Court makes final order as parties agree settlement in “celebrity threesome” injunction case. PJS v News Group Newspapers – Nick Dyson

Following the Supreme Court’s decision on 19 May 2016 to uphold the PJS injunction preventing the media from naming the celebrity and their partner involved in an alleged threesome at the end of 2011, the High Court has approved an agreed final order in the action for breach of confidence and misuse of private information ([2016] EWHC 2770 (QB)).

Background

It is alleged that PJS had an extramarital affair with another couple four years ago. In January of this year the couple approached the Sun on Sunday and gave details to reporters about the relationship. Having planned to publish the story, the paper contacted PJS’s lawyers triggering a line of decisions throughout the year.  The Court of Appeal and Supreme Court’s decisions were covered on the Injunctions blog here and here.

Settlement reached

On 4 November 2016, in a judgment which brings the saga to a close, Mr Justice Warby agreed to make the order, by consent, without a hearing. Whilst accepting there was no need for a hearing, Mr Justice Warby outlined three reasons for giving a public judgment:

1. To ensure that the principle of open justice is respected and that derogations from open justice, as are being granted, are publicly explained. Dealing with the application “on the papers” but with a public order and judgment, Mr Justice Warby considered this struck an appropriate balance between the competing rights.
2. It was appropriate for the conclusion of the case to be marked by a short public judgment recording that the case has come to an end by agreement given the great deal of publicity that the case attracted.
3. It was right for the court to make the position public itself where a number of third parties have been served with or notified of the injunction, albeit that the claimant has an obligation to ensure that such persons are kept informed.

The Tomlin order contains two operative provisions. Firstly, that NGN pay a specified, confidential, sum in full and final settlement of PJS’s claim for damages and for costs.  Mr Justice Warby commented, “I see no reason not to make an order for payment of the agreed sum. There is no reason not to allow the parties to keep the figure confidential“.

Secondly, NGN has undertaken not to use, disclose or publish certain information and to remove and not republish certain existing articles. This also extends to not publishing any information which identifies or is liable to identify PJS as a party to this action, including identifying PJS’s partner or certain other parties.

Additionally, there are two allied provisions.

Firstly, no non-party shall be provided with a copy of the confidential schedules to the order, the statements of case, or confidential exhibits without further order, which is only to be made on notice. Again Mr Justice Warby commented, “I am satisfied that the other restrictions on access to the court file are necessary to ensure the effective protection of the claimant’s private life rights“.

The second relates to anonymisation of PJS and PJS’s partner as well as three third parties “with whom the claimant has had a relationship and/or sexual encounter“.  Mr Justice Warby considered that the anonymity provisions for PJS and PJS’s partner remain appropriate since any link of PJS to the information, now publicly known, would defeat the purpose of the injunction and the undertakings.  Further, the anonymisation of the three third parties, rather unoriginally called AB, CD and EF, was a justified incursion into freedom of expression for the protection of PJS.

In a nod to privacy, Mr Justice Warby added that, in his judgment, the rights under Article 8 of AB, CD and EF would prevail over the right to freedom of expression. As such this order was justified under section 6 of the Human Rights Act 1998, whether or not the third parties also fall within the terms of Rule 39.2(4) of the Civil Procedure Rules.

Reaction

From kiss and tell to kiss and make-up, while this agreement is less likely to attract ferocious levels of public attention, the result is important nonetheless. Anonymisation may seem a redundant tool for parties when a simple online search will likely reveal all their identities, but this judgment highlights the importance of doing so in the interests of maintaining the privacy of the claimant.  Whilst the theme of Mr Justice Warby’s judgment is one of balance, this could be considered an arm on the shoulder of privacy over freedom of expression.

As expected, general reaction remains polarised. The Guardian reported that Dr Evan Harris, of the campaign group Hacked Off, praised the agreement as a “massive climbdown” for The Sun on Sunday, though noted his concerns for the vast majority of press victims with much shallower pockets who would be unable to challenge large newspaper groups.  Conversely, Bob Satchwell, executive director of the Society of Editors said, “The circumstances surrounding this case must leave the public baffled“.  He added, “Open justice is a key principle of any mature democratic society. It should not be a plaything for individuals and expensive lawyers“.

This post originally appeared on The Injunctions Blog and is reproduced with permission and thanks