COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
The Hon Mr Justice Tugendhat
Claim No HQ10X3121
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
(Vice President of the Court of Appeal)
LADY JUSTICE SMITH
|- and -
|NEWS GROUP NEWSPAPERS LIMITED
Mr Richard Spearman QC (instructed by Farrer & Co) for News Group Newspaers Ltd
Ms Gillian Phillips made written representations on behalf of Guardian News & Media Ltd
Mr Marcus Partington made written representations on behalf of The Media Lawyers Association
Hearing date: 14th January 2011
Crown Copyright ©
The Master of the Rolls:
"This is an essentially case-sensitive subject. Plainly [the claimant] is entitled to expect that the court will adopt procedures which ensure that any ultimate vindication of his Article 8 case is not undermined by the way in which the court has processed the interim applications and the trial itself. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which [the claimant] is entitled."
An outline of the facts
The present application
Open justice and the need for restraint
(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.
(4) Accordingly, 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.
(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.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.
"Where the court has accepted that the publication of private information should be restrained, if the court is to avoid disclosing the information in question it must proceed in one of two alternative ways:
(1) If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised;
(2) If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified."
The reasoning of Tugendhat J in this case
Lord Justice Maurice Kay:
Lady Justice Smith: