Case Law: OPQ v BJM – a privacy injunction “contra mundum”

The case of OPQ v BJM ([2011] EWHC 1059 (QB)) addresses one of the most difficult practical issues in privacy law and adopts a novel solution.  Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case.   This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.  The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).

The problem to which this judgment is a potential solution arises because the law takes a different approach to “interim” and “final” injunctions.   Most privacy cases begin with an application for an interim injunction.   If granted, such an injunction will “bind” third parties who have notice of it.  This is the so-called “Spycatcher” doctrine.  This is often (though not always) the purpose of obtaining the injunction in the first place.  However, the claimant’s problem is that once the injunction is made final it loses its Spycatcher effect and binds only the defendant (see Jockey Club v Buffham [2002] EWHC 1866 (QB)).  This means that, in practice, most privacy cases are left in a state of “suspended animation”: the claimant does not wish to progress them to final judgment because if this happens the very protection against publication which was sought in the first place is no longer available.   The OPQ case provides one possible “way out” of this unsatisfactory state of affairs.

Facts

Eady J described the case as a “straightforward and blatant blackmail case” [1].  The defendants threatened to sell intimate photographs and other information relating to the claimant to Associated Newspapers.  Their representative demanded a large sum from the claimant’s solicitor.  On 29 January 2011 Cox J granted an injunction to restrain publication.  On 2 February 2011 Eady J held that the Article 8 rights of the claimant and his family were engaged and there was no public interest in publication [5].  As a result, he continued the interim injunction, which was served on the media in accordance with the “Spycatcher” principle [7].

As the defendant had no answer to the claim, the parties reached an agreement to bring the action to an end – including an undertaking not to publish [8].  At that stage, as the Judge said

“It is generally thought that once a permanent injunction has been obtained following a trial, or by consent, or an undertaking has been given to similar effect, the Spycatcher doctrine will no longer apply. That is because the court’s purpose, in holding the ring until trial, has been overtaken by events – there will be no need for a trial.” [9]

The claimant’s concern was how to proceed when the interim injunction ceased to have effect.

His solution was to seek an “injunction contra mundum”  – that is, an order taking effect against the whole world. There was an apparent jurisdictional problem – such injunctions have, traditionally, only been granted in a very limited range of circumstances.  However, in Venables and Thompson v News Group Newspapers ([2001] EWHC 32 (QB)) Butler-Sloss P held that such an injunction could be granted in support of an action for breach of confidence.  She held that

“in light of the implementation of the Human Rights Act, we are entering a new era, and the requirement that the courts act in a way that is compatible with the Convention, and have regard to European jurisprudence, adds a new dimension to those principles. I am satisfied that the injunctive relief that I grant should, in this case, be granted openly against the world”  [100].

An injunction was granted in that case because of the real and strong possibility of serious physical harm and death, however Eady J held that the jurisdiction was not confined but was available

“wherever necessary and proportionate, for the protection of Convention rights, whether of children or adults” [18]

The judge referred to the cases of X (formerly Bell) v O’Brien [2003] EWHC 1101 (QB) and Carr v News Group Newspapers Ltd ([2005] EWHC 971 (QB)) in which contra mundum injunctions were granted to protect Article 8 rights.  He held that

“there is solid medical evidence as to the health, including the mental health, of the Claimant and various family members. Their rights plainly need to be taken into account… It is clear that publicity relating to the subject-matter of the present dispute could have very serious consequences. It may well be that this is one of the main reasons why opposition was withdrawn by various newspaper groups shortly before Mr Price made his application before me” [24].

He concluded that, the Article 8 rights of the claimant and other members of the public were engaged and that there was “no reason why the Article 10 rights of the Defendants or indeed of anyone else should prevail” [26].  Most importantly he noted that

“in view of the clear risk of publication in the media, there is unfortunately no other means open to the court of fulfilling its obligation under the Human Rights Act to protect those rights than to grant a contra mundum injunction“. [26]

Comment

The novel nature of the injunction granted in this case does not, as some media comments appear to suggest, relate to its “worldwide” nature – the English courts have always had “an unlimited jurisdiction” over persons in England and can  order such a person in England to do something – or not to do something – anywhere in the world.   Rather, what is new is the grant of a contra mundum injunction in a case where it appears that there is no threat to life or limb. This will come as a surprise to many privacy lawyers.

Keith Mathieson draws attention in his case comment on the RPC Privacy Blog, to the recently published Second Edition of the authoritative Tugendhat and Christie: The Law of Privacy and the Media (OUP, 2011) where in the chapter on “Remedies” by James Price QC, Iain Christie and David Hirst, it is said

“Contra mundum orders are at the extremity of the court’s power, and would not commonly be granted in aid of a private right, except where life or limb was at risk”. (para 13.35).

However, as appears from the case law discussed by Eady J, this statement (which reflects a widely held view) is too restrictive: the jurisdiction is available wherever it is necessary to protect the Article 8 rights of claimant.  Although Eady J makes specific reference to adverse impact on the “health and wellbeing of various members of the Claimant’s family” [2] (and to “solid medical evidence as to the health, including the mental health, of the Claimant and various family members” [24]) it is not suggested that such evidence is a necessary precondition to the exercise of the jurisdiction.

Although all privacy injunction decisions are fact sensitive this case opens up the possibility of final “contra mundum” injunctions being sought in many of the “ordinary” privacy cases which are currently before the courts.    If a final order does not take Spycatcher effect and if an order is necessary to protect the claimant’s Article 8 rights then the conclusion seems inevitable: a contra mundum injunction should be granted.  In terms of the applicable principles, it is not clear why the “threshold” which applies in relation to contra mundum injunction should be any higher than that which is applied to the making of a final privacy injunction against a specific defendant.

The making of contra mundum injunction is one possible solution to the Spycatcher issue.  The other possibility would be to follow hints in some of the speeches in the Spycatcher case itself (and earlier authority such as Seaward v Paterson ([1897] 1 Ch 545) and hold that “final orders” also affect third parties.  As Eady J mentions in his judgment, this issue may be determined by the Court of Appeal shortly [9].

Two further practical issues can mentioned.  The first is the extent to which a person needs to have notice of a contra mundum injunction before being “bound” by its terms.  In the case of Attorney-General v Greater Manchester Newspapers ([2001] EWHC QB 451) Butler-Sloss P held that it was sufficient if someone was “well aware of the spirit of the order” [19]   Although the position is not wholly clear, it appears that this is the same test as is applied in relation to the application of the Spycatcher principle to third parties.

Second, there is the question as to the variation or discharge of the injunction.  Interim injunctions invariably contain a provision which enables third parties to apply to vary or discharge the order.  This provision can be invoked where, for example, new information comes to light which provides a “public interest” in publication and changes the balance between Article 8 and Article 10.  Final orders of the court do not, in general, contain such a provision.  One should obviously be included in contra mundum orders – or in final orders which take “Spycatcher effect”.

The OPQ case has the potential to bring about a radical revision in the practice relating to privacy cases.  If followed to what appears to be its logical conclusion it would lead to the end of the twilight wolrd of the “indefinite” interim injunction and its replacement by something clearer and more straightforward.  It is a solution which will, inevitably, be controversial.