Reference:  EWCA Civ 280
Court: Court of Appeal, Civil Division
Judge: Sir Anthony Clarke MR, Dyson and Thomas LJJ
Date of judgment: 12 Mar 2007
Summary: Contempt of Court – Injunctions – Standard of Proof – Private hearings - Civil Procedure Rules (r.39.2) - s.12(1)(e) Administration Of Justice Act 1960 : s.2 Contempt Of Court Act 1981
Instructing Solicitors: BBC litigation department for the BBC; Treasury Solicitor for the A-G
The BBC appealed the decision of Swift J to refuse to discharge the remaining parts of an order originally granted by Wilkins J in favour of the A-G following a variation of the order. The injunction initially prevented the BBC reporting a document that had come to light during the “cash for honours” investigation carried out by the Metropolitan Police. The injunction also prevented the reporting of any argument put forward by the police or A-G during legal proceedings.
Following coverage by other media organisations, the A-G agreed to vary the injunction so that it applied only to the legal argument. The BBC applied for the injunction to be discharged. The judge treated the matter as an application by the A-G to vary the injunction under CPR r.39.2(3)(c) and (g) and held that the test that she had to apply was different to that applied by the judge making the wider injunction, who had had to be satisfied to the criminal standard whether publication would infringe the Contempt of Court Act 1981 s.2.
The judge refused the application and held that it was in the interests of justice for the legal argument, which went further than the subject matter of the document, to remain private.
(1) Whether the judge at first instance had erred in holding that the threshold adopted by Wilkie J when making the wider injunction was significantly higher than the test that should be applied under CPR r.39.2(3).
(2) Whether an order made pursuant to CPR r.39.2(3) was concerned only with whether the hearing was to be in public, or whether a direction that a hearing under r 39.should take place in private would mean that any publication of proceedings at the hearing was a contempt of court.
Allowing the appeal:
(1) The application of a less onerous standard by Swift J was incorrect. The A-G was seeking to maintain part of the original injunction, so the same standard of proof applied as when the original injunction was sought. If, contrary to that view, the Judge had applied the correct test her decision on the facts was plainly wrong. Once the injunction that related to the document itself was discharged there was no longer force in the argument that without the injunction there was a substantial risk that the course of justice would be impeded or prejudiced.
(2) It is possible that some orders under CPR 39.2 do not necessitate the application of the criminal standard of proof. The test used was to be determined by the facts of each individual case.
This judgment is noteworthy as authority that once an order for injunctive relief has been has been discharged, it is likely to follow that reporting of the legal argument should be permitted as long as the legal argument did not stray far outside the parameters of the subject matter of the injunction.