Caselaw: Ntuli v Donald – Mark Thomson

On 16 November 2010 the Court of Appeal handed down judgment on an appeal and cross-appeal concerning an interim privacy injunction granted at first instance by Mr Justice Eady in March 2010 and continued until trial or further order on 26 April 2010, when his judgment was handed down. The judgment of Mr Justice Eady included details  of the private information in issue and was a private judgment.

The judgment handed down yesterday, Ntuli v Donald ([2010] EWCA Civ 1276) was a public judgment and was said to be expressed in muted or anodyne terms by the Lord  Justice Maurice Kay.  It has nevertheless received massive  coverage in the media as discussed in our post of yesterday. Lord Justice Maurice Kay gave the only judgment and Lord Neuberger and Lord Justice Sedley agreed.

The case gives rise to a number of interesting substantive and procedural issues.  Under the first heading, the case deals with the issues as to the extent to which the courts are prepared to protect not just sexual details but also other intimate, non sexual information, arising  in a relationship and with the vexed question of whether the courts will restrain publication of  the mere fact of a relationship.

Under the second heading, the case dealt with three procedural issues relevant to privacy injunctions; first the question whether a super-injunction should have been granted; second whether an anonymity order should have been granted and lastly and thirdly, the form of the public judgment and how much private information should be included in it.

Background to Appeal

The Claimant originally applied without notice for an injunction against the defendant following a text sent in the following terms:“Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”. The Defendant started negotiation with the News of the World and on 25 March 2010 the claimant sought and obtained ex parte on notice an interim injunction. On the return date on 30 March 2010,  there were two days of argument and the private judgment was handed down on 26 April 2010.

On the return date, the defendant offered limited undertakings not to disclose sexual details of the relationship but  in relation to this area the judge restrained publication of  “Any intimate, personal or sexually explicit details about the relationship … including any facts of a sexual nature.” In other words he restrained the other non sexual information  Following the key decisions of Campbell, Lord Browne and McKennitt, the judge held:

“I would certainly grant an injunction in respect of ‘salacious details’ (to adopt Lord Hoffmann’s phrase), but I would go further and restrict the communication, with a view to publication to the media, of information as to intimate conversations or activities. Wording of that kind would not prevent references to appearances or activities in public or social circumstances. A similar distinction was recognized in Lord Browne of Madingley. It has been acknowledged in that case and, for example, in McKennitt v Ash that private communications between intimates will generally give rise to a reasonable expectation of privacy under Article 8 …

The mischief towards which the injunction is directed is that of revealing publicly, for no good reason, intimate details relating to a personal relationship in which each party has a reasonable expectation of privacy.”

However in relation to the fact of the relationship, the judge at first instance found that there was a conflict of evidence on the issue of the duration and the intensity of the relationship that he could not determine  and he held that accordingly the claimant has failed to show that he was more likely than  not to succeed at trial and refused to restrain publication of  the fact. This was similar to the first instance finding in the Lord Browne case. The Court of Appeal in Lord Browne held however that the fact of Lord Browne’s  relationship with his lover was potentially private but decided not to restrain publication for other public interest considerations. The judge also continued the anonymity order and the superinjunction. There had therefore been no media reports of the case prior to the Court of Appeal judgment .

The Defendant appealed on the grounds that the injunction was too wide and should not have been granted in the light of the undertakings offered and she also appealed the anonymisation and superinjunction parts of the order. The Claimant cross appealed on “the fact of the relationship”, contending that publication of this should be restrained until trial or the determination of the factual disputes between the parties.

The Court of Appeal Decision

Unsurprisingly the Court of the Appeal upheld the substantive decision of Mr Justice Eady.  The Defendant criticised the Judge’s analysis of the privacy issues, and, in particular, relied upon the fact that, unlike the claimant in McKennitt, he had never sought to extract a promise of non-disclosure from the defendant during the course of the relationship; the unlikelihood of any significant damage to the Claimant’s career or family life in the event of disclosure; and the nature and purpose of Ms Ntuli’s desired publication, identified as the exercise of her Article 8 rights of self-development and autonomy and her Article 10 rights of freedom of expression.  The Defendant also placed particular emphasis at this stage on  her “need” to tell the story of a relationship that went wrong and the reasons for its failure as she sees them by reference to her rights to personal autonomy and self-development.  In relation to this,  Lord Justice Maurice Kay held;

“I simply do not accept that the judge, who is steeped in litigation of this kind, failed to have regard to any of these matters. It seems to me that they are all addressed, expressly or by implication in his judgment. At that stage, Ms Ntuli was represented by different Leading Counsel and it is plain from the skeleton argument before Eady J and the judge’s references to the oral submissions that Mr Tomlinson’s predecessor put the case a little differently. For example, it needed Mr Tomlinson to put Ms Ntuli’s desire to tell her story in the context of her right to personal autonomy and self-development. However, I regard that, in the present case, as an ex post facto dignification which does not live easily with the evidence to which I referred, in truncated form, in paragraphs 3 and 4, above.”

