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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PRIVACY INJUNCTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/11/2014

Mr Justice Stewart:

1. By Order dated 29 November 2014 publication of any information as to the subject matter of these proceedings or the identity of the Applicant shall be limited to that contained in this judgment.
2. On 29 November 2014 I granted an injunction to restrain publication of private information together with ancillary orders.
3. The Applicant is an individual and the Defendant is the publisher of the Sun on Sunday. The Applicant applied for an injunction to restrain publication of the information concerning a sexual relationship that the Applicant had in 2011. I granted the injunction, after a hearing on Saturday, 29 November 2014, for a short period to allow for the filing of further evidence. The Respondent was willing to give an undertaking not to publish the information concerning the Applicant for 7 days but was not prepared to give that undertaking to the court; also, though not refusing the Applicant's application for anonymity, the Respondent had not confirmed agreement to it. Directions have been given for a further hearing on 5 December 2014 or such date as the court can accommodate the hearing. The proceedings have been anonymised to protect the privacy interests and prevent the identification of the Applicant.
4. The court will decide at the next hearing whether and if so in what form any injunction should continue to restrain publication of the information.
5. It is apparent from the above that the Respondent had been notified of the application. I had regard to section 12 of the Human Rights Act (HRA), section 12(2) requires the court not to grant relief against a Respondent who is neither present nor represented unless the court is satisfied (in this case) "That the Applicant has taken all practicable steps to notify the Respondent". I am satisfied as to this requirement. The Respondent had been notified that the Applicant was going to seek an injunction on Friday, 28 November 2014. I was told that at that stage the Respondent did not make any suggestions. On Saturday the Respondent was served with the evidence and draft application and a Skeleton Argument by the Applicant. The Respondent was also served with the draft/Order that the Applicant was seeking. There followed a number of emails. The ones I have seen are recorded in the Order. They were between the Applicant's solicitors and the Respondent's solicitors. In short the Respondent offered first not to publish any article regarding the matters referred to in the Applicant's draft order for 7 days (email 13:52 and 17:05). There was also some agreement about the directions for the further hearing. The 17:05 email concluded:

"With no disrespect to the Court intended, I cannot see any reason for yet further costs and usage of Court time to be incurred today by us attending a telephone hearing, so any hearing should proceed on the basis neither I nor counsel will be participating. I trust my client's position is apparent from the above in any event. I hope proportionality will now prevail but should it not do so and your client insist on a hearing today, please ensure this email is placed before the Judge."

6. Subsections 12(3) and (4) HRA provide:

"(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, …(or to conduct connected with such material), to—

(a) the extent to which—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code."

7. I am satisfied that the Applicant is likely to establish that publication should not be allowed. This is of course on the information available to me. The Respondent first intended to publish the information in March 2013 but, after the Applicant indicated that an injunction would be sought, the Respondent agreed not to publish any material encompassing the matters without first providing 48 hours notice to the Applicant's solicitors of intended publication. This was subject to provisos that the matters published had already entered into the public domain i.e. publication emanating from within the UK such as a newspaper or similar internet production or where publication would be privileged, though this exception did not apply where the Respondent had either directly or indirectly put the information in the public domain itself. Further, during the email exchanges on Saturday, 29 November 2014, no substantive reason had been given justifying publication as being in the public interest. Three reasons which had been suggested in 2013 did not, on the face of them, appear particularly cogent. The information clearly engaged the Article 8 Rights of the Applicant and the family of the Applicant. I had to balance Articles 8 and 10 ECHR. Having regard to the principles in Von Hannover (No 2) [2010] EMLR 16, I concluded in the circumstances of the case that the balancing exercise was in favour of the Applicant's Article 8 Rights.
8. If the information was published and it proved later to have been published wrongfully then damages would not be an adequate remedy.
9. As far as is known, the material is not or is not about to become available to the public. The privacy code referred to in section 12(4)(b) is the IPSO Editors Code of Practice to which I have had regard, in particular clause 3 – Privacy and the section headed "The Public Interest".
10. I turn now to the rulings I made that the proceedings before me should be in private and should be anonymised. I had regard to the general rule under Article 6 ECHR and CPR 30.2(1). I carefully scrutinised the application and came to the conclusion that, at this stage, it is necessary for the hearing to have been in private and for the Applicant to be anonymised. Absent anonymity the Applicant would in my judgment be subject to intense speculation as to the nature of the private information to be injuncted. This speculation may well cause at least as great, if not greater, harm than the publication of the information itself and may well also lead to the injuncted information becoming public by one means or another.
11. I turn now to whether the injunction is necessary at all given the offers made by the Respondent in emails on Saturday, 29 November 2014. On two occasions (13:52 and 17:05) the Respondent's solicitors confirmed that their client undertook not to publish any article within 7 days. There was however no agreement to anonymity, which, for the reasons I have given, is justified in my judgment. The Respondents did not specifically object to anonymity; nor did they agree to it. That was the main reason why I considered that an injunction was necessary. There were however two other points. The first was that the applicant found out about the intended publication @3:37pm on Friday, 28 November 2014 and then as a result of his solicitors asking questions of the Respondent. This was not in accordance with the confirmation in March 2013 that 48 hours' notice of intended publication would be given by the Respondent. In the email of 29 November 2014 @17:05 the Respondents solicitors confirmed that they were instructed that the failure to give 48 hours notice of intended publication did not arise from any deliberate attempt by the Respondent not to comply and that steps had been taken to ensure that there was no prospect of the undertaking being offered today (29 November) not being complied with. Also, at one stage, in an email of 29 November 2014, 15:25 the Respondent's solicitor asked the Claimant's solicitor to withdraw the suggestion that the Respondent had acted in breach of a formal undertaking of any kind and said "Please advise me where below the word "undertaking" appears." This failure to abide by the previous confirmation and the 15:25 email caused the Applicant to have concerns.
12. Nevertheless, the main reason I have decided that an injunction is necessary is because of the need for anonymity. It also has the advantage of precision and clarity such that both parties know exactly where they stand.