In his judgment today in the case of  Bernard Gray v UVW ([2010] EWHC  2367  (QB)) Mr Justice Tugendhat has returned to the subject of anonymity in privacy actions.   The matter was heard on 15 October 2010, the return date of an injunction granted shortly before midnight on 13 October 2010, by Mr Justice Nicol.   It concerned a threatened publication by the defendant of private information relating to the claimant.  Mr Justice Nicol granted an anonymity order covering the identity of both the claimant and the defendant and an injunction restraining publication of private information.

At the hearing before Mr Justice Tugendhat on 15 October the parties agreed that the Defendant would give undertakings to the court not to publish private information and that all further proceedings should be stayed, except for the purposes of carrying into effect the judge’s order.  They had also agreed that anonymity provisions would continue for both Claimant and Defendant. The central issue on the return date was whether the anonymity order in favour of the claimant should be continued.  Mr Justice Tugendhat refused the claimant’s application for such an order and the claimant was named as Bernard Gray, a businessman and writer.   The anonymity order in favour of the defendant was however continued.

Anonymity

The Judge began his judgment by stating the “general rule” that the names of the parties to an action should be included in the orders and judgments of the Court.  He went on to say that:

“There is no general exception for cases where private matters are in issue.  Such matters are commonly litigated in public, for example, in the employment tribunal and in claims for personal injury and medical negligence and in the criminal courts” [1]

He also said that there was no general exception “for claims for injunctions to restrain publication of private information” and that there was a principle of open justice in English law which he said long preceded the ECHR and the HRA.

In relation to the Defendant he accepted  

” that his/her right to private life is engaged by these proceedings. I find that disclosure of the Defendant’s identity at this stage would be an unjustifiable interference with the Defendant’s private life and that that outweighs the rights of the public under Art 10, and the need for open justice”

This decision was based on two grounds.  First, the seriousness of the allegations made against the Defendant for a person in the Defendant’s position.

“There is no suggestion that the Defendant is anything other than a person of positive good character. On appearing in court before me the Defendant was distressed by the whole matter, and this was plainly sincere distress. For an individual to be brought to court in the circumstances in which this Defendant was brought to court is a very serious matter“.

The second ground was the effect on the defendant:

“If the claims of a claimant are properly made, then the effect upon a defendant of those claims being advanced may be a consequence that a defendant must accept in the interests of justice. But if the claims of a claimant ought not to have been made or pursued, the pursuit of the proceedings may have caused to a defendant distress, and possibly damage to reputation, which may not be remediable“.

In order to ensure protection of the anonymity of the Defendant,  and highly significantly,  he adopted the approach used in the recent blackmail injunction decisions of DFT v TFD and AMM v HXW. He ordered that there be no report of these proceedings or their subject matter of any information which is not included in this judgment. This effectively restrains reports of the judgment from including speculation as to the subject matter of the injunction.

In relation to claimant, in contrast to the DFT and AMM cases there was no blackmail.  The claimant said that there was a possibility that the media may speculate as to what the information is which would defeat the purpose of the claim.  The judge found that these were weak grounds and insufficient to justify prohibiting the disclosure of the identity of the Claimant.

“In the present case the reason advanced by the Claimant for why his identity should not be disclosed is weak. He refers to the possibility that the media may speculate as to what the information is. But in this connection I remind myself of the approach of the Supreme Court in Guardian at para [72]

“72 … the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press. James Madison long ago pointed out that “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press”: “Report on the Virginia Resolutions” (1800), in Letters and Other Writings of James Madison (1865) Vol 4, p 544. … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation.”

The judge relied heavily on the decision of the Supreme Court in the case of In re Guardian News and Media Ltd [2010] 2 WLR 325; [2010] UKSC 1. This case and the later Supreme Court decision in AP (No 2) were considered in a post earlier this year.

Spycatcher

One of the problems faced by privacy claimants when the defendant does not contest the case is the effect of the decision in Jockey Club v Buffham ([2003] QB 462): the effect of this decision is that a final injunction is not binding on third parties under the Spycatcher principle.  In an interesting obiter observation, the Judge considered a way round this difficulty.  He said

” In the present case Miss Addy has asked for an order that all further proceedings be stayed except for the purpose of carrying into effect the terms of the order I have made. I have included that provision in the order I have made. An alternative would have been to enter final judgment. That can be done where there is consent or where the requirements of CPR Part 24 are satisfied. The disadvantage of that from a claimant’s point of view is that whereas an interim injunction has been held to be binding on third parties, it has been held that a final injunction is not. As Eady J said in X & Y v Persons Unknown[2006] EWHC 2783 (QB), [2007] EMLR 290 at para 72:

“…the Spycatcher doctrine [Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 375, 380] would go on inhibiting third parties from publishing the relevant information notionally pending a trial which would never actually take place. The Spycatcher doctrine, as a matter of logic, has no application to a permanent injunction since, obviously, there is no longer any need to preserve the status quo pending a trial. This doctrine is directed at preventing a third party from frustrating the court’s purpose of holding the ring: see e.g. the discussion in Att.-Gen. v Punch Ltd [2003] 1 AC 1046 at [87]-[88] in the Court of Appeal and at [95] in the House of Lords; and Jockey Club v Buffham [2003] QB 462 (Gray J).”

“The fact that I have ordered a stay in the present case should not be taken as authority that that is the right course to take. I have heard not argument on the point”[42 – 43].

In other words, the proceedings were brought to an end by what remained an “interim order”, subject to a stay.    The undertakings given to the court by the defendant would appear to bind third parties under the Spycatcher principle.