News: “Privacy Friday” – Dominic Crossley

Following hot on the heels of the Jeremy Clarkson/Jemima Khan “Twittergate”, Andrew Marr’s epiphany and Mosley’s Strasbourg judgment, privacy has never been at a greater point of hysteria than Friday 20 May 2011.   Today, there is simply nothing more newsworthy.

So what is going on?  1) Tabloid front pages are making hay with the “Fred the Shred/Bed” revelations unearthed by Lord Stoneham’s injunction-busting House of Lords speech yesterday 2) The Master of the Rolls, Lord Neuberger, has published his committee’s findings on super-injunctions and 3) Justice Vos has been hearing more argument in the raft of phone-hacking cases, and has decided upon the lead cases that will be at the vanguard of establishing the News of the World’s liability.

It is a strange phenomenon that these developments should all come at a time of press outrage at privacy and particularly the injunction remedy.   In the case of Fred Goodwin and Lord Stoneham’s decision to pass judgment in the chamber of the House of Lords perhaps there was good cause for the outrage.  “Fred the Shred” had long been the personification of banking greed and its role in the financial crisis.  Stoneham’s fellow Liberal Democrat, John Hemming MP had already outed the existence of this injunction, safe in his choice of pantomime villain Goodwin, so Stoneham felt emboldened to tell the world that the subject matter of the injunction was an affair with a “senior colleague” at RBS.

Perhaps there would have been a public interest in the lifting of the temporary injunction but rather than leaving it to an independent judge presented with all the facts and competing arguments to decide by way of a renewed application or at a final trial on the issue, Lord Stoneham felt able to circumvent this process.  If Lord Stoneham has evidence that the near-collapse of RBS was a direct consequence of Fred Goodwin’s nocturnal activities, he may be right be right in his view of the public interest argument for the publication of this information, and he should disclose his evidence to the Court.  If not, and Fred’s libido is entirely irrelevant to his professional judgment, then Stoneham should perhaps be pressed to disclose why, and on whose instructions did he decide to disclose this information.

Lord Neuberger may wish to point his fellow peer Lord Stoneham to the passage in his report which states that “the relationship between parliament and the courts is predicated on mutual respect and confidence”.  There is no doubt that this respect and confidence is being severely tested.  Neuberger’s report recognises the challenges that privacy injunctions pose on the principles of open justice and suggests some carefully crafted procedural steps to ensure that the correct balance is struck.  In its 100 or so pages of draft orders and case citations it is hardly the material usually gobbled up for the front-pages of national newspapers.  One hopes that his report goes some way in allaying the fears that have been fostered by the relentless misinformation that has appeared in our newspapers over the last few weeks.  The headline for tomorrow should perhaps read “Correction: Only Two Super-Injunctions Granted In The Last 18 Months.  Sorry.” Lord Stoneham may be interested in paragraph 6.33 of the report and the open question of whether contempt proceedings may be brought in relation to the reporting of Parliamentary proceedings where such reporting may be in breach of a court order.

And then we get to phone-hacking.  As far as the newspapers are concerned it is unfortunate timing that Justice Vos forged on with his management of the swelling case-load of phone hacking victims.  It is a timely reminder that the vast majority of privacy injunctions sought relate to journalists such as those under the microscope in Court 57; happily and extensively using criminal methods to intrude upon intimate and personal information.

Against this background lawyers have sought creative and novel ways to protect their clients and, at times, decided that the less newspapers know about their applications the safer their clients’ information is likely to be.  The freshly selected lead actions of Sky Andrews, Kelly Hoppen, Andy Gray, Jude Law and Chris Bryant know something about being under media scrutiny and the impact this has.  Vos heard submissions that “a very senior News of the World executive” is named in the papers disclosed to Jude Law and commented that the seniority of those involved at the newspaper would be likely to have an impact upon the likelihood and level of exemplary damages.  It seems as though there remain plenty of surprises yet to be revealed in the course of these proceedings.

So where does Privacy Friday leave us? Am I expecting too much to ask that today should go some way in putting to bed the media and (consequential) public outrage concerning privacy rights and the means by which it is protected?  We now know that the super-injunction, if not dead, was long ago exposed and shunned just as the tabloids like it.   Let’s now leave the good judges in peace, at least for the weekend.

Dominic Crossley is a partner at Collyer Bristow LLP