NEJ v Wood & Anor [2011] EWHC 1972 (QB)

[2011] EWHC 1972 (QB)Venue IN THE ROYAL COURTS OF JUSTICEQUEEN'S BENCH DIVISIONVenue Royal Courts of JusticeStrandLondonDate 13 th April 2011
Before
THE HONOURABLE MR. JUSTICE KING__________
Between
NEJ(Applicant)Helen Wood(First Respondent)PERSON UNKNOWN(Second Respondent)__________Transcribed from the audio tape ofJL Harpham Ltd.Official Court Reporters and Tape Transcribers55 Queen StreetSheffield S1 2DX__________APPEARANCES:MR HUGH TOMLINSON QC instructed by Mishcon de Reya for Applicant for Interested Party: MR RICHARD SPEARMAN QC instructed by Farrer & Co LLPPublic Judgment made available on 22 nd July 2011__________JUDGMENT
[1]This is the return date of the order made by Mr Justice Blake on 9th April 2011 preventing disclosure of private information relating to the applicant. In the form as ordered by Mr Justice Blake, it prevents publication by reference to the confidential schedule, of sexual relationships between the claimant applicant and any woman in Dublin, Ireland in December 2009 and of information of photographs or film taken in Dublin at the time of sexual relationships referred to above.[2]In the form granted, it has provision preventing any publication of any information concerning the facts of the case and individuals involved, save for that containing the order and that in any public judgment given in the action. There is provision for anonymity, and for confidential information in the statements of case, and also for the hearing to be in private and for the restriction on the provision of documents and information to third parties. I do not for present purposes go into the fine detail of the orders made in this respect.[3]The basic facts underlying this application are that the applicant is an actor, well-known to the public. He accepts on the material I have seen that he has had sexual encounters with a prostitute. He is a married man, and he is a father.[4]The named first respondent Miss Helen Wood, who was originally granted anonymity by Mr Justice Blake, is the prostitute concerned. In the order of Mr Justice Blake, there was a second respondent, namely the person unknown who has offered information about the applicant to the publishers of The Sun newspaper. Before me today, Mr Tomlinson QC appears for the applicant and Mr Spearman QC appears for News Group Newspapers Limited, the publishers of The Sun. It is clear that the prostitute concerned is the person who has offered information about the applicant to the publishers of The Sun newspaper. There is no issue on the material before me that she seeks through The Sun newspaper to publish her account, as it is put, of the shared sexual experience with the applicant. She herself does not seek anonymity.[5]Before identifying the crucial issue which arises before me as between Mr Tomlinson and Mr Spearman and minded that I am that the first respondent herself is not before me, I rehearse the basic principles applicable to the grant of this type of order, set out in Section 12 of the Human Rights Act 1998. I start with section 12(1), which provides:
"This section applies if the court is considering whether to grant any relief which if granted might affect the exercise of the convention right to freedom of expression."
Sub-section 3 provides:
"No such relief is to be granted so as to restrain publication before trial unless the court is satisfied the applicant is likely to establish that publication should not be allowed."
I interpose that it is well-established through the House of Lords decision in Cream Holdings v Banerjee [2005] 1 A. C. 253 that to construe "likely" in the sub-section as meaning " more likely than not in all situations" would be to set the test too high. The effect of the sub-section is that the court should not make an interim restraint order unless satisfied that the applicant's prospects of success are sufficiently favourable to justify the order being made in the light of all the circumstances in the case. In general, the threshold the applicant has to cross before the court embarks on exercising its discretion is to satisfy the court he would probably succeed at a trial. Sub-section (4) provides:
"The court must have particular regard to the importance of the Convention right to freedom of expression, and, where the proceedings relate to material which the respondent claims, or which appears to the court to be journalistic, literary, or artistic material (or to conduct connected with such material ) to- (a) the extent to which (I) the material has or is about to become available to the public; or (ii) is or would be, in the public interest for the material to be published; (b) any relevant privacy code."
