On 3 December Mrs Justice Sharp handed down judgment in the case of XJA v News Group  EWHC 3174 (QB)). This was a privacy action, where an interim holding injunction was extended by consent until trial or further order. The claimant had made an application on short notice against the defendant, News Group Newspapers for an interim injunction, restraining the publication of certain alleged private information, which the defendant had informed the claimant earlier that day, it intended to publish. The application was opposed and Mr Justice Calvert-Smith J, granted the relief asked for (including that the claimant be anonymised) and provided for a very short return day for a full hearing between the parties, 2 days later.
The matter then came before Sharp J , on an application for the continuation of the injunction. Mr James Price QC on behalf of the claimant made submissions to the effect that the central information with which the action was concerned was false. After these submission Mr Spearman QC, on behalf of the Defendant asked the court to adjourn the matter in order to look into the matter further.. The case was adjourned twice for periods of 7 days.
The parties then agreed a consent order, subject to the court’s approval in relation to the provisions concerning open justice, which provided, amongst other matters, for the continuation of the interim relief granted by Calvert-Smith J until trial or further order. On behalf of the Claimant, Mr Price submitted that following the decision of the Court of Appeal in Ntuli v Donald  EWCA Civ 1276, the relevant question on anonymity which has to be answered is that posed in the judgment of Lord Rodger in Home Secretary v AP (No 2)  1 WLR 1652 at :
“…the court must ask itself ‘whether there is a 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.’ The court [in Re Guardian News & Media] emphasised that the answer will depend on the facts of the particular case.
He also argued that “this [anonymisation] is an essentially case-sensitive subject” so that reference to earlier or other cases is unlikely to be of significant assistance in answering the relevant question. As the claimant was a well-known person if his identity became public it would lead to intrusive questions and speculation which would be extremely distressing for him and his family.
It was argued that the Claimant would be placed in a particularly invidious position because the central information with which this action is concerned was (on his case) fictional. The claimant would either have to remain silent when faced with questions and speculation, including questions from family and friends, which would lead to people supposing the information in issue was true, and very likely of an embarrassing or humiliating nature (in short, that he had acted appallingly and was trying to cover it up). Or he would have to explain, by saying the information is false which would to that extent, defeat the purpose of the injunction. Either way, publication of the information would seriously affect the harmony of his family.
Mr Price QC also submitted that the bare fact that a named claimant has obtained a privacy injunction covering unspecified private information serves no public purpose: it contributes nothing to the useful stock of public knowledge or to a debate of public interest. On the contrary, it would simply feed useless and potentially damaging speculation.
Mrs Justice Sharp accepted these submissions. She held that following Donald v Ntuli, anonymisation is a fact sensitive exercise and that unlike JIH there was nothing to suggest that this matter would not proceed to trial in the normal way. In those circumstances the Court should consider what may happen in the future i.e at the trial of the action.
The Judge distinguished the JIH reasoning saying that the order in that case;
might well be the last order the court is asked to make in that action (see paragraphs  to  of the judgment). In this case however, the parties have agreed to the continuation of the order made by Calvert-Smith J, until trial or further order; and there is nothing to suggest that this case will not, in fact progress to a trial.
She also considered possible future outcomes of the proceedings:
Naming a claimant may well have an impact on what if anything can be said in a later public judgment, including after a trial. There may be cases (McKennitt v Ash  EWHC 3003 (QB); affd,  QB 73, is one such example) where even if the claimant is named in an action in which he is ultimately successful, the nature of the information or the subject matter of the information could be revealed in a public judgment after a trial in general terms, without revealing the private information the action is brought to protect.
If however the case is one in which it would not be possible as a matter of reality, for the court to indicate the nature of the information without revealing it (and in my view, this is such a case) naming a claimant at the interim stage may produce an undesirable restriction on what could be said in a subsequent judgment, including a fully reasoned public judgment after a trial.
In conclusion the Judge said that
there is no sufficient general public interest in identifying the Claimant at this stage of the proceedings, to justify any resulting curtailment of his right and his family’s right to respect for their private and family life. The article 8 rights of the Claimant are engaged in my view, both as to the subject matter of the action and as to the information that the Claimant is the person who brought these proceedings and obtained an injunction to protect his privacy. Identification of the Claimant could on the evidence before me, seriously affect his family life. It is material in my view, that the central information with which this action is concerned is said to be false, for the reasons Mr Price gives. The issue of truth or falsity is yet to be determined. But it seems to me it is a factor in this case which is relevant to the seriousness of the interference with the article 8 rights of the Claimant, and to the need for an anonymity order. As against that, there is nothing to report about this case, apart from the bare fact that an identified claimant has obtained a privacy injunction, and the court’s consideration on the issue of anonymity, which cannot feed on itself to create a justification for identifying the Claimant. 
I find therefore in all the circumstances, that disclosure of the Claimant’s identity would be an unjustifiable interference with his private and family life, which outweighs the rights of the public under article 10 and the need for open justice; and that it is necessary therefore to continue the order that the Claimant shall not be identified. 
It should be noted that there have only been a handful of privacy trials in the past decade. Only four judgments have been made public. The first was Campbell v MGN. It took place after massive publication of the offending material and follow up articles. The trial judge awarded damages and this was eventually upheld by the House of Lords. The second was Douglas v Hello, which took place after the failed application for an injunction. The third was McKennitt v Ash which took place in private. Ms McKennitt succeeded at trial and obtained an injunction, a declaration and damages. There was a lengthy public judgment handed down which avoided publication of the offending passages which were restrained in the defendant’s book. The Court of Appeal upheld the trial decision of Eady J and the House of Lords refused permission to appeal. The fourth privacy trial was Mosley v Newsgroup Newspapers which took place in public after massive publication of the offending material. If Mr Mosley had been given notice and had restrained the offending material, it is likely that some if not all of any trial would have been heard in private.
In the XJA case, in contrast to the recent decisions in JIH v News Group, Donald v Ntuli and Gray v UVW , the anonymity provisions were extended even though the case did not involve blackmail. The case therefore goes against what has become something of a recent trend – to make anonymity orders only in “blackmail” cases. Such orders were made in the cases of ASG v GSA, DFT v TFD, AMM v HXW and KJH v HGF. We also draw attention to the fact Mrs Justice Sharp again made a “DFT order” – so the following warning is given at the beginning and end of the Judgment (in red on the Bailii version):
“Publication of any report as to the subject matter of these proceedings or the identity of the Claimant is limited to that contained in this judgment”