We have already dealt with the appointment of Mr Justice Tugendhat as the judge in charge of the jury list. It is common for members of the senior judiciary to take up appointments of this kind – their rotation being part of the ordinary business of judicial organisation. Such appointments do not, ordinarily, attract any kind of media comment. For example, on 9 August 2010, Mr Justice Akenhead replaced Mr Justice Ramsey as the Judge in charge of the Technology and Construction Court, on 6 July 2010 Mrs Justice Gloster replaced Mr Justice Gross as Judge in charge of the Commercial Court. These appointments – and many similar ones – were not mentioned in the national or non-legal press.
The appointment of Mr Justice Tugendhat was, however, a different matter. It attracted articles in the Daily Telegraph, the Daily Mail and the Guardian amongst others. It even had the ultimate accolade of serious media coverage: an item being broadcast on the “Today” programme. Why has this mundane event of judicial administration attracted such intensive media coverage? It is, apparently, because in the words of the “Daily Mail”, “Judge behind ‘backdoor privacy law’ and footballer super-injunctions to step down”. In other words, the story is that
“Mr Justice Eady, 67, whose landmark rulings have protected the rich and famous from publicity about their sexual adventures, will quit his role at the end of the month.
He will be replaced by another senior judge who is regarded as less sympathetic to the wish of sports stars and celebrities to keep their infidelities private”.
In other words, the media are, once again, using an unremarkable item of news as a vehicle for the repetition of their own self serving take on English media law.
There are two inaccuracies in the “Daily Mail” account. First, there is the oft-repeated claim that Mr Justice Eady is responsible for creating privacy law “by the back door”. We pointed out in a post in April 2010 that the new law of privacy has been developed through five cases in the Court of Appeal and the House of Lords: Douglas v Hello! ( QB 967) Campbell v MGN ( 2 AC 457), McKennitt v Ash ( QB 73), Lord Browne of Madingley v Associated Newspapers ( 1 QB 103), Murray v Express Newspapers ( Ch 481) – and that Mr Justice Eady was not party to a single one of these decisions (although appeals against his rulings were dismissed in McKennitt and Lord Browne).
Second, there is the suggestion – largely based on one judgment (Terry (formerly LNS) v Persons Unknown ( EWHC 119 (QB)) – that Mr Justice Tugendhat is going to be more “media friendly” as the judge in charge of the jury list. The law relating to privacy and the balancing of Articles 8 and 10 is now well established and is regularly applied by different first instance judges – including both Mr Justice Eady and Mr Justice Tugendhat. The new appointment is not, to use Roy Greenslade’s words, going to give editors “greater licence to publish”
Writing in the “New Statesman“, David Allen Green has a different take on the story. He refers to Sir David Eady’s contribution to the development of privacy law as “commendable” but welcomes the news of his retirement as judge in charge of the list because it “de-personalises a complex problem“. Mr Justice Eady has, he says, “given almost as many heartening liberal defamation judgments as dreadfully illiberal judgments. The problem is, he suggests, not the judge but the “dysfunctional law of libel”.
We do not entirely agree with this description of libel law – and we are sceptical about the description of libel judgments with which one disagrees as “illiberal” and vice versa. We do, however, see the sense in de-personalising the issues. Disappointed media organisations have, over the years, had a tendency to blame judges for their own failings. The suggestion that Sir David Eady was, somehow responsible for twisting the law of libel against the media does not stand up to serious scrutiny. Perhaps the “libel reform debate” can be conducted in a slightly more measured tone now that the man perceived by some to be “villain of the piece” is no longer in charge.