Full case report

Giggs (previously known as CTB) v News Group Newspapers Ltd

Reference [2012] EWHC 431 (QB)
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 2 Mar 2012


Summary

Privacy – misuse of private information – CPR 3.9 – strike out – relief from sanction – procedure


Facts

C, now identifiable as the footballer Ryan Giggs, applied for relief from sanction in the form of the reinstatement of his claim against NGN. The claim had been struck out automatically as C’s solicitors had failed to comply with a court deadline. The action against the second D, Ms Thomas had been settled with a statement in open court by her.

C wished to continue his claim for damages and a permanent injunction against NGN for breach of confidence or misuse of private information in relation to an article which was about his relationship with Ms Thomas, but which did not name him. Although not included in the pleadings as they stood, C indicated his intention to claim damages for subsequent publications by third parties many of which did name Giggs.


Issue

Whether C should be granted relief from sanctions under CPR 3.9 and have his claim reinstated.


Held

That relief should not be granted under CPR 3.9 and the action would remain struck out:

(1)If not granted relief it would be open to C to start a new action against NGN, therefore refusal to grant relief would not materially interfere with C’s Article 6 or Article 8 rights.

(2) As NGN say they are neither in a position to, nor intend to, publish further information about the relationship between C and Ms Thomas a continuance would not be a serious interference with NGN’s Article 10 rights.

(3) As presently pleaded the claim for damages could not be said to give rise to any significant award, if any award at all. The article complained of was anonymised and no particulars of how the article could be understood to refer to C are pleaded.

(4) The claim for an injunction has been overtaken by events.

(5) C had been party to two serious breaches – one of the rules of court and the other of an order of the court – in failing to apply to fix a trial date and failing to inform NGN and third parties of the lifting of anonymity.

Tugendhat J also made some clear and generally applicable points regarding the conduct of litigation in such cases:

(1) Failure to comply with Orders of the court and the CPR, to fully inform the court in a timely fashion of all relevant matters including procedural matters, or to inform affected parties where anonymity is lifted are serious breaches.

(2) Parties must consider the Article 10 rights of third parties in actions for breach of confidence and privacy, so as to progress the case in a timely manner and interfere with those Article 10 rights for as short a time as possible. Indefinite extensions should not be agreed between the parties.

 

(3) When considering granting an extension of time, the court must be convinced that the interference with third parties’ Article 10 rights is necessary and proportionate.

(4) Parties should be aware that judges will, and are required to, give reasons public for their interlocutory decisions and should consider what case and evidence they put in – including whether to put in submissions and evidence at all – this light. If a party puts no case before the judge, the interlocutory judgment cannot reflect that party’s side of the story.


Comment

Essential reading for those conducting privacy and breach of confidence cases, with strong guidance given as to how such cases should be managed. The importance of open justice, compliance with the rules of procedure and timely progression of cases where an interim injunction has been obtained were again emphasised.

Also of interest is the judge’s assessment that the settlement between C and Ms Thomas may affect the Article 10 rights of third parties in the light of the Hutcheson v Popdog [2011] EWCA Civ 1580 decision. This is not explored in any detail, but highlights that the issue of whether the Spycatcher effect applies to permanent injunctions is still unresolved.

This judgment brings to an end this litigation, which commenced in April last year and in which a number of judgments have been handed down (see cases listed as “CTB”). Whilst Tugendhat J makes clear that this cannot be seen as a victory for NGN, who stated that they did not intend to publish further details in any case, and who have had the case against them struck out because C’s inaction; nor can it be seen as a victory for C, whose case is now at an end.


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Instructing Solicitors

Schillings for the Claimant, Simons Muirhead & Burton for the First Defendant