The judge clearly had regard to Ms Ntuli’s stated motives for wanting to sell her story (see, for example, paragraph 32 of his judgment). He referred to Mr Donald’s “admissions as to his past behaviour”, adding that it “can be taken into account, and assessed in the general application of the ‘intense focus’ to the facts of the case but it cannot be a determinative factor or anything like it” (paragraph 30). He evaluated the information and, in my judgment, was right to place a relatively low value on it in the light of the authorities to which I have referred. He also had proper regard to the possible impact of publicity on the parties’ respective children (Mr Donald’s being somewhat younger).”

In relation to the fact of the relationship the Court of Appeal rejected the view that this was an exceptional situation under the test set out in the House of Lords decision in Cream Holdings v. Bannerjee:

“In my judgment, this case bears no resemblance to the cases that Lord Nicholls had in mind as exceptional. Disclosure of the mere fact of this past relationship which, on any view, was not entirely secret, does not carry with it particularly grave adverse consequences. In view of the limited nature of the permitted disclosure and the other matters properly considered by the judge, it cannot be said that, in relation to this issue, he “erred in principle or reached a conclusion which was plainly wrong”, that being the test to be applied on appeal: Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103, [2007] EWCA Civ 295, at paragraph 45 (per Sir Anthony Clarke MR). Whilst it is true that there is no urgency in respect of this disclosure, nor is there a compelling reason to restrain it. Moreover, ASG does not assist Mr Donald because, not only was it fact-sensitive, more importantly it was concerned with the prior, ex parte stage. “

On the issue of the “superinjunction” the judgment cited the central cases concerning open justice including Scott v Scott, A-G v Leveller and ex parte Kaim Todner.  It accepted that there are circumstances in which to insist upon open justice would itself create a greater injustice but said that these were not present in this case. In relation to the superinjunction in this case,  Lord Justice Maurice Kay said;

” Mr Sherborne seeks to fortify that submission by inviting us to dilute the test of necessity referred to in the earlier authorities on the basis that they preceded the Human Rights Act which, in providing for competing qualified rights (private life and freedom of expression), requires a more nuanced approach. In this regard, he refers to the control order case of Home Secretary v AP (No.2) [2010] 1 WLR 1652, [2010] UKSC 26, in which the anonymity of a successful appellant against a control order was continued. In my judgment, there is no need for a new approach. Indeed, it is significant that Article 6 of the ECHR itself prescribes a test of strict necessity in the context of publicity being permitted to be restricted in the interests of justice. However, as part of its consideration of all the circumstances of a case, a court will have regard to the respective and sometimes competing Convention rights of the parties. In AP(No.2), this led Lord Rodger to formulate the question in these terms (at paragraph 7)
“… whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.”

There, anonymity was continued because the public interest in publication “has to give way to the need to protect AP from the risk of violence” and the same public interest “would not justify curtailing AP’s right to respect for his private and family life” (paragraph 18). Whilst this is not the language of “necessity”, it is not significantly different. Indeed, “has to give way” is qualitatively similar to a necessity test. Necessity remains the test for the residual power to order a private hearing under the Civil Procedure Rules (CPR 39.2(3)(g)).This is an essentially case-sensitive subject. Plainly Mr Donald is entitled to expect that the court will adopt procedures which ensure that any ultimate vindication of his Article 8 case is not undermined by the way in which the court has processed the interim applications and the trial itself. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which Mr Donald is entitled. In my judgement, in view of the terms of the substantive injunction and the circumstances of this case, the appropriate restriction on publicity is one that limits reporting and publicity to what is contained in this judgment, together with any ancillary orders necessary to fortify such an order. I am simply unpersuaded that greater restriction is necessary at this stage. There is nothing in this judgment that is significantly invasive of Mr Donald’s private or family life.”

