The privacy injunction is back. This seems to be the message from the courts in 2015 and is supported by anecdotal evidence from practitioners. Lawyers are now being regularly instructed in potential privacy injunction cases, with several in play almost every weekend. While it remains the case that most of the threatened applications are resolved without court hearings there has been a clear increase in contested cases in court in 2015.
According to the latest available statistics – the Civil Justice Quarterly of March 2015 [pdf] – there was only one privacy injunction application in 2014. In contrast, there have been at least four such applications in 2015:
- YXB v TNO on 19 February 2015, discharged for non-disclosure on 25 March 2015 (YXB v TNO (No 2)  EWHC 826 (QB), see the Inforrm post).
- ZYT and BWE v Associated Newspapers  EWHC 1162 (QB)) (see Inforrm case comment)
- AMC v News Group Newspapers( EWHC 2361 (QB)) (see the Inforrm case comment)
- Dedicoat v News Group Newspapers, 27 October 2015.
The applications in XYT and AMC were successful, those in YXB and Dedicoat were not.
Anecdotal evidence suggests that applications have been listed on a least half a dozen further occasions before they were then compromised.
The reasons for this increase in privacy activity are unclear. There are perhaps two obvious ones:
- Increased competition between tabloid newspapers, particularly now that the Sun has come out from behind its paywall.
- The fading of the self-restraint of newspapers which resulted from the Leveson Inquiry. In other words, as the “Leveson effect” fades it is back to business as usual including, in particular, old fashioned “kiss and tells”.
The procedure for applying for privacy injunctions is set out in the Master of the Rolls 2011 “Practice Guidance” [pdf]
There are a number of important practical considerations to be borne in mind for claimants considering applications for such injunctions:
- Notice should, in practice, always be given to an intended media defendant and to non-media defendants save where there is evidence that there is a real prospect that a respondent would, if notified, take steps to defeat the purpose of the order (Practice Guidance, para 21).
- Evidence should, unless there are strong practical considerations making it impossible, be provided by the claimant him or herself and by anyone else whose Article 8 rights are likely to be adversely affected by publication (see Terry v Persons Unknown  EWHC 119 (QB)  and ).
- The evidence – from either the claimant or the solicitor – should specifically address the derogations from open justice being sought (hearing in private, anonymity, protection of hearing papers).
- The witness statements can be in a form where all the private information is included in a “confidential exhibit”.
- The application should normally be supported by a Skeleton Argument which should specifically address the test in section 12(3) of the Human Rights Act 1998 – in other words it should be explained why the applicant is likely to establish at trial that publication should not be allowed.
- If it is intended to serve any third parties with the injunction – a practice which has, in recent years become quite unusual – the third party must ordinarily be served with advance notice of the application once the third party has provided an “irrevocable written undertaking” to the court that the hearing papers will only be used for the purposes of the proceedings (there is a form of undertaking attached to the Practice Guidance).
- The order sought should follow the form of the Model Order attached to the Practice Guidance [doc] – with any changes to this order being specifically drawn to the attention of the judge at the hearing of the application.
- It is usual to make the application in “An Intended Action” – seeking permission to issue the claim anonymously from the Judge on the application and giving an undertaking to issue a claim form the next working day. If the application is made during court hours it will be necessary obtain permission to issue the claim form anonymously (and usually to short serve the application) from the Practice Master.
- If the application is being made outside normal court hours, the claimant’s counsel or solicitors should complete an “Out of Hours Application” form [doc] – which must be filed the next working day along with a fee of £50.
- Where it is not possible to arrange a hearing, application can be made between 10.00 a.m. and 5.00 p.m. weekdays by telephoning the Royal Courts of Justice on 020 7947 6000. Security will then take details and pass them to the duty Judge’s clerk. Privacy injunction applications can be made to either the duty Queen’s Bench judge or the duty Chancery Division judge.
Sara Mansoori and Lorna Skinner are barristers practising from Matrix Chambers in media and information law.