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Analysis: Privacy cases re-visited, a year on from Super Injunction Spring – Judith Townend

A year on from the introduction of the Master of the Rolls’ Practice Guidance, six privacy injunctions have been discharged, but with the claimant’s anonymity maintained in each case. The British media, however, hasn’t had much to say.

Seven separate privacy cases, with all but one anonymous claimant, against News Group Newspapers – returned to the High Court on Monday 30 July 2012 in JIH v NGN and other cases [2012] EWHC 2179 (QB).

As previously reported on Inforrm, all were discharged with consent, with anonymity retained for the claimants (except for Frederick Goodwin, formerly MNB but whose injunction was varied in 2011, see [2011] EWHC 1309 (QB) (23 May 2011)).

While the injunctions were discharged, Mr Justice Tugendhat maintained that it

“… does not mean that it would be lawful for anyone to publish the information disclosure of which had been prohibited by those injunctions. [23]”

Injunctions may be discharged because there is no longer a threat of publication, or because the claimant has decided not to proceed with the action. But anyone who thinks they know the protected information is not free to report it, as Tugendhat J explained:

“It follows that no reader of this judgment or of the orders can know simply from reading the judgment or order whether or not it would be lawful for someone other than the defendant to disclose the information in question now or in the future. If anyone knows, or believes that they know, what the information in question in any given case may be, then they would need to take advice as to whether publication of that information in the future would be lawful or not. [25]”

Despite the ongoing conditions of anonymity, the press coverage was considerably muted in comparison with the frenzied ‘super injunction spring‘ of last year: a search on Nexis UK*, Google and Journalisted returns articles in only two sources, the Independent and the Guardian. Perhaps the news angle was not deemed interesting enough, or it was pushed off the agenda by the Olympics and other popular summer topics. The most detailed media report is available on PA Media Lawyer (subscription required).

The judgment follows the release of Practice Guidance for Interim Non-Disclosure Orders [PDF], which came into effect from 1 August 2011 and sets out the process recommended to be followed. RPC’s Brid Jordan noted last November that while it was issued as guidance and not as a Practice Direction, it is “expected to followed by all parties and that the courts will refer to it in its determination of future applications for relief“.

As a result, the court reminded the parties to progress the claim in accordance with the CPR, also citing Hutcheson v Popdog Ltd [2011] EWCA Civ 1580, [2012] 1 WLR 782 para 18, in which the Master of the Rolls emphasised para 36 of the Practice Guidance, “which requires a party, who has an interim injunction restraining publication of information, to keep any affected non-party informed of developments in the case,” and paras 37-41, “which require active case management of such a case“.

These latter paragraphs were quoted at par 33 in this latest judgment (author’s emphasis):

37. Interim non-disclosure orders, as they restrict the exercise of the Article 10 Convention right and, whether or not they contain any derogation from the principle of open justice, require the court to take particular care to provide active case management. …

41. Where an interim non-disclosure order, whether or not it contains derogations from open justice, is made, and return dates are adjourned for valid reasons on one or more occasions, or it is apparent, for whatever reason, that a trial is unlikely to take place between the parties to proceedings, the court should either dismiss the substantive action, proceed to summary judgment, enter judgment by consent,…”

Another measure by introduced by the Master of the Rolls last summer was the pilot data collection of the number and type of interim and final injunctions, as well as variations. The first bulletin was published in March 2012 [PDF].

Figures, but not case names, are given in this report. Of the four interim injunctions granted in the period August-December 2011, one had “a super injunction or reporting restriction clause, which prevented publication of the fact that court proceedings had taken place or that an injunction was in existence“. According to the report, “this provision was discharged shortly after having been made“.

This judicial transparency is to be welcomed but it could be improved, by setting out the case names, where they can be disclosed, alongside the figures. At the time of publication, a post on this blog attempted to identify the cases references but it would be better if this was done officially. As recommended in the post, “more detail [should] be given about the individual cases and, insofar as they are the subject of public judgments, these should be identified“.

Because it is the first data collection of its sort, it is difficult to make a year-on-year comparison about the number of cases. But close observers, such as the RPC blog, note that there seems to have been a “sea change” and a decline in privacy injunction applications.

While there is room for improvement, the recent emphasis on active case management and data collection makes the privacy injunction process more open and transparent. The reports and published judgments provide a means of checking secondary coverage and an official source of legal data even when the topic is no longer considered newsworthy.

Previous judgments in cases included in JIH v NGN and other cases [2012] EWHC 2179 (QB)

JIH v News Group [2010] EWHC 2818 (QB) (05 November 2010)
[2011] EMLR 9
[2010] EWHC 2979 (QB) (18 November 2010)
[2011] EWCA Civ 42 (31 January 2011)
[2011] 1 WLR 1645
XJA v News Group
NOM v News Group
[2010] EWHC 3174 (QB) (03 December 2010)
Goodwin (formerly MNB) v News Group [2011] EWHC 528 (QB) (09 March 2011)
[2011] EWHC 1309 (QB) (23 May 2011)
[2011] EWHC 1341 (QB) (27 May 2011)
[2011] EWHC 1437 (QB) (09 June 2011)
ETK v News Group [2011] EWCA Civ 439 (19 April 2011)
[2011] 1 WLR 1827
MJN v News Group [2011] EWHC 1192 (QB) (11 May 2011)
TSE v News Group [2011] EWHC 1308 (QB) (23 May 2011)

*Search: (injunction) AND (privacy) OR (super) OR (anonymity) OR (anonymous) and DATE(>2012-07-28), in UK National Newspapers

Judith Townend is a freelance journalist and PhD researcher at the Centre for Law, Justice and Journalism, City University London, where she is also co-ordinating the ‘Open Justice in the Digital Era’ project. She is @jtownend on Twitter.

Image Courtesy of Sean MacEntee on Flickr.

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