Reference:  EWHC 1437 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 9 Jun 2011
Summary: Injunctions - Privacy - Sexual Relationship - Public Interest - Press - Variation - Anonymity
Download: Download this judgment
NGN renewed an application on 26 May 2011 to vary further an injunction dated 19 May 2011 which permitted the claimant, the former Chief Executive of RBS, to be named but prohibited the disclosure of information concerning a sexual relationship between the claimant and a female colleague at the bank, referred to in the proceedings as VBN. The injunction in its original form had prohibited disclosure of the claimant’s identity. At the hearing on 19 May NGN had sought a variation to withdraw anonymity from VBN, who nevertheless had not been given any notice of the application and was not legally represented at the hearing. Counsel for VBN represented her as an interested party upon NGN’s renewed application, on the ground that she would be most affected if the variation sought was granted.
Whether the application to identify VBN should be allowed.
The application succeeded in part: the injunction was varied to permit disclosure by NGN of the job description of VBN, but not disclosure of her name.
The Judge was not satisfied that VBN would establish that she ever had a reasonable expectation of privacy in respect of the bare fact of her relationship with the claimant.
However, disclosure of VBN’s name would be a significant intrusion into her private and family life from which she was entitled to be protected. But, while publication of her job description would lead many people to identify her, and would also be an intrusion into her private and family life, the information was an “important feature” of the story.
Further, on VBN’s evidence, her name had already become known to some of her acquaintances, in some cases by reason of publications outside the press and broadcast media.
The additional publication likely to follow from publication of her role was not likely to be so great a further intrusion into her private life as to make it necessary and proportionate to interfere with the Article 10 rights of NGN
Moreover, On the issue of public interest, the judge said there should be public discussion of the circumstances in which it is proper for a chief executive – or other person holding public office or exercising official functions – to carry on a sexual relationship with an employee in the same organisation.
He added that he was satisfied that Sir Fred or VBN would be likely to establish that any trial judge should make no finding of any breach of the RBS Group Code of Conduct on Integrity Matters as there was no evidence in court of such a breach.
He was also satisfied that Sir Fred or VBN would be likely to defeat any case that the relationship had an impact on the financial difficulties of RBS as this was “speculation by NGN”.
VBN was granted a stay to pursue an appeal over disclosure of the job description pending an application for permission to the Court of Appeal.
As the Judge himself points out, this case raises important questions as to the circumstances in which the parties to a sexual relationship may or may not hold a reasonable expectation of privacy in respect of that relationship, and when it may or may not be in the public interest for there to be disclosure in the media of the fact (but not the details) of a sexual relationship.
Also of note is the earlier failed application by VBN to instigate contempt proceedings against Associated Newspapers for publishing an article which included 10 pieces of information which she claimed identified her. The article had been published the day after Tugendhat J lifted the claimant’s anonymity but refused to permit identification of VBN. The Judge declined to refer the matter to the Attorney-General because the Attorney-General was free to act of his own motion, but observed that if action was taken, the somewhat critical contents of Tugendhat’s judgment would be available for consideration.