After a weekend in which privacy injunctions continued to dominate the headlines, yesterday morning saw further developments in the privacy case brought by Sir Fred Goodwin against News Group Newspapers [2011] EWHC 1309 (QB). In a judgment handed down in the High Court on Monday 23 May 2011, Tugendhat J gave his reasons for refusing to discharge the full injunction obtained by the claimant at an earlier hearing. In so doing, the Judge rejected the suggestion that there was a credible public interest argument to support the lifting of the injunction at this stage. The Judge also took the opportunity to highlight and criticise some significant factual inaccuracies that have accompanied some media reports of the case.

Facts

On 9 March 2011 Sharp J made an order prohibiting the publication of information about a sexual relationship between the claimant (Sir Fred Goodwin, the former Chief Executive of the Royal Bank of Scotland) and a female colleague at the bank. The order also prohibited the identification of the claimant’s identity, including a term prohibiting publication of the fact that the individual applying for the injunction was a “banker”.

On 19 May 2011 Lord Stoneham asked a question in Parliament on behalf of Lord Oakeshott identifying Sir Fred Goodwin as the person who had obtained the injunction. He also reported the fact that the order covered the details of an alleged affair that Sir Fred had had with a former colleague. If true, said Lord Stoneham, this would represent “a serious breach of corporate governance and not even the Financial Services Authority would be allowed to know about it”.

In the light of this development the defendant, News Group Newspapers, applied to discharge the injunction in its entirety. MGN Ltd and Associated Newspapers also intervened in support of that application. The newspapers argued that the publication of all details of the case was now in the public interest.

The claimant did not oppose a variation of the injunction so as to permit his identification as the applicant; however he argued that the parts of the order that prevented publication of the identity of the woman in question and details of the relationship (other than the fact that she was a work colleague) should remain in force. The lady herself was not notified of the application and consequently had no opportunity to give evidence or make submissions to the court.

Judgment

On 19 May 2011 Tugendhat J announced that he would vary the injunction to permit identification of the claimant but that the other restrictions on publication would remain in place. In view of various earlier press reports, the Judge also clarified a number of issues for the benefit of the journalists who were present in court. First, he explained that no “super injunction” had ever been applied for or ordered in this case. Secondly, none of the injunctions were intended to prevent disclosure of any information to the Financial Services Authority or to any other regulatory body. Counsel were all agreed that if anyone intending to make such disclosure was left in any doubt about their ability to do so, the order would have been varied accordingly. Thirdly, the argument that there might have been a breach of the corporate governance code, as had been suggested during the proceedings in Parliament, had been raised for the first time the day before the hearing. When asked by the Judge whether anyone had asked RBS, Sir Fred Goodwin or the lady concerned about compliance with the code, counsel for the newspaper admitted that they had not. Fourthly, no injunction had ever prohibited anyone from calling Sir Fred Goodwin a banker. The injunction had prevented publication of the fact that the person who applied for the injunction was a banker. This restriction was necessary, since if the applicant was described as a banker his full identity would probably be revealed, thereby defeating the purpose of granting him anonymity.

On 23 May 2011 Tugendhat J gave his full reasons for continuing most of the injunction. After recounting the factual background, Tugendhat J began his judgment by highlighting numerous inaccuracies in press reports about the case. He made specific reference to the parliamentary comments of Lord Stoneham, saying that:

“If the words attributed to Lords Oakeshott and Stoneham are correct, then these reports disclose a fundamental misunderstanding on the part of them, and on the part of many other commentators, of the facts of the present case.”

Judge then quoted from an article that was published on the Telegraph website under the headline “Lord Breaks Superinjunction on Fred Goodwin”. The Judge criticised the numerous “inaccuracies” and “misleading statements” contained within that article. The article had erroneously stated that an injunction had been made by the court which was “so strict that it prevents Sir Fred Goodwin being identified as a banker”. It also inaccurately claimed that “super-injunctions – under which even the reporting the existence of the injunction is banned – are increasingly being used by powerful media corporations and wealthy individuals to stop the media from publishing information”. In fact, as the Committee chaired by Lord Neuberger MR recently reported, only two super-injunctions have been granted in the last year and a half, one of which was overturned on appeal and the other of which lasted for just seven days.

Tugendhat J then turned to consider the public interest arguments raised by the newspapers. As regards the argument about Sir Fred’s compliance with the RBS code of conduct, Tugendhat J rejected this on the basis that:

“Courts of law act on evidence, and only on evidence. The court cannot act on speculation…When the court is provided with no evidence of the particular facts, the court cannot find a breach of corporate governance has, or even may have, occurred.”

In the present case there was simply no evidence before the court to suggest that there was a public interest in publishing a report that either Sir Fred Goodwin or his female colleague had breached the bank’s code.

In addition, Tugendhat J added that it was a requirement of justice that “the court should not make a finding adverse to a person in circumstances where that person has been given no warning of the case which is advanced against him or her”. In the present case the newspapers had not given the claimant or the woman any notice about the proposed new public interest argument. This was therefore a further reason for refusing to discharge the order at this point.

A second public interest argument was also initially advanced by the newspapers. They submitted that, given what had reportedly been said in Parliament, it would now be in the public interest for all information about the relationship to be published, including the name of the woman, the duration of the relationship and details about her job at RBS. In response to this suggestion, Tugendhat J noted that at an earlier hearing the defendant had taken a somewhat different approach when it told the court that: “The identity of [the lady] is not of significance for the story, nor indeed is the fact that she is an employee of the bank…the issue is pure adultery overlapping the [ABN AMRO] deal”.

Ultimately, however, the newspapers did not pursue this public interest argument after conceding that the woman (who had not been notified of the hearing) should have an opportunity to make representations to the court before any variation of the order was made which affected her or her family. In any event, Tugendhat J said that even if proper notice had been given to the individuals concerned, the newspapers’ public interest argument remained “weak”:

“There is no public interest in the publication of misinformation, or in speculation as to matters damaging to individuals when those matters have not been the subject of any investigation, and are unsupported by any evidence. I repeat that the [earlier orders] did not prevent anyone from carrying out any investigation or from giving information to the FSA or any other person responsible for investigating the affairs of RBS.”

Comment

Tugendhat J’s judgment provides a timely reminder of the importance of accuracy on both sides of the privacy debate. It is ironic that some of the most passionate advocates for the uninhibited exchange of information have littered their arguments with information which is untrue or seriously misleading. Yesterday’s judgment shows that broadsheet newspapers are not necessarily immune to this practice.

The decision of several parliamentarians to use parliamentary privilege to disclose material protected by court injunctions has important constitutional implications. It is imperative, therefore, that such decisions are taken on the basis of an accurate and complete understanding of the facts. Regrettably, Tugendhat J’s judgment also suggests that this may not have happened in present case.

The correct balance between privacy and free expression is a question of fundamental importance to any modern democracy. Inaccurate reporting obscures the issues, frustrates attempts to reach a reasoned consensus and makes sensible dialogue all the more difficult. At present, rational voices risk being drowned out in a cacophony of indignant outrage. The media would (rightly) not tolerate factual inaccuracies in court judgments on important legal matters. Yesterday’s decision shows that the courts will expect similar standards when it comes to reporting on those judgments.

Edward Craven is trainee barrister at Matrix Chambers.