any widespread nature will occur before Monday. It is unsatisfactory, as my Lords have said. It is also far from clear that The Times or any other paper could use material in an article on Sunday, even if it were to come into the public domain tomorrow. Mr Tugendhat had no instructions as to whether The Sunday Times have a copy of the book and are preparing for publication already, but that could not assist them in respect of material which for present purposes must be viewed as confidential.
17. Against the background of (a) the length of time the undertaking is applied; (b) the length of time over which it has been known that the book was likely to be published somewhere; (c) the obvious narrowness of the proviso; and (d) the prior opportunity to apply to vary, it seems to me that justification for an urgent hearing
Order: Application dismissed. Costs to be costs in the appeal. No prosecution cross-undertaking in damages to be asked for or ordered as of today and there will not be a stay on any terms extended as asked for.