Reference:  EWHC 2367 (QB)
Judge: Tugendhat J
Date of judgment: 21 Oct 2010
Summary: Privacy - Injunction - Anonymity - Undertakings - ECHR, Articles 8, 10
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Instructing Solicitors: JMW Solicitors for C; D in person
The claimant (C) had obtained an urgent interim injunction restraining D from publishing private information. Prior to obtaining that injunction D had told C’s legal adviser that s/he was willing to sign an undertaking, but according to C, D had also made inconsistent or unclear statements. During the course of obtaining the interim injunction, C had given an undertaking to the court to issue a claim form. C had also sought an anonymity order which was granted.
Following the hearing, D gave written undertakings in relation to the private information and the parties sought a consent order. C did not issue a claim form. At the return date C sought a stay of all further proceedings except for the purpose of carrying into effect the terms of the order and a continuation of the anonymity order.
(1) Should the order for a stay be granted?
(2) Should the parties continue to be anonymised?
(1) The order sought staying the proceedings was granted. The alternative was to enter final judgment but the effect of this would be that the final injunction would not be binding on third parties.
(2) The parties could not consent to anonymity: the court has to consider the rights of the public under Arts 6 and 10. D’s private life was engaged by the proceedings, and disclosure of D’s identity would be an unjustifiable interference with his/her private life: the allegations made against D were very serious, and there was no suggestion that D was anything other than a person of positive good character. Since the question of whether the disclosure of the information would have been lawful no longer required resolving, it was necessary to protect D’s Article 8 rights by ordering that D not be identified. For the same reasons, it was necessary to order that there be no report of the proceedings or their subject matters of any information which was not included in the judgment.
C’s case on why his identity should not be disclosed was weak: disclosure of the general nature of the information does not always engage a claimant’s private life and the possibility that the media might publish articles critical of an applicant cannot normally be a reason for anonymity. This was not a blackmail case, or an exceptional case where C’s Arts 2 or 3 rights might be interfered with. In the circumstances, it was not necessary for there to be a departure from the principle of open justice by granting anonymity to C.
Tugendhat J reiterated that where there has been a breach of an undertaking to the court there must be an investigation by the court. In light of C’s legal representatives’ explanation of the reasons for the failure to issue a claim form, no sanction was necessary.
The latest in a series of judgments where the issue of anonymity and other procedural safeguards have been closely scrutinised.
The order for a stay on proceedings gave the claimant the advantage of an order which is binding on third parties. However, Tugendhat J emphasised: “The fact that I have ordered a stay in the present case should not be taken as authority that that is the right course to take.”