JIH v News Group Newspapers Ltd (CA)
Reference:  EWCA Civ 42
Court: Court of Appeal
Judge: Master of the Rolls, Kay & Smith LJJ
Date of judgment: 31 Jan 2011
Summary: Injunction - Anonymity order - Privacy - Misuse of private information - Open justice - Article 8 ECHR - Article 10 ECHR - Reporting restrictions
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David Sherborne (Appellant)
Instructing Solicitors: Berwin Leighton Paisner LLP for the appellant; Farrer & Co for the respondent
The appellant (JIH) had originally been granted by Nicol J a short-term interim order prohibiting the respondent (NGN) from publishing all or any part of the information described in a confidential schedule or anything which might identify JIH as the applicant. Following negotiations, JIH and NGN then presented a draft agreed order for approval to Tugendhat J, who declined to make the order sought. The Judge considered the draft order too broad on the basis that it was overly restrictive of reporting of the proceedings because it gave JIH both anonymity and prevented the reporting of any aspect of the evidence. The court declined to anonymise JIH’s identity in any order the court made, subject to any pending application to appeal.
JIH applied for the variation of an order when two newspapers not covered by the order subsequently published articles which JIH claimed had breached the order. The Judge was asked to reconsider his refusal to accord JIH anonymity. The articles had been removed from the internet yet JIH argued that if and when the anonymity provision in the order expired, the publication of his identity would lead to the public knowing about the subject matter of the action thereby undermining the purpose of the order. Tugendhat J dismissed the application.
JIH sought permission to appeal both decisions, which were refused by the Judge. The Judge ruled that the order must continue to be anonymised until JIH’s application for permission to appeal.
Whether JIH should have been accorded anonymity, either on the basis of the position as it was at the first hearing before Tugendhat J, or in view of the two newspaper articles published thereafter.
The Judge had reached his conclusion in his judgment on the mistaken basis that it has been common ground between the parties that the general nature of the information should not be revealed and accordingly it followed that JIH’s identity should not be withheld from the public. In fact, JIH had argued below that if the reporting restrictions to the draft order were to be reduced, JIH preferred that the general details of the story should be made reportable and that his anonymity should be retained. Permission to appeal was granted and their Lordships went on to decide the appeal.
On the facts of this case, it was right to accede to JIH’s claim for anonymisation. There was obvious force in the contention that the public interest would be better served by publication of the fact that an injunction had been granted to an anonymous well known person on the basis of certain facts than by being told that the court had granted an injunction to an identified person to restrain publication of unspecified information of an allegedly private nature.
Their Lordships acknowledged the importance to the media and to wider society of being able to name JIH as the claimant. There was no general rule that anonymisation is more or less likely to result in greater interference with free speech and maintaining public scrutiny of the courts than precluding the publication of more extensive information about the proceedings.
In the present case, the crucial factor was a previous story published in the media about JIH’s alleged liaison with YY, which bore similarities to the present allegations about JIH. If his identity was revealed without permitting the nature of the information sought to be restrained, the media and public would have easily deduced the subject matter of the that information.
Appeal allowed unanimously.
This important decision marks a respectful yet clear departure from the approach taken by the judge at first instance. Tugendhat J had reasoned that the only real choice was to allow the public to know the applicant’s identity or to allow the public to know nothing at all about the action. JIH had not shown that it was strictly necessary to achieve justice in his case to make an order for anonymity and the judge accordingly opted to reveal his identity and restrict publication of the nature of the allegedly private information.
While the Court of Appeal stressed that there was no general rule that anonymisation is to be preferred to precluding the publication of more extensive information about proceedings, the appellate court’s decision highlights the fact that the media and the public will have a better understanding of why the court acted as it did when provided with details of the type of case rather than the name of the individual who is seeking to protect an unspecified aspect of his or her alleged private life by means of an injunction.