[6]I turn first to consider whether I am satisfied that the applicant is likely to establish that publication should not be allowed at trial. In my judgment, that threshold is crossed insofar as the proposed publication would identify the applicant and would go into the detail of his sexual encounters with the respondent. My reasoning I can put shortly. I have first to be satisfied that the applicant is likely to establish at trial that the information concerned is private in the sense that it is in principle protected by Article 8 of the European Convention on Human Rights Convention. Put another way, I have to be satisfied that the applicant is likely to establish at trial that the information concerned has the necessary quality of confidence about it, in that by its very nature the applicant has a reasonable expectation that it should be kept private. I am satisfied that the applicant is likely to establish that he has a reasonable expectation that that which he does in his private life by way of sexual encounters albeit with a prostitute, should be kept private.[7]But then of course before I can say that he is likely to establish the publication would not be allowed at trial, I have to consider whether there is any countervailing public interest, likely to be found by the court at trial as being in favour of publication, and likely to outweigh that claim to privacy. It is at this stage that the court has to have in mind the competing rights of the applicant under Article 8, and those, both of the respondent herself and the media, in particular in this context The Sun newspaper, under Article 10 of the European Convention.[8]It is always worth rehearsing what Article 10 says:
"Everyone has the right to freedom of expression. This right should include freedom to hold opinions and receive and import information, ideas, without interference by public authority and regardless of frontiers."
But of course paragraph 2 of Article 10 has the qualification:
"The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties prescribed by law and are necessary in a democratic society……for the protection of the …rights of others, for preventing the disclosure of information received in confidence ….. "
[9]In fact, no one has submitted before me that there is any countervailing public interest, even taking on board the full impact of Article 10, in the full publication of the applicant's identity and the full publication of all the details of the sexual encounter concerned. This is not a case in which it has been submitted that because of any public stance taken by the applicant with regard to his marital status or with regard to issues of morality, that he should be exposed in the public interest as, for example, a hypocrite. I am satisfied on the material before me that there would be no justification for a finding that there was a public interest in such full publication on this or any other basis. This is why I am satisfied that the applicant is likely to establish that the publication should not be allowed, and subject to what I am now going to consider, I am satisfied that in principle the applicant is entitled to an interim injunction designed to prevent his identification and his identification as someone who has been involved in such sexual encounters in private with a prostitute.[10]Mr Tomlinson himself accepts that the respondent herself has an Article 10 right to share with the public her experiences so long as that which is published does not in any way identify the applicant. He accepts that in the interests of the respondent herself in Article 10 terms and indeed of the public generally in Article 10 terms, that there should be some publication of some information concerning her sexual encounters with a person of the applicant's status.[11]The point being emphasised by Mr Tomlinson is rather that the court should be slow to permit any publication which would tend to identify the applicant, and in particular the court should be slow to permit a process of jigsaw identification so that little by little the applicant's identity can be revealed. On the other hand, Mr Spearman has put a strong argument before me that there is a public interest that the media should be enabled to debate in public the general issue of the grant by the courts of this type of injunction the effect of which is to protect the private life of those who have public persona.[12]I accept that which Mr Spearman says to me, namely that there is a live public debate about the justification for the grant of these injunctions which can have the effect of suppressing from public scrutiny the private conduct of public persons, which some might think offend notions of social morality according to one's view of social morality. This is a different point from that which is not being pursued before me in this particular case, namely that there is a public interest in the publication of the applicant's identity in respect of his private conduct, on the basis that it shows him up as a hypocrite in his public presentation.[13]Put shortly, the applicant through Mr Tomlinson accepts that there should be a qualification to the order granted by Mr

Justice Blake in paragraph 1 of the injunction so that the proviso would now read:

"Provided that nothing in this paragraph of this order shall prevent the publication, communication or disclosure of the fact that the respondent had a sexual relationship with a prominent person who works in the entertainment industry and the respondent's account of that relationship."
