In a judgment handed down on Monday 30 July 2012 (JIH v NGN and other cases [2012] EWHC 2179 (QB)) Mr Justice Tugendhat noted that seven privacy injunctions granted against News Group Newspapers in 2010 and 2011 had been discharged by consent.  In each case, the anonymity of the claimant was retained.  Agreements to discharge the injunctions had been prompted by Case Management letter from the court.

The case arose as a result of letters sent out by the Court directing that 6 interim privacy injunctions be listed for a joint CMC.  One other case, NOM v News Group, was listed voluntarily with the others.

The six cases all concerned interim privacy injunctions granted between August 2010 (JIH) and May 2011 (MJN and TSE).   Three of the cases had been the subject of appeals – there were judgments in JIH and ETK and an agreed disposal by consent in Goodwin.   In most of the cases no Particulars of Claim had been served, the parties have agreed general extensions of time.  The judge noted that

“It is a feature of these cases that, although it did make much publicised, but unsuccessful, applications on other grounds, the Defendant did not apply to the court to strike out the claims, or discharge the injunctions, on the grounds of the Claimants’ non-compliance with the CPR. The effect of its omission to enforce its rights in this way has been that the time has never come when it had to serve a defence. So there is nothing on the public record to show what defence it might have raised, or, if such be the case, that it had no defence to the claims” [5].

After the Court sent out letters listing CMCs the defendant, NGN, indicated that it had no “present intention” of publishing the information covered by the orders.  The parties in each case agreed that the interim injunctions should be discharged but that the other other provisions in the orders, in particular, those providing for anonymity should remain in force.  The parties also agreed that the actions should be stayed.

The judge had to consider whether to continue the order for anonymity.  The claimants submitted that it was necessary for the anonymity orders to be continued, in particular, because

“the public judgments contain information the publication of which the claimants sought to prohibit by bringing these actions. If the anonymity orders were now discharged, then the purpose of the actions would be defeated” [28].

The judge agreed that the anonymity orders should remain in force for the reasons submitted by the claimants [31].  He also noted that

“The fact that the various injunctions granted in these actions have been discharged does not mean that it would be lawful for anyone to publish the information disclosure of which had been prohibited by those injunctions”. [23]

The judge went on to point out that the Model Order – granting an injunction until “trial or further order” – assumed that claimants would comply with their obligations under the CPR to progress actions to trial or that defendants would apply to strike out claims if this did not happen.  If this did not happen and both parties allowed the order to run indefinitely then the court had to intervene of its own motion as had happened in these cases ([36]).

Finally, he said that, in future injunctions should not be made “until trial or further order” but should be time limited – for example to the hearing of a CMC (see EWQ v GFD [6]).  In each case, the parties should “make appropriate provision in the draft order, and draw the point to the attention of the judge” [37].

This last act of “super-injunction spring” has attracted very little media comment.  There was a news report about the decision in the “Guardian” but the case has not been mentioned in the newspapers which spent so much time campaigning against the original injunctions when they were granted.