Report of the Neuberger Committee: thorough, thoughtful but not the last word

The report of Lord Neuberger’s Committee on Super-Injunctions – “Super-Injunctions, Anonymised Injunctions and Open Justice” – is a thorough and substantial piece of work. providing a 76 page survey of the law and practice relating to privacy injunction, setting out “Draft Guidance for Interim Non-Disclosure Orders”, a model “Explanatory Note” and a draft “Standard Form Order”.  As noted in our pre-publication post, the Report does not consider issues of substantive law – in his Foreword Lord Neuberger comments that this would have been “inappropriate”.

It does, however, deal fully with the nature of privacy injunctions, the procedural issues and data collection.   The issues discussed are carefully analysed.  The first chapter contains a very useful summary and reiteration of the principles of open justice.  The second deals with “super-injunctions and anonymised injunctions” – rehearsing the basic facts (which have often been explained on this blog) and confirming that, since the beginning of 2010 there have only been two “super-injunctions”.  One of these was overturned by the Court of Appeal (Ntuli v Donald [2010] EWCA Civ 1276) and the other in force for a week for “tipping off” reasons (DFT v TFD [2010] EWHC 2335 (QB)).

The final chapter contains an interesting discussion of the reporting of parliamentary proceedings and the limited protection of the Parliamentary Papers Act 1840.  This discussion has, unfairly but perhaps unsurprisingly, produced a storm of media criticism.

The Report makes a number of important recommendations.  Many of these reiterate and restate clear and established principles – emphasising the importance of open justice and not favouring specialist judges or fast-track appeals.

There are, however, a number of proposed changes to the current procedures.  We draw particular attention to the following:

• The recommendation that Practice Guidance should be issued, setting out the procedure for applying for interim privacy injunctions (to be referred to as “interim non-disclosure orders”).
• The provision of a draft “Model Order” for interim non-disclosure cases.
• The consideration of a data collection system for all interim non-disclosure orders.

Perhaps the most substantial innovation is the requirement that non-parties should be given advance notice of the application hearing (draft Practice Guidance, para 19).  The applicant must first give the non-party an “Explanatory Note” (which may, in appropriate circumstances, be anonymised)(draft Practice Guidance, para 25).  If the non-party gives an irrevocable undertaking to the court then the applicant must supply that non-party with the hearing papers in advance.  A draft undertaking is set out in the “Model Order Guidelines”.

Some sections of the media have been arguing for such a provision for several years.  It is curious that the Report contains no discussion of the two first instance cases where the court has considered the point and has held that this was not necessary (WER v REW [2009] EMLR 304; TUV v Persons Unknown [2010] EWHC 853 (QB)).  In the latter case Eady J considered the costs burden that such a requirement would impose on applicant and concluded:

“I do not think it right that an applicant’s lawyers should have to give prior notification to each and every media group – simply on the basis that they might be interested in the story, or in the private information sought to be protected, if they hear about it. Accordingly, the law should only impose an obligation to notify those who are already believed to have shown some interest in publishing” [26]

The Committee is, in effect, recommending the reversal of this decision (without discussing it and without considering the additional burdens placed on applicants).   An applicant for a privacy injunction in relation to a story which is likely to be interest of to the national press and celebrity magazines will, under this proposal, have to serve more than a dozen “Explanatory Notes” and, if the undertaking are given, the same number of sets of application papers.  The affected organisations would then have to consider the papers served, generating further costs (and delays).  The practical burden is obvious and it is difficult to see why it is necessary to impose it.  It might be thought, for example, that a procedure for “affected parties” to make speedy paper application for variation would provide more effective protection for freedom of expression.

The draft “Model Order” is in similar terms to orders which have been granted in the past, although it does not contain some provisions which have become standard in more recent  times.  It does not, for example, include a “DFT provision”, a reference to public judgment or a proviso to enable information to be used to gather evidence.  It contains no suggested exception for communications with regulators or MPs.  It does not deal at all with recent form of order which has permitted an individual to “tell their story”, provided that intimate information is not disclosed and the claimant is not identified.

Despite the evident care and thought which has gone into the Report it seems unlikely that it will please any of those involved in the current “privacy wars”.  The media and their political supporters want the removal of all privacy injunctions.   Although the increased costs of some of the procedures proposed will, inadvertently, assist in this aim they do not, from the media point of view, go far enough.  Privacy campaigners will, on the other hand, continue to be concerned about the erosion of the Article 8 rights of those whose private lives are of interest to the popular press. Then there is the influence of the social media – which is not addressed in this report – but is relied on as a “self-supporting” argument against privacy protection: because twitterers break the terms of injunctions, they should not be granted.  It seems unlikely that the rational and restrained approach of the Neuberger Committee is going to be the last word.