Anonymity refused in privacy case – despite agreement of parties

8 November 2010 by

Updated | On 5 November 2010  judgment was handed down in JIH v News Group Newspapers ([2010] EWHC 2818 (QB)) – Read judgment.

Update, 18 November 2010: The case has returned to the High Court after the Daily Telegraph reported a key detail relating to JIH’s identity. This was contrary – said JIH – to the court order. Mr Justice Tugendhat refused the application by JIH that his/her identity not be disclosed. However, he did sound a warning that “editors and publishers have regard to the “duties and responsibilities” referred to in Art 10(2) itself. These duties and responsibilities include a requirement that they comply with orders of the court, and that they take all necessary steps to ensure that journalists understand this necessity.” If they ignore that warning, warned the judge, they may be found in contempt of court.

This post by Mark Thomson first appeared on the media law blog Inforrm, and is reproduced with permission and thanks

This was another privacy injunction case about anonymity.  Following Mr Justice Tugendhat’s recent decision in Gray v UVW ([2010] EWHC 2367 (QB)), he again decided that, despite the parties having agreed a consent order including anonymity, the interests of the public required that the claimant be named.  He also made a “DFT Order” limiting publicity about the case to information in his public judgment.  The name of claimant has, however, not yet been made public because the judge ordered that his identity should not be disclosed pending any application to appeal against his ruling, which had to be lodged by 19 November 2010.

The claimant, known as “JIH”, had obtained an interim  injunction on 13 August  2010 at private hearing before Mr Justice Nicol (ending at 9.18pm) restraining News Group Newspapers from publishing certain private information. Mr Justice Nicol  is the co-author of  one of the leading textbooks on the area, Robertson and Nicol on Media Law and an acknowledged expert in this area.  The injunction  granted JIH anonymity on the basis that publicity revealing his identity was likely to damage his interests or frustrate the administration of justice.  Mr Justice Nicol indicated that this was common practice for privacy injunctions, as is indeed the case.
 JIH and the defendant in the action, News Group Newspapers, agreed various adjournments of the return date and eventually agreed a consent order apparently resolving all matters in the dispute (as had been the case in Gray). The consent order included provision for an injunction and anonymity.  This was lodged with the Court for approval on paper.
However Mr Justice Tugendhat refused to make the agreed consent order without a hearing.  The matter was listed before him for a hearing, as it had been in the case of Gray a few days earlier. The claimant filed evidence in support of the provision in the consent order and the derogations that had been agreed between the parties. The judge heard submissions from leading counsel for both parties and reserved judgment. He then submitted his draft judgment to all the media organisations  who had been served with the interim injunction.  They made submissions on the draft and the judge then produced a final judgment which was handed down yesterday 5 November 2010.
Decision
The judge repeated much of what he had said the Gray case about open justice and derogations and anonymity. Regarding the case in point he said he had no doubt that the private life considerations of Article 8 were engaged in the case, both on the subject matter of the action, and, to a much lesser extent, as to JIH’s identity.
He recorded and accepted the submission of Counsel for the Claimant that

… [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” (emphasis added). [8]

In relation to the case itself he said:

Much of the publicity about this case has been in the form of guesses, or invitations to the public to guess, the identity of the claimant. There have also been similar publications and speculations on the internet. Such publications and speculations are not uncommon after the court grants an injunction on the application of an unnamed claimant…. [30]

The proceedings are likely to attract publicity, and if the claimant is identified that will result in some interference with the private life of himself and his family. There is no suggestion of any public interest or other possible justification in disclosure of the information which is the subject matter of the action.[62]

He attached little weight to the fact that the parties had agreed to the anonymity provision in the consent order. The central part of the judgment explaining the refusal to continue anonymity is as follows:

It is implicit in the form of the consent order, and I accept, that in the present case it would not be possible to make an order or give a judgment which disclosed any information about the subject matter of the action which did not thereby make it likely that the Claimant would be identified. To identify both the subject matter and the Claimant would defeat the purpose of the proceedings. Accordingly, the only practical question open to the Court is whether to withhold the identity of the Claimant, in addition to withholding all information about the subject matter of the action. In this case the alternatives canvassed by Mr Tomlinson (para 8 above) are theoretical not real. The only real choice is to allow the public to know the Claimant’s identity or to allow them to know nothing at all about the action. [ 63]

I remind myself that where the proposed justification for anonymity is that identification would prevent the attainment of justice, the test that the Claimant has to satisfy is that of strict necessity (paras 33 and 34 above). The Claimant has not shown to that high standard that the object of achieving justice in this case would be rendered doubtful if the anonymity order were not made. It is not possible to do perfect justice to all parties and to the public at the same time. In my judgment the proposed order will be effective to achieve justice, and will give all necessary protection the private lives of the Claimant and any others concerned, if it identifies the Claimant, but gives information about the subject matter only in the Confidential Schedule. It will be served on newspaper publishers (as the earlier Orders have been). They will know what they can publish in the future and what they cannot publish. Nothing will stop people from speculating in private. And the court cannot stop much of the speculation that takes place on the internet. But an Order will limit the extent to which the private lives of the Claimant and others are interfered with notwithstanding that it identifies the Claimant. So the general principle of open justice provides, in this case, sufficient general, public interest in publishing a report of proceedings which identifies the Claimant to justify any resulting curtailment of the rights of the Claimant and his family to respect for their private and family life [64].

As a result, he declined to make an order requiring that the identity of the Claimant should not be disclosed.  He indicated that the name of the Claimant would be included in the order which he made.  However, in order not to render any appeal nugatory he made an interim order for anonymity pending an application by the Claimant for permission to appeal the order.
It is clear from the judgment that extensive submissions were made by the media in relation to issues of general practice.  Some of their complaints are set out in the judgment ([72]).  However, the judge pointed out that no application had been made to vary or discharge the original order and that these points had not been the subject of argument.  He did not, therefore, deal with the question as to whether third parties should be given notice of a privacy injunction application and made an order which contained a provision varying the rule in paragraph 9 of the Practice Direction to Part 25.
The terms of the order which he made are set out in paragraphs 74 and 75 of his judgment and provide an interesting example of the substantive provisions of a modern privacy order – including the “DFT Order” at paragraph 1(a).

Comment

The crucial aspect of the judge’s reasoning (in [63] of the judgment) is difficult to follow.  It is hard to see why, given the inevitable interference with the claimant’s private life, it was impossible to give an anonymised judgment giving some detail about the facts of the case – as was done in the privacy recent judgments in AMM and DFT. In terms of informing the public about what has happened in the case and why the order has been made these anonymised judgments provide more information to the public than that provided in JIH itself or in Gray.  In the two earlier cases the public knows that there was a threat to public information about a sexual relationship which resulted in an injunction being granted.  In the two cases in which the names of the claimants are given the public knows nothing of the underlying facts and so, has no idea about how the court is balancing privacy and public interest on a practical level.

The JIH decision does however, make it crystal clear to the profession that “anonymity issues” – along with issues concerning other “derogations from open justice” need to be clearly and specifically addressed when privacy injunctions are applied for.  The witness statement in support should deal with each derogation specifically explaining why it is necessary and what evidence there is to support it.  Such statements can then be used to support the making of a consent order.  Mr Justice Tugendhat made it clear that these will not be made “on the nod” but can be made on paper if there is proper evidential support.
The short message of this case is to reinforce the point that Mr Justice Tugendhat made in Terry v Persons Unknown – the court will, in each privacy case, need to be properly satisfied that the interests of the public in open justice have been properly taken into account in relation to the orders sought and made, whether or not these are by consent.

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