England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/02/2012

Mr Justice Tugendhat :

1. On 24 February I handed down my reasons for dismissing the Claimant's application for the continuation of a non-disclosure (privacy) injunction. I also gave the following directions:

i) "The claimant shall serve Particulars of Claim by 4pm on Tuesday 28 February 2012.

ii) The defence shall be served by 12 March 2012.

iii) The claimant shall serve any replies by 28 March 2012.

iv) There shall be disclosure by list by 4 April 2012.

v) Witness statements shall be served by 18 April.

vi) No extension of these times may be made without the permission of the court.

vii) The matter to be listed for trial with a time estimate of 3 days on 2 May or as soon as possible the state of the list permits."

2. The time for service of the Particulars of Claim would have expired in accordance with the rules on Monday 27 February. The parties informed me that on 23 February the Master had granted an extension of time to 9 March by consent. In asking for that extension the parties must have overlooked the decisions of this court and of the Court of Appeal in Caterpillar Logistics Services (UK) Ltd v de Crean [2012] EWCA Civ 156 (21 February 2012) paras [71]-[73]; [2011] EWHC 3154 (QB) (02 December 2011) paras [58]-[61]. That the claimant should serve his statement of case promptly following an application for an interim injunction is not a new requirement: Hytrac Conveyors Ltd. v Conveyors International Ltd [1983] 1 W.L.R. 44, 47 and R.H.M. Foods Ltd. v. Bovril Ltd. [1982] 1 W.L.R. 661, 665.
3. Non-disclosure orders affect the right of freedom of expression (Art 10) not only of the defendant, but also of others who may wish to publish or receive information. That they have that effect on third parties is one of the main reasons that claimants apply for them. 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 that of the parties to litigation which does not have the same effect on the Convention rights of third parties.
4. Parties must have in mind the Practice Guidance on Interim Non-Disclosure Orders issued by the Master of the Rolls in August 2011, which included the following:

"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,…"

5. It might be thought that where the defendant is a media organisation it would give priority to freedom of expression, and so require that a claimant progress a claim to trial as expeditiously as possible with a view to vindicating its rights if it can. But experience has shown that media defendants rarely do that in privacy cases. That may be on account of the high costs of litigation, or it may be for other reasons. But the result is that the court must do it.
6. Mr Price asked for an extension of time, in order that costs should not be unnecessarily incurred. The prompt service of Particulars of Claim should not involve any additional costs to a claimant, and should in fact tend to save costs, for reasons discussed in the cases cited above.
7. The court is sympathetic to any proposal to save costs. But even if there were to be a possible saving of costs in the present case, for the reasons given above, it is necessary that the costs of proceeding to trial should be incurred, and that the trial, or any settlement should be reached promptly, in order that the interference with the Art 10 rights of third parties should be no more than is necessary and proportionate.