The Court of Appeal today handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42).  In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.  Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases.  This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.

The JIH judgment makes interesting reading for two reasons. First, it contains an important discussion about the ways in which reporting restrictions should be tailored in order to best serve the public interest in open justice whilst still providing adequate protection for the parties’ Article 8 rights. Recognising that there is a usually tension between disclosing the identity of the parties to a claim and disclosing the nature of the information that is the subject of the claim, the court plumps for the latter on the facts of JIH. In so doing, the court offers strong support for those who believe that the public interest is usually better served by disclosure of details about the injuncted information itself (together with anonymity for the claimant if necessary) rather than publication of the bare fact that a named individual has obtained an injunction in respect of unspecified information.  Secondly, the judgment also provides an authoritative general summary of the principles that the courts will apply when deciding whether or not to grant anonymity in a privacy claim. This will serve as a useful reference point for practitioners, clients and judges in future cases.

JIH – The facts

The claimant, “a well known sportsman” [7], was in a long-term relationship. At an earlier point in the relationship a newspaper had published a story about a sexual encounter that had allegedly taken place between the claimant and another person (“YY”). The claimant had not received prior notification that this story would be published and had therefore been unable to apply for an injunction to prevent its publication. In August 2010 the claimant discovered that the defendant newspaper had been told of another alleged sexual affair, this time involving a woman named ZZ. After learning that the News of the World intended to publish a story about the claimant’s liaison with ZZ, the claimant applied to the court for an injunction preventing the publication of any information concerning that relationship. An interim injunction was granted by Nicol J and was immediately served on the defendant and other media organisations.

Thereafter the claimant and defendant entered into negotiations with a view to agreeing terms pending the trial of the claimant’s claim. The parties eventually reached an agreement that (a) the defendant would submit to an interim injunction preventing it from publishing information about the relationship with ZZ; (b) the identity of the claimant would not be disclosed pending the final hearing; and (c) the hearing of the application would take place in private and would not be reported. A draft order to this effect was duly lodged with the Court for approval.  However, Tugendhat J refused to make the order without having heard argument persuading him that it was appropriate for him to do so. After hearing arguments Tugendhat J approved the terms of the draft order with one important exception: he refused the claimant’s application to continue the anonymity order.

This refusal was stayed pending any appeal. Shortly after the judgment was handed down there was some media reporting of the case that disclosed more information than was permitted by Tugendhat J’s order. As a result of this breach, the claimant asked the judge to reconsider the refusal of anonymity. This application was also refused, the judge holding that the information disclosed in breach of his first order had been “very limited” (see JIH v News Group (No.2) [2010] EWHC 2979 (QB)).

The argument before the Court of Appeal

The claimant appealed both of Tugendhat J’s decisions to the Court of Appeal. In essence, the claimant argued that the decision refusing to grant him anonymity pending a final hearing was wrong and was only arrived at as a result of the judge misunderstanding the scope of the parties’ agreement and submissions. The defendant did not seek to renege on the agreement before the Court of Appeal; however it did make submissions on points of general principle concerning the granting of anonymity in privacy cases. The appeal was opposed by two sets of written submissions from Guardian News and Media and The Media Lawyers Association.

Judgment of the Court of Appeal

The judgment of the Court of Appeal was delivered by Lord Neuberger MR (with whom Maurice Kay and Smith LJJ agreed). He began by summarising the principles that apply whenever a claimant seeks an anonymity order or other restraint on publication of details of a case that would normally be in the public domain:

(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2) There is no general exception for cases where private matters are in issue.

(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.

(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.

(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one. [21]

Counsel for the claimant had argued that once the court has accepted that the publication of private information should be restrained, if the court is to avoid disclosing that information it must proceed in one of two alternative ways:

(1)   If the public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised; or

(2)   If the claimant is named in the public judgment then the information should not be directly or indirectly identified.

Tugendhat J had accepted this proposition at first instance. However on appeal the Court of Appeal was slightly more circumspect. Whilst the proposition was “not an unfair assessment in the present case” in other cases “the position will sometimes be a little less stark” [25]. Nevertheless, Lord Neuberger then went on to say that:

“in any case, it is plainly correct that, where the court permits the identity of the claimant to be revealed, it is hard to envisage circumstances where that would not mean that significantly less other information about the proceedings could be published than if the proceedings were anonymised.” [25]

The converse, his Lordship added, is also equally true:

“if the claimant is accorded anonymisation, it will almost always be appropriate to permit more details of the proceedings to be published than if the claimant is identified”. [25]

Applying these principles to JIH’s case, the Court of Appeal held that due to an oversight or misunderstanding Tugendhat J had fallen into error in refusing to grant anonymity. The court therefore overturned that refusal and, conducting the exercise afresh, held that anonymity should be ordered. The exact details of Tugendhat J’s error are unimportant. However in reversing his conclusion on the anonymity issue, the Court of Appeal embarked upon an interesting analysis of the reasons why the public interest would be better served by this course of action.

