Full case report
Gold v Cox (No.2)
Reference  EWHC 367 (QB)
Court High Court (Queens's Bench Division)
Judge Tugendhat J
Date of Judgment 24 Feb 2012
Confidentiality – misuse of private information – interim injunction – adjourned hearing – form of proviso to injunction – burden of proof
On 15 February 2012 Tugendhat J adjourned the hearing of the Cs’ application for an interim injunction preventing the publication of private and confidential information concerning C1 on the ground that D2 was abroad and wished to participate in the hearing of the application. He imposed an interim injunction against both Ds pending the adjourned hearing. A report of his judgment following that hearing can be found here.
By the time of the adjourned hearing, both Ds had indicated that they consented to the grant of a final order.
The draft final order put before the court was substantially in the form of the Model Order in the Practice Guidance issued by the Master of the Rolls but Cs argued that the following wording which did not appear in the Model Order ought to be appended to the public domain proviso to the injunction:
“(For the avoidance of doubt, in the event that a Defendant wishes to rely on this [public domain] proviso in response to a claim that she has breached this Order, the burden will be on that Defendant to establish that the relevant information was in fact in the public domain in England and Wales at the material time as the result of publication in the national media (other than as a result of a breach of this Order or a breach of confidence or privacy) on the balance of probabilities).”
In other words, if one of the Ds was charged with having breached the Order by publishing the relevant private or confidential information, it would be for her to demonstrate, if she could, that she was not in breach of the Order because the information in question was already in the public domain.
– Should a final order be granted?
– If so, on what terms? In particular, should it include the proposed gloss on the public domain proviso?
Final order granted, but the proposed gloss on public domain proviso would not be included. The burden of proving a contempt of court for breach of a court order lay squarely upon the person alleging the disobedience and it was for that person to establish that the order had been breach (i.e. in the present context, if appropriate, that the information in question had not been in the public domain at the relevant time). As such, the proposed, novel, wording should not be included as it tended to reverse the burden of proof.
The judge observed that the court should not grant (even) a final non-disclosure order simply because the defendant had consented to it. This was because a final injunction of this sort, as in the case of an interim injunction, was capable of affecting the Article 10 rights of persons who were not party to the proceedings. Accordingly, notwithstanding consent, the court still needed to considered any points put before it which could be said to militate against the granting of the order sought.
The judge also explained why he regarded it as for the person alleging a breach of non-disclosure order to show that the information in question had not been in the public domain if a contempt was to be found, rather than for the alleged contemnor to rely on ‘public domain’ as a defence to the charge of contempt.
Henri Brandman & Co for the Cs
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.