One aspect of the long running, international litigation between Elena Ambrosiadou and Martin Coward has finally come to an end with Mr Coward agreeing to submit to a permanent injunction and to pay £50,000 in damages to settle the privacy proceedings brought against him by his former wife. Ms Ambrosiadou’s Press Release and the Statement in Open Court can be read here.
The parties agreed to settle the claim and for a statement in open court to be read, however they were unable to agree on the final form of the Order which was therefore the subject of a recent judgment by Mr Justice Tugendhat ([2013] EWHC 58 (QB)). The issue between the parties which the Court needed to determine was whether a specific provision ought to be included in the Order to have the effect of binding third parties (i.e. persons other than Mr Coward who were not parties to the action).
The established principle set out in Jockey Club v Buffam is that whereas interim injunctions bind third parties (the ‘Spycatcher principle’), the same is not true once interim injunctions become final injunctions. However doubt was cast upon this principle by the Master of the Rolls in Hutcheson v Popdog Ltd [2012] 1 WLR 782 who, having referred to the Jockey Club case, stated:
“…it would be wrong to end this judgment without making the following points:…(b) …it cannot be safely assumed that the conclusion in Jockey Club [2003] QB 462, that the Spycatcher principle does not apply to final injunctions but only applies to interim injunctions, would be approved by this court…”
Ms Ambrosiadou’s privacy claim arose as a result of Mr Coward having sent a journalist working for the Daily Telegraph a 20-page court document served by him in family proceedings that were taking place in Greece. This document contained information about Ms Ambrosiadou’s personal and family life and information about their son.
Mr Coward subsequently sent a copy of the same Court document to over 50 organisations – most of them media organisations. The Court document had been redacted to blank out the personal and family information. Unfortunately, it was possible to restore these blanked out passages using an easily available piece of software. Ms Ambrosiadou immediately applied to prevent publication of the information and the matter ultimately went before the Court of Appeal ([2011] EWCA Civ 409) which held that the redacted material in the document:
“does contain information in respect of which the claimant and the boy had a reasonable expectation of privacy, and Article 8 of the Convention is accordingly engaged” [34]
The fact that it had been released already to the Daily Telegraph in an unredacted form and had been sent to numerous organisations in a form which could easily be read did not render the information “so generally accessible” so that it “cannot be regarded as confidential” (see Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282C).
In relation to the settlement Order Ms Ambrosiadou asserted that, because the Court of Appeal’s decision, the court was obliged to give her and her son protection by an injunction pursuant to its obligations as a public authority under the Human Rights Act s.6 not to act incompatibly with her and her son’s rights to respect for their private life under Article 8. The court had power to make an Order binding on third parties under s.37(1) of the Senior Courts Act 1981 and she claimed that this should be done via a penal notice.
The Court did not agree. It noted that there was no threat to publish the information by any organization who held it. Moreover it held that there was no real risk that any third party would publish information which the Court of Appeal had made plain was private and confidential [27]. The judge observed that if there was any doubt about the unlawfulness of such an act, a third party would have the benefit of his judgment which made the position clear [29]. Accordingly an order binding third parties was not necessary or proportionate.
Comment
This was a case where the parties agreed to submit to a final injunction in settlement of the claim, however the facts were unusual because the Court of Appeal had already determined that the information in issue was private and confidential. In such circumstances it would be highly unlikely that a third party would choose to publish it. What of the case where the parties agree – perhaps for commercial reasons – to a final injunction on a privacy claim without any determination on whether the information is in fact private and confidential? Following the logic of this case, the claimant would need the additional protection of an order binding third parties as it would not be clear that publication by them would be an unlawful act. A claimant would probably see such a wide Order as being advantageous – and necessary if Jockey Club v Buffham is good law. A non-media defendant would not necessarily have any interest in opposing it. The Court would be left in the unenviable position of having to carry out the balancing exercise of determining whether such an order was necessary or proportionate itself, as unrepresented third party interests would be at stake.
There is then the complicated issue of ‘threatened publication’ and whether such a threat can be implied whenever ‘newsworthy’ information is in the hands of the media and it refuses to provide an undertaking not to publish. Some argue that such a threat must necessarily exist when the information is in the hands of body whose role is to publish and it refuses to confirm it won’t do so; others maintain that a positive threat must be made (relying on the well-known: “no one can obtain a quia timet order merely by saying “Timeo””). The opportunity to determine this matter arose in the case of Hutcheson v NGN & others [2011] EWCA civ 808, between the Claimants and MGN & ANL, but because the injunction appeal failed it became academic and remains to be decided.
Sara Mansoori is a member of the media information team at Matrix Chambers.
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