"Read All About It!" - or not... as the case may be. JIH v News Group Newspapers

Reporting restrictions. Not the bread and butter fodder of this particular blog, but nevertheless an increasingly important addition to the celebrity arsenal in actions in the field of privacy – as seen, for example, from the comments of Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1 at [22], who noted that there had been a “recent efflorescence of anonymity orders” on the back of such actions. It is therefore with some interest that this particular Kat read the Court of Appeal’s judgment in JIH v News Group Newspapers [2011] EWCA Civ 42 (the Master of the Rolls providing a judgment with which Lord Justice Maurice Kay and Lady Justice Smith agreed), handed down yesterday. (‘Why JIH?’, I hear you ask. Well, apparently the Courts Service’s computers need at least 3 letters for indexing purposes – it’s not a cheeky wink at the celebrity’s real name, or so I am assured...).
The issue is neatly summarised by the Master of the Rolls:

[4] “When the balance comes down in favour of preventing publication, a further problem sometimes arises, namely the extent to which, and the way in which, the parties’ evidence and arguments, and the court’s reasoning and order, in the particular case can be reported.”

The facts, such as they can be relayed, take on the veil of a pulp spy novel due to the obvious inability of the court to identify any of the parties concerned (News Group Newspapers (NGN) excepted) in anything but the most circumspect manner. The case revolved around the Sun Newspaper’s intention to publish a story about JIH, a “well-known sportsman” who was in a “long-term and conventional” relationship with XX, detailing an alleged sexual encounter with the mysterious ZZ. This followed an earlier exposé, of which JIH had not been forewarned, which was published at some point before August 2010, in which details of JIH’s alleged liaison with another person, YY, had made the papers.

An interim injunction was granted by Nicol J on 13 August 2010 restraining NGN from publishing the story concerning JIH and ZZ. The parties then entered into negotiations which resulted in an agreed form of order whereby NGN indicated that it would submit to an injunction preventing it from publishing the story or disclosing the identity of JIH pending trial on the issues. The trial was to be held in private and would not be reported. So far, so good...

The draft order was then submitted to Tugendhat J for approval. The judge was concerned that its breadth was too extensive and so declined to approve it at least until after he had heard argument which persuaded him that it was appropriate. Following a hearing, he approved the order subject to the “the important exception that he should refuse JIH’s application to continue Nicol J’s order granting him anonymity – [2010] EWHC 2818 (QB)”. As one would imagine, given the nature of the story and its similarity to the past exposé, JIH appealed.

The Master of the Rolls took up the reins, noting (at [32]) that the choice the Court of Appeal faced was essentially one of permitting JIH to be identified or permitting the skeleton facts of the dispute to be exposed. The latter was reasoned to be the more proportionate and sensible option in this case:

[33] “If the identity of JIH is revealed, then the only details of the case which it would be realistically possible to permit to be published, would be the fact that he is seeking a permanent injunction, and has obtained an interlocutory injunction, to restrain The Sun from publishing information about him which he contends is of a private nature. At least on the face of it, there is obvious force in the contention that the public interest would be better served by publication of the fact that the court has granted an injunction to an anonymous well known sportsman, in the circumstances described … than by being told that it has granted an injunction to an identified person to restrain publication of unspecified information of an allegedly private nature.”

Furthermore while “[a]n anonymity order runs the risk of unintentionally encouraging suspicion and gossip in relation to innocent third parties …, [the] identification of the claimant will be more likely to result in public speculation, or even deduction by journalists or members of the public, as to the nature of the information which he is trying to keep out of the public domain.” [Merpel notes that one might say that if the celebrity were to be named then it would only be a short time before the cat would be well and truly out of the bag...]

The Court was alive to the concern that routine use of reporting restrictions might result in there being no way of assessing the extent to which, and the circumstances in which, the courts are granting orders preventing the publication of allegedly private or otherwise confidential information. Whilst noting that each case would inevitably be very fact specific, Lord Neuberger indicated that this fear would be allayed if, whether or not an anonymity order or an order restraining publication of normally reportable details was made, in cases where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, edited where necessary. Moreover, such a judgment should “disclose as much as possible about the case”, whilst obviously staying within the limits of the order.

It appears, therefore, that we can look forward to more judgments featuring characters shrouded in mystery in the near future. Here's hoping that the Court of Appeal comes up with some more entertaining pseudonyms than XX, YY and ZZ though...