Full case report
X & Y v Persons Unknown
Reference  EWHC 2783 (QB);  EMLR 290
Court Queen's Bench Division
Judge Eady J
Date of Judgment 8 Nov 2006
Privacy – Confidence – Injunctions – Application to Discharge – “John Doe” Orders – Notification of media
Three newspaper groups – Associated Newspapers Ltd (ANL) MGN Ltd (MGN) and News Group Newspapers Ltd (NGN) had apparently been approached by person(s) unknown with allegations about the state of the marriage of the Claimants, X & Y. Undertakings or assurances not to publish had been received from the newspapers, but fearing that the person(s) unknown would approach others, the Claimants applied to the Court for a “John Doe” injunction to restrain the person(s) unknown from revealing private/confidential information. The Court granted the application. MGN and NGN applied to discharge the order on the grounds (i) material non-disclosure; and (ii) that it should not have been granted in the first place in light of the material the Claimants had put in the public domain about their marriage. ANL applied for a variation of the terms of the injunction and a declaration that they should have been notified of the original application.
(1) Whether the injunction should be discharged for material non-disclosure; (2) Whether the injunction should be discharged in light of the material the Claimants had put into the public domain about the state of their marriage; (3) Whether the terms of the injunction should be varied; (4) Whether there was an obligation upon the Claimants to have notified ANL of the original application for an injunction.
Refusing the application to discharge the injunction and varying its terms; (1) Although there were further newspaper articles that would have been relevant to the original application, consideration of them would not have led the Court to refuse an injunction. (2) The Claimants had a reasonable expectation of privacy in details of their marital difficulties and were entitled to injunctive protection. Their privacy rights had not been “waived” or lost by material about the marriage put in the public domain by the Claimants. A distinction was to be drawn between someone being in the “public-eye” and someone being a “publicity-seeker”; (3) The terms of the injunction would be varied to take into account matters raised by ANL, MGN and NGN; (4) With hindsight it would have been better if ANL had been notified of the original application, but the Claimants advisers had believed that they had no continuing interest in the story.
Two practical issues arise from this case: (1) When considering applying for a “John Doe” order where it is intended to serve media organisations, thought must be given to which (if any) media organisations should be notified of the application. Where it is known that a particular media organisation is interested in the story, where practicable, it should be given notice of the application. (2) Proceedings in which the “John Doe” injunction has been obtained cannot simply be left to go to sleep on the basis that it has proved impossible to serve the Defendant(s). Under the Spycatcher principle, a third party who has notice of an injunction is bound by its terms. If the action is not progressed, the interlocutory order will effectively become a final order binding third parties, thereby circumventing the position identified in Jockey Club v Buffham.
Schillings for the Claimants; Reynolds Porter Chamberlain for ANL; Farrer & Co for MGN and NGN
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.