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    Thursday, 21 April 2011

    The advantage of buying ink by the barrel: thoughts on one recent privacy injunction

    In paragraph 24 of his recent judgment in OPQ v BJM and CJM [2011] EWHC 1059 (QB), Mr Justice Eady speculated that the various newspaper groups that withdrew their opposition to the contra mundum order sought by the claimant did so having been provided with more full evidence on the likely impact of publication on the health and mental well-being of the claimant and various members of his family. He surmised that they saw the sense and justice of what was proposed.

    Perhaps the judge is too generous of spirit. An alternative explanation is that the newspapers had determined instead to fight the battle on a different front. A sensible, strategic choice for them no doubt. After all, why would anyone seek to contest a matter in a court, where evidence is weighed and a balance struck in full awareness of the law and of the facts, when on the pages of your own newspaper and website you can slant a story to your own advantage, abstract from the reality, and never need fear that a contrary view will be presented (1, 2, 3). Having done its utmost to emasculate the law of libel, it seems that the Press lobby is moving on to its next major target. They're back on the case of the 'Muzzler-in-Chief'.

    As always with these stories, there is more than meets the eye. Unusually in this instance, the case was shortly to move to a final determination with the award of a permanent injunction (in fact, in this case the rubber stamping of a settlement reached between the parties). More often, temporary injunctions effectively become permanent as claims are not pursued to a final hearing after publication has been pre-empted. A temporary injunction had been granted, and its operation extended by virtue of the Spycatcher principle from the blackmailing defendants to a range of newspaper organisations.

    In normal circumstances, orders made by the court – whether at the interim or final stages – bind only those persons to whom they are addressed. The ‘Spycatcher principle’ ensures, however, that any person on whom notice of an interim order is served will be – in effect – bound by its terms. This situation arises indirectly. As explained by Mr Justice Gray in Jockey Club v Buffham:

    the claimant in a confidence action enjoys … a windfall consisting in protection pending trial against invasion of his right of confidentiality by third parties. But the reason for the existence of that windfall is the need for the Court to be able to enforce, through the machinery of the law of contempt, the object for which the interlocutory injunction was granted and not to protect the confidential information as such([2002] EWHC 1866 (QB), at [26]).
    Hence, the third party is not bound by the order itself. Rather, the rules of contempt of court operate to ensure that the third party cannot publish information covered by the injunction. To allow third-party publication to occur would frustrate the aim of the court in seeking to protect the integrity of the instant proceedings until a full trial can be convened and concluded.

    Following from this, and herein lies the claimant's problem in this case, it is logical that the Spycatcher principle does not apply to final injunctions (interestingly, at [9], Eady J indicated that this position is soon to be considered by the Court of Appeal). At that point in time, there is no longer any need to preserve the status quo pending a trial. The only way that coverage of the injunction could be extended to parties other than the named defendants would be to award a final injunction contra mundum (against the whole world). This is particularly important in cases where one is moving from an interim injunction to a final order because those media organisations that have been covered by the Spycatcher principle while the case is ongoing will know (at least some of) the details and would be free to publish once the interim injunction is lifted in favour of the final remedy.

    Given that the judge had concluded that the ultimate balancing exercise that involved an intense scruinty on the facts of this case came down in favour of protecting the privacy of the claimant and the interests of the family members over the right to freedom of expression of (a) the blackmailing defendants and (b) media organisations generally, AND GIVEN that the media did not contest this, it would seem that the award of the final injunction contra mundum was entirely appropriate. To do otherwise would be plainly ridiculous and unjust, and no amount of self-serving, obfuscatory verbiage from the media can change that.

    That said, don't hold your breath waiting for the Press to let facts get in the way of a good rant...