Reference:  EWHC 1705 (QB)
Court: High Court, Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 20 Jun 2013
Summary: Privacy – injunction – undertakings – return date – progress of action
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Instructing Solicitors: Daryl Ingram & Co for C; Teacher Stern for D
C was an elderly solicitor and D was a younger woman with whom he had had a relationship. The hearing was the return date of a 24 May application, without notice to D, for a non-disclosure injunction. The application was granted to restrain dissemination of private and confidential information about the parties’ relationship, and communications with family members.
The application was granted without notice as D’s response to communications suggested that, with notice, the purpose of the application might be defeated. Anonymisation and sealing of the court file were ordered by the J, being necessary in the interests of justice.
D was represented at the hearing and had made a witness statement raising disputes of fact, and complaints of her own against C who she alleged had himself threatened to reveal her private information. C agreed that these complaints should be considered in spite of the lack of an application notice from D.
Proceedings were adjourned so that the parties could agree an order.
Where a draft order is submitted to the court which includes undertakings by both parties, should it provide for directions or a time limit on the undertakings?
Making the order substantially in the terms submitted:
Both the Practice Guidance and authority indicate that interim non-disclosure orders will not be made unless they provide for trial or final determination. The Practice Guidance refers to the need for active case management, and for the need for dismissal of the action or judgment where there is to be no trial. Where actions are not progressed in accordance with the CPR, the parties will be required to show why the injunction should continue.
The J having declined to make the order sought in the form in which it was first submitted, the parties submitted a further draft order with directions for progress of the action and a date on which the undertakings were to expire if not renewed or discharged.
The decision emphasises the extent to which the court will retain control of privacy actions in order to avoid the prospect of injunctions or undertakings continuing indefinitely. Parties should be clear about the progress of the action to trial, and about the time-limit set on any restrictions on the exercise of Article 10 rights, or derogations from open justice.