Last week’s decision of Sharp J in MJN v News Group Newspapers Limited  EWHC 1192 shares some similarities with cases that have caused so much uproar recently, in that it concerns an injunction prohibiting identification of a married premiership footballer who has been having an affair. However, there are two important points to note: firstly, the Order allows the person with whom he was having an affair to ‘tell her story about her relationship’ (subject not naming him and including sexual and salacious details of their affair) and secondly, despite the subject matter of the hearing being private and confidential information, the hearing was conducted in public.
On 5 May 2011, NGN notified the Claimant of its intention to publish in The Sun newspaper an account by an 18 year-old lingerie model, Kimberley West, of her ‘relationship’ with the Claimant, a married premier league footballer. NGN then declined to give an undertaking not to publish, and were notified of the Claimant’s intention to apply for an urgent interim injunction on short notice to prevent the disclosure of private information. This application was granted by Beatson J on 5 May 2011.
The Order made on 5 May 2011 permitted the publication of the story of the ‘relationship’ by Ms West provided only that:
“(i) nothing is published which identifies or tends to identify the Claimant as the other party to the relationship or as the person who has applied to the court for an injunction; and (ii) what is published excludes sexual, salacious and/or other specified details”.
The Claimant did not concede that there was any lawful justification for the publication of the story itself. However he agreed that, insofar as the issue of prior restraint is concerned, the balance between the Article 8 and Article 10 rights engaged could be struck in the way allowed for by that part of the Order permitting Ms West to sell her story to NGN, and for its publication, but for it not to be told in a way which identifies the Claimant or which gives sexual or salacious details.
The Sun took advantage of the terms of the Order and published an article about the affair (“Married Prem Star * Gags Sun on Affair” – “Yes, another one”) on 6 May 2011 and on 7 May 2011 published a further story under the headline, “My Fling with Prem Star”. Although the latter story contained the caption “The only version of this story that rat’s lawyers will let us print”, NGN had not suggested in their written submissions that there was any public interest in publishing the identity of the Claimant or the sexual and salacious details of their relationship.
The second point of note is that the hearing was held in public, despite the fact that the subject matter of the application related to private and confidential information. The reason for this was due to the fact that the Court had made an Order pursuant to Part 31.22 restricting subsequent use of disclosed documents. Sharp J referred to the invitation made on the Claimant’s behalf to hear the matter in private and, after noting that it remained necessary for the Claimant to be anonymised, stated:
“In the event however, I was satisfied this was not necessary [to hear the matter in private], provided an order was made pursuant to CPR 31.22 that no use may be made by any person who is not a party to the action of any of the confidential schedules to the witness statements or the skeleton arguments read by the court and referred to in the course of the hearing; and that no person who is not a party to the action may obtain the documents from the court records. Accordingly, the hearing was in public, and I made an order pursuant to CPR 31.22 in those terms.” 
This decision represents a further move away from ‘super injunctions’ and demonstrates how the Courts are attempting to strike a balance at this interim stage between a Claimant’s Article 8 rights in the protection of private information about a sexual relationship and the other party’s and newspaper’s right to tell the story under Article 10. This has been achieved by allowing Ms West to tell her story, (save for identity of the Claimant and the sexual and salacious details) rather than by making an Order preventing publication of any details about the relationship whatsoever.
The decision to hold the return date hearing in public is in keeping with the approach of the Court of Appeal in these types of cases but marks a departure from the normal practice adopted by judges in first instance hearings. Factors that may have had a bearing in this case are, firstly, that this was a Return Date hearing and the parties therefore had time to prepare and gather the evidence in advance; and secondly, that the Defendant sent written submissions and therefore the risk of private and confidential information being inadvertently mentioned in public was greatly reduced.