Full case report

Goldsmith & Anor v BCD; Khan v BCD

Reference [2011] EWHC 674 (QB)
Court Queen's Bench Division

Judge Mr Justice Tugendhat

Date of Judgment 22 Mar 2011


Summary

Privacy – Injunction – Anonymity order – ‘Super-injunction’ – Article 8 ECHR – Failure to serve proceedings on defendant – Breach of undertaking – Final order


Facts

In December 2008 the Claimants (Cs) were granted interim injunctions against persons unknown prohibiting the publication of the contents of email messages that had been obtained by hacking into their personal email accounts. The interim Orders had anonymised the identities of Cs and prohibited the publication of any information about the injunctions or the proceedings. In the usual course, Cs had given undertakings to issue claim forms as soon as possible and to serve the proceedings upon the defendants when the defendants’ identities became known to Cs. The interim orders were served on, and therefore bound, a number of national media organisations.
In January 2009 Cs discovered the identity of the person who had hacked into their email messages (“BCD”), but did not serve proceedings upon them.
In December 2010 solicitors acting for News Group Newspapers wrote to Cs’ solicitors pointing out that the anonymity provisions in the December 2008 interim orders were no longer necessary. Cs therefore applied for a variation of the interim Orders to lift the anonymity provisions of the Orders and the embargo on the publication of information about the proceedings, and also applied for a final order against BCD.


Issue

(1) Whether the interim Orders made in December 2008 should be varied;

(2) Whether the interim Orders were made in a correct form, in particular with regard to the anonymity provisions and the absence of a return date;

(3) Whether the Court should take action in respect of the Cs’ breach of their undertakings to serve the claim forms on the defendant when his/her identity became known, and if so what action was appropriate.


Held

(1) The interim Orders of December 2008 should be discharged, and a new final Order against BCD made. BCD’s identity should be anonymised because of the potential adverse effects on BCD’s health and well-being if his/her identity were made public.

(2) The derogations from open justice in the December 2008 Orders were properly made because there had been a real danger that, if there were publication of information about the proceedings, the defendants might defeat the purpose of the Orders before the Orders were served on them (by publishing the private information).

However, the Orders should have included a provision for a return date. Had there been a return date, Cs would have been unlikely to overlook compliance with their obligations to the Court. Following G & G v Wikimedia Foundation Inc, there should be a specified return date in accordance with Part 25 para 5.2 in all interim orders, and orders should be drafted so as to have effect for no longer than is necessary and proportionate.

(3) Pursuant to the overriding objective, given that the breach of the undertakings to the Court was inadvertent, the claims would not be struck out, service of the claim forms would be dispensed with and Cs should be allowed to enter judgment against BCD by consent. Cs suffered for their breaches of undertaking by having to incur the costs of the hearing on 17 March 2011.


Comment

The judgment follows a recent judicial trend emphasising the importance of open justice and that any derogations from that principle should be made on the basis of necessity only. Cs’ breaches of their undertakings to the Court had led to the serious consequence that third parties were bound by draconian publicity restrictions for years longer than was necessary. In this case the Judge was forgiving in the face of the failures, but it may be doubted whether claimants in a similar position in the future would be met with similar leniency.


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Instructing Solicitors

Reynolds Porter Chamberlain LLP for Associated Newspapers Ltd as an interested party; Carter-Ruck for Cs; BCD did not appear and was not represented