Although we have not seen the Court’s order, it is clear that it is approving the approach of the “DFT Order” – preventing any further reporting other than that which is in the judgment. This device was also used in the AMM and Bernard Gray cases, which we have considered before.

The above passage in the judgment also effectively disposed of the issue concerning anonymity.  Lord Justice Maurice Kay also held in respect of anonymity that there was general problem of media jig-saw identification if the claimant is anonymised and this was a reason not to anonymise.

Provided that publicity is limited to what is contained in this judgment, there is no justification for continued anonymity. I have in mind the judgment of Lord Rodger in Guardian News and Media Ltd [2010] 2 WLR 325, [2010] UKSC 1, at paragraphs 63-64. The material in respect of which Mr Donald has been found to have a reasonable expectation of privacy is not detailed in the judgment. The material in the judgment does not attract a reasonable expectation of privacy. I note that an order restricting publicity to the contents of a judgment, in relation to which one party was anonymised but the other was not, was recently made by Tugendhat J in Gray v UVW [2010] EWHC 2367 (QB): see in particular paragraphs 44-63. There the continued anonymity of the defendant was justified by a significant risk that lifting his or her anonymity might have serious consequences for his or her private life which consequences might not be remediable. I do not consider that the same can be said of Mr Donald in the present case. In my view, it would have been possible and appropriate for Eady J to have written his judgment in a publishable form. Moreover, to have done so would have avoided the risk that anonymisation can give rise to, namely that of “jigsaw” identification, whereby anonymisation may be undermined by correctly identifying someone as a result of relating separate snippets of information or, equally unfortunately, it may lead to the wrong person being identified by the media misaligning the snippets. We were shown one recent example of this.

Significantly the Court emphasized  that the  conclusion on the superinjunction and anonymity issues were “case sensitive” and it did not seek to lay down any general principles.  The dismissal of the cross- appeal, and therefore the refusal to restrain the fact of the relationship has therefore had a significant impact on the other issues in this case as well and the form of the public judgment.

Perhaps the most unusual aspect to the decision was the form of the judgment.  This discloses not only fact of the relationship – which is a piece of information which the Claimant had argued was private – but also that it was sexual, how long it lasted and details about the children of the Claimant and the Defendant. The appears be inconsistent with the approach of House of Lords in the Cream Holdings case – where it was said that it should be for the defendant to decide whether to risk a a damages claim by publishing the unrestrained categories of information.  The view of the House in that case – and of the Court of Appeal in Lord Browne – was that the court should not destroy any claim for breach of confidence by including the information in the judgment itself. The judgment also appears to equate the concept of relationship with that of sexual relationship and appears to be intrusive for both the claimant and also the Defendant, who is restrained from saying anything further.  The judgment goes further than the carefully worded decisions in Gray v UVW and JIH v News Group where the judge, having rejected a claim for anonymity, was very careful not to disclose anything about the nature of the private information covered by the order.

Discussion

As mentioned  in my post on Protecting Privacy in Court Proceedings, Article 6(1) expressly recognises that the press or public may be excluded from all or part of the trial. It provides;

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Furthermore the Cour of Human Rights has recognised in B v United Kingdom; P v United Kingdom ([2001] 2 FLR 261) that the Article 6 requirement to hold a public hearing was subject to exceptions. The court said:

“….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that ‘the press and public may be excluded from all or part of the trial…. where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice …” [37]

For the purpose of Article 6, a “determination” must in general be a final determination of a civil right or obligation or a criminal charge (See R (Wright) v Secretary of State for Health [2009] UKHL 3). Accordingly interim decisions in interim hearings will not be subject to the guarantees under Article 6.  If the trial is held in private, there is an obligation to hand down a written judgment in public (See Werner v Austria). However there may be exceptions where it is not possible to produce an anonymised or abridged version (See for example Y v Attorney General [2003] EWHC 1462 (Ch)).

It appears that the Courts are still grappling with their obligation to provide effective remedies to threatened invasions of privacy and the requirements of Open Justice.  “Anonymisation” is one, very effective, way of protecting privacy.  This was done in the two recent “blackmail” cases of DFT and AMM. The other solution is to name the claimant but to avoid any discussion of the material which is the subject of restraint, as in Gray v UVW or JIH v News Group.  This Court of Appeal judgment illustrates the problem with not anonymising.  The claimant in JIH is seeking permission to appeal on the issue of anonymity so it may be that the Court of Appeal will have revisit these issues in the near future.