Lord Neuberger stated:

“At least on the face of it, there is obvious force in the contention that the public interest would be better served by publication of the fact that the court has granted an injunction to an anonymous well known sportsman, in the circumstances described in paras 7-9 above, than by being told that it has granted an injunction to an identified person to restrain publication of unspecified information of an allegedly private nature.” [33]

He noted that the widespread use of anonymity orders had given rise to a belief in some quarters that there may be no way of assessing the extent to which, and the circumstances in which, the courts are granting orders restraining publication of allegedly private information. In the Court of Appeal’s view, this concern could be substantially met if judgments and orders disclose as much as possible about the case:

“More particularly, there is much in the point that the media will be generally better able to discover, and report on, what the courts are doing if they can publish (a) details of the type of case (for instance, as in this case, a sexual liaison between an unidentified well known sportsman, in an apparently monogamous relationship, and a third party) rather than (b) the name of the individual who is seeking to protect an unspecified aspect of his or her alleged private life by means of an injunction. As Mr Tomlinson puts it, the former information would normally enable the public to have a much better idea of why the court acted as it did than the latter information” [35]

The court acknowledged the value of being able to name JIH as the claimant. On this point, the court referred to Lord Rodger’s observation in the Guardian News and Media case [2010] 2 WLR 325 that “if newspapers can identify the people concerned they may be able to give a more vivid and compelling account which will stimulate discussion…Concealing identities simply casts a shadow over entire communities.” However Lord Neuberger also noted that, unlike the present case, the Supreme Court had not been concerned with a trade-off between revealing the identity of a party and publishing the substance of the allegations and order [36].

The court also acknowledged that there was some force in the argument that “an anonymity order runs the risk of unintentionally encouraging suspicion and gossip in relation to innocent third parties”. A simple internet search in the present case revealed inaccurate speculation about the identity of JIH.  However there was a compelling counter-argument:

“On the other hand, it is true that, at least in many cases, identification of the claimant will be more likely to result in public speculation, or even deduction by journalists or members of the public, as to the nature of the information which he is trying to keep out of the public domain. Indeed, there is something in the point that such speculation could be even more damaging to JIH than if no injunction had been granted at all.” [38]

According to Lord Neuberger, the decisive fact in the present case was the previous story about the claimant’s liaison with YY, which had already been published, without the claimant’s prior knowledge or permission. The allegation at the centre of that story was very similar to the allegations made by ZZ which formed the focus of the present application. If an order were made permitting publication of the claimant’s identity but prohibiting publication of the nature of the information that he was seeking to restrain, it would nonetheless be relatively easy for the media and public to deduce the nature of that information. People would easily put two and two together and (accurately) infer that the information subject to the injunction in the present case was very similar to the information already in the public domain concerning the claimant’s affair with YY. In Lord Neuberger’s words, it would be “a classic, if not very difficult, jigsaw exercise”. [40] This would effectively defeat the purpose of an injunction.

Discussion

The court’s discussion of the public interest issue is important. Lord Neuberger’s reasoning focuses upon the importance of allowing the media to report on “what the courts are doing” and enabling the public to understand “why the court acted as it did” in a particular case. This conception of the public interest is not unusual in this field. In the recent High Court decision in CDE v MGN Ltd, Eady J stated that the “most important element of open justice” (at least in that case) was that “interested observers and legal practitioners should be able to monitor the court’s processes and form a view as to whether judges are applying a consistent, fair and balanced approach in the application of this recently developed jurisdiction to the facts of individual cases.” [84] As I noted in a previous Inforrm post, it could be argued that this sits uncomfortably with Lord Rodger’s statement in In re Guardian News and Media Ltd that “the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers” [68]. Facilitating critical and informed evaluation of the justice system is a commendable aim. Indeed, as Lord Neuberger says in JIH: “the ability of the press freely to observe and report on proceedings is an essential ingredient of the rule of law” [4]. However it might be argued that scrutiny of the courts is not the primary objective of open justice in every case.  In some cases at least the true public interest issues resides in the identity of the person seeking to invoke the court’s privacy jurisdiction.

The case contains some useful practical guidance that will be of particular interest to privacy law practitioners. Lord Neuberger’s judgment (at [21]) provides a helpful summary of the principles that must guide a judge faced with an application for reporting restrictions in a privacy case. This, and the court’s analysis of the reasons for granting anonymity in JIH’s case, will help legal advisers to provide practical advice to clients in a notoriously tricky area.

It is notable that the Court of Appeal was at pains to emphasise that it was not laying down any general principle in favour of anonymity. Thus, Lord Neuberger emphasised that:

“…when deciding on questions of this sort, each case will turn on its own facts. Accordingly, it is not appropriate to suggest that there is some sort of general rule that anonymisation is more, or indeed less, likely to result in greater interference with free speech and maintaining public scrutiny of the courts than precluding the publication of more extensive information about the proceedings.” [39]

Nevertheless, the tenor of the judgment clearly appears to favour an approach that allows publication of the details of the information being injuncted whilst concealing the identity of the claimant. This ties in with the court’s discussion of the public interest rationale examined above. If the public interest in open justice is mainly concerned with the need to ensure that the courts are acting consistently and fairly it is obvious that disclosing the identity of the name of the successful party will generally contribute comparatively little to this exercise. An understanding of the nature of the information subject to the injunction will tend to be far more illuminating.

Conclusion

The judgment in JIH provides a clear and authoritative synopsis of the law relating to reporting restrictions and anonymity in privacy cases. However the “efflorescence of anonymity orders” (to use the words of Lord Rodger) and the fundamentally fact-sensitive nature of the issue make further litigation inevitable. This is a contentious and rapidly evolving area of the law where important matters of principle frequently collide. Judges, journalists and lawyers should therefore expect further debate and discussion in the coming months.

Edward Craven is trainee barrister at Matrix Chambers.