In the order granted by Mr Justice Blake, that proviso did not appear, the only material proviso being that nothing should prevent in effect publication of any material which before service of the order was already in or that which thereafter comes in to the public domain as the result of national media publication (other than as a result of breach of the order or a breach of confidence or privacy).[14]Mr Spearman seeks an order which would be more particular in the description of the class of person to which the applicant belongs. By way of counter concession, Mr Tomlinson would accept Mr Spearman’s proposed use of the phrase 'a world famous celebrity' and would accept 'a leading actor' as a description. Mr Tomlinson's point however is that to put further detail into the description and to include the fact of the applicant being married and being a father, would go too far and would raise too high a risk of his being identified.[15]As always in a case of this sort, the court is having to balance competing rights and interests. I have already indicated that I am satisfied that the applicant is likely to establish at trial the right to keep private his identity and to keep private the fact of his personal sexual encounters conducted in private. It is perhaps stating the obvious that not only is he likely to establish, as I have found, the reasonable expectation that these matters should be kept private, but the impact of any publication of these matters upon him and his family, who themselves have Article 8 rights, would be significant.[16]Mr Tomlinson fairly emphasises to me that I have to have regard to the way in which such publication even in the form which it is accepted should be published, will be intrusive upon him personally and those who know already that it refers to him. On the other hand, I accept the principle that limitations on the freedom of expression should only be those which are necessary in order to protect the competing rights in this instance of the applicant, and that "necessity" should be the touchstone in a democratic society. I also accept that there is a public interest in a public debate concerning whether injunctions of this sort should be granted.[17]Ultimately, the decision I come to is one of discretion.[18]Mr Spearman did put before me as a freestanding ground for permitting publication, that that which he seeks to be allowed to publish is in fact already in the public domain. He has drawn to my attention articles published today by the Daily Telegraph, but in particular by the Daily Mail newspaper. The Mail article is headed prominently, "Actor wins injunction over private life claims".[19]Mr Spearman prays in aid the general "Spy Catcher" principle concerning that which is in the public domain, namely that the court should not seek to achieve the impossible and prevent further publication of that which is already public.[20]This, of course, is to express the principle too broadly. The Daily Mail have not appeared in front of me, but my provisional view is that that which has been published in the Daily Mail is a breach of the order of Mr Justice Blake in the terms it was granted. Paragraph 1(a) of that injunction, subject for present purposes to immaterial provisos, prevented publication of any information concerning the facts of this case and the individuals involved, including in particular any information identifying in any way or intended to identify the applicant as being the person applying for this order, save for that contained in this order and in any public judgment the court has given in this action. This article on its face would appear to amount to publication of information concerning the facts of this case going beyond the publication allowed for in that Order[21]This provisional view leads me, despite the strong submissions of Mr Spearman, not to put any significant weight in coming to the decision I have, on the fact of this publication by the Daily Mail. If it were the case that a publication in breach or apparent breach of an existing court order would of necessity compel a court on the return date of the order, to the conclusion that because the dam has been breached there is nothing the court can do to repair the breach, this would be a sad day for the rule of law. The court should not readily condone such breaches of court orders, if ultimately of course it be established there have been such breaches. I stress of course that my view on the question of breach is only a provisional one.[22]In my judgment, there has not been such widespread publication of that which appears in the Daily Mail today as to lead to the inevitable conclusion that there is no justification either in law or in terms of practicality in continuing the order of Mr Justice Blake. I much prefer to approach this case on the basis I have, which is to assess and weigh against each other the competing rights of the applicant to privacy (and indeed those of his family ), and those of the respondent and the media in freedom of expression.[23]Ultimately what I have concluded is that the respondent and the media should be allowed to publish the fact that the respondent has had a sexual relationship with a leading actor, and indeed, if they so wish, to include the expression of his being a world famous celebrity. I will also allow publication of the fact that the actor is married and a father. It seems to me that this is material to the public debate about the class of person who is seeking these injunctions and the status they are seeking to protect when preventing the publication of private sexual encounters. In many ways, the debate before me has been about the extent of the particularity which is justified, in the description which is to be published of the class of person from whom the applicant comes.[24]I do not consider that the risk of the applicant being identified by publication of the fact that he is a leading actor, married, and a father is such that this should lead me to conclude that it is necessary in Convention terms for the Press to be prevented from publishing to the extent I have indicated.[25]This deals with the main issue between Mr Tomlinson and Mr Spearman, but I should record that I am satisfied that there is justification for the continuation of the other aspects of restrictions on open justice contained within the order of Mr Justice Blake and then the draft order before me.[26]I repeat that those restrictions do not now include restriction on the publication of the identity of the respondent. There is however justification for anonymity of the applicant since without such an anonymity order the purpose of the order I now grant will be wholly frustrated unless of course this court chooses not to give any sort of judgment publicly accessible. As has been said with authority in the Court of Appeal, the better preference must be for an anonymity order coupled with a public transcript which allows the public to understand why an order has been made, and indeed to identify the class of person to whom the applicant does not belong, for example a politician or other holder of public office, and to enable the public to understand what is not being restricted, for example publication of wrongdoing in public office.[27]I am also satisfied that there is justification for the restrictions on access to the court file and for orders restricting the provision of documents and information to third parties and general restrictions on the preservation of the hearing papers. I have already in this hearing ruled that this hearing itself should be heard in private and that there should be no reporting of the same, save for the reporting of any public judgment of the court, and the order itself. I have had regard in this context to the provisions of CPR Part 39.2 sub-paragraphs 3(a), (c) and (g). In the round, these restrictions are justifiable in order to prevent the purpose of this order being frustrated.[28]For all these reasons, I will continue the injunction in principle, but subject to the provisos I have indicated and subject to any other submissions being made to me. __________