Judgment was handed down today in the privacy case of Zac Goldsmith and others v BCD ( EWHC 674 (QB)). The case provides some interesting guidance how to deal with return dates for privacy injunctions. The original injunctions had been granted in December 2008 (“the 2008 Orders”) after someone had hacked into the claimants’ email accounts and sent what purported to be personal information to a journalist.
The claimants were anonymised and, at that stage, the identity of the defendant was not known. The claimants obtained Norwich Pharmacal orders against Microsoft and in January 2009 identified the defendant who was reported to the police. The defendant was subsequently arrested and cautioned.
Although the claimants had given undertakings to the court to serve claim forms they failed to do so once the defendant had been identified and did nothing to progress the action . In December 2010 solicitors for News Group Newspapers wrote to the claimant’s solicitors about the anonymity provisions in the 2008 Orders. This was one of a number of similar letters written by newspapers about anonymous orders following the first instance decision in JIH v News Group (which subsequently overturned by the Court of Appeal, see our post here). These other letters are mentioned in the judgment .
Because of the breach of the undertaking it was necessary to have a court hearing. BCD agreed to judgment by consent and, on 17 March 2011 Mr Justice Tugendhat discharged the 2008 Orders. He extended time for service of the claim form because the breach of the undertaking was not designed to achieve an improper purpose [39-45] and made new orders.
In the course of his judgment the Judge noted that the 2008 orders had included a provision prohibiting the publication of information relating to the proceedings – a so-called “super-injunction” and a provision anonymising the proceedings. He explained the reasons for these provisions as follows:
“If the unknown Defendants (whoever they might be) came to know that the Claimants had commenced these proceedings and had obtained an order of the court before the Claimants could effect service of the claim forms on them, there appeared to me to be a real danger that the Defendants might either defeat the purpose of the proceedings by publishing the contents of the confidential e-mails, for example on the internet, or that they might destroy evidence which might lead to the identification of the Defendants. See Terry v. Persons Unknown  EWHC 119 (QB)  EMLR 16 at page 400 at para 138″. 
The 2008 Orders contained no return date. The judge noted that this was done to keep down the costs of access to justice . He suggested, however, that this had given rise to unintended consequences – including the failure to fulfil undertakings and derogations to open justice continuing longer than was necessary  He noted that, as a result of this concerns, on 2 December 2009, he said in G and G v Wikimedia Foundation Inc  EWHC 3148 (QB) - that there should be a return date.
Mr Justice Tugendhat then drew attention to the recent changes in practice:
“In order to assist media third parties in this regard, and for the benefit of those members of the public who are concerned about anonymised injunctions, there have been changes in practice. During the last year judges have generally adopted the practice of recording their reasons for granting an injunction that might affect the media in the form of written reserved judgments (like this one) which are made available on the internet at websites including www.bailii.org. In the past that information was not always provided to third parties unless they requested it”. 
He went on to suggest an “alternative way to avoid unnecessary costs”:
“where at the return date the only relief that the claimant seeks is agreed with all parties concerned, or where it is an extension of time for service of the claim form, or an extension of an anonymity order, or some other ancillary provision, this can generally be done on paper”. 
He suggested that solicitors for the claimants could write to the Court explaining what had happened since the injunction had been granted and why an extension to a new return date was required. 
On the issue of anonymity, the judge noted that the defendant had asked for anonymity, supported by medical evidence, and the claimants supported the application . In all the circumstances, he agreed to make the anonymity order. It appears that the claimants did not seek a continuation of the anonymity order which they had originally been granted.
This case provides important guidance for practitioners in relation to privacy injunctions. It is a further reminder (after Gray v UVW  EWHC 2367) of the importance of complying with undertakings given when “without notice” privacy injunctions are granted and of the way in which the court will scrutinises orders which derogate from open justice.
Mr Justice Tugendhat draw attention to the legal costs which result from the recent practice of always having “return dates” for privacy injunctions. This means, in effect, that every privacy injunction has at least two hearings. He approves a practice of renewal on paper in circumstances where there is no need for the parties to attend. He notes that under CPR 1.4(2)(j) active case management includes dealing with the case without the parties needing to attend court. The examples he gives of reasons why the matter might be dealt with on paper include inability to serve the defendant, a defendant requiring further time or a police investigation. 
It should noted however, that what is contemplated is a renewal of the injunction until a further return date – as opposed to the standard renewal “until trial or further order”. In other words, it remains the case that a return date of some kind will usually be required. This is consistent with the point made by Court of Appeal in JIH v News Group Newspapers ( EWCA Civ 42, (8)) that anonymity orders must be reconsidered on the return date.
Whether or not an anonymity order in a case of this kind will be removed will, of course, depend on an “fact sensitive analysis” but bearing in mind the point that the Master of the Rolls made in his recent lecture on open justice that the public interest is arguably better served
“by knowing about the type of case which is coming before the courts, and the types of case in which reporting restrictions are being granted, than by knowing which famous [person] is seeking an injunction for wholly unspecified relief”.
One final point of interest arising out of this case is the fact that – as in Gray v UVW ( EWHC 2367) – the court decided, in the end, to anonymise the defendant (but not the claimants). In both cases, the defendants appear to have been vulnerable individuals who might suffer interference with their Article 8 rights if their names were made public. In other words, the Court as a public authority is taking into account Article 8 rights other than those of the claimant. This is a proper course of action and one which may also be of relevance when third parties other than the claimant (such as family members) who are potentially affected by publication of private information or the disclosure of a name.