Case Law: ZAM v CFW – an anonymised interim libel injunction

9 03 2011

The case of ZAM v CFW ([2011] EWHC 476 (QB)) has a number of unusual and interesting features.  Mr Justice Tugendhat granted an interim injunction to restrain the publication of defamatory allegations – no misuse of private information was relied on.  An injunction was granted under the Protection from Harassment Act 1997 to prevent harassment by defamatory publications.  Most interestingly, the judge made an order for anonymisation not to protect privacy rights but, in substance, to protect the Article 8 reputation rights of the claimant.

Facts

The facts of the case were unusual.  The claimant’s wife is a beneficiary of substantial family trusts.  The first defendant was one of her sisters and the second defendant was the first defendant’s husband.  In February 2011 there were several telephone calls and a letter from an individual, X.  There were other communications in the past from Y about the trusts.   There was some suspicion that X and Y were the same person and had some connection with the defendants.  X’s publications were seriously defamatory of the claimant.  When a letter before action was written to the defendants, X responded in what is described as a “defiant and provocate response” headed “CLEARED FOR WORLDWIDE PUBLICATION”.   In a later email, X asked:

“will some evil person leak the entire proceedings and all the sordid details so that the irresponsible global media  … can really get their teeth into [them]”

The claimant obtained a without notice injunction on 25 February 2011 with a return date of 3 March 2011.  On that date the defendants did not appear and were not represented.

Judgment

In his judgment Tugendhat J pointed out that

“The words complained of consist of allegations of the most grave and serious kind, which, if true, would involve various forms of criminality. [Counsel for the claimant] submitted that, as is virtually self-evident, publication of the material in question would cause alarm and distress to the Claimant. He also submitted that it is apparent, from the words of X himself, that, through his agency, the Defendants have both understood and intended throughout that publication would cause alarm and distress to the Claimant“.

The judge accepted those submissions.  The claimant put forward detailed evidence designed to demonstrate that the words complained of were untrue.  None of the responses gave any indication that the defendants were relying on the defence of justification.  Although on 2 March 2011 the Court had received a fax in the form of a statement by X asserting that the claimant was subject to legal activities in relation to misconduct abroad and that his evidence might have been manufactured.

The judge noted that, although interim defamation injunctions were rare, the court had jurisdiction to grant them.  On this issue he concluded:

On the information before me I am satisfied that there is a prima facie case of libel, that there remains a threat by the Defendants to publish or further publish the words complained of, and that if publication or further publication occurs the Claimant will suffer injury which cannot fully be compensated in damages. I am in no doubt that the words complained of are defamatory. Nothing has been stated by the Defendants personally to the effect that they have a defence of justification or any other defence. Nor am I able to regard the fax of 2 March 2011 as providing any or any sufficient basis for saying that there may be a defence that will succeed at trial” [24].

In the alternative, he accepted that there was a clear basis for relief under the Protection from Harassment Act 1977.   He relied on Eady J’s statement in Howlett v Holding [2006] EWHC 41, ([5]) that  “in some circumstances, the exercise of one’s right of free speech can fall within the concept of harassment, provided the other necessary ingredients are present. For example, it would have to be classified as unreasonable and oppressive conduct“. [25]

The most interesting aspect of the judgment is the order anonymising the parties.  The judge held that it would frustrate the purpose of the injunctions if the application had the effect of making the allegations public and noted that, in “blackmail” cases such orders were common [27].   He referred to the jurisdiction under section 6 of the Human Rights Act 1998 and CPR 39.2(4).  The Judge noted the claimant’s submission that

if anonymity were not to be ordered, the fact that the Claimant has had to seek relief would be capable of being made a story in its own right, and would be likely to lead to widespread speculation as to what story he has been concerned to prevent the Defendants from telling. It would be unfair to him (and his family) that, as the price of preventing the publication of allegations that (ex hypothesi) he is entitled to prevent, he (and his family) should be exposed to invasive speculation of this sort” [28].

He concluded that the “public interest in open justice” was better served by granting anonymity to the claimant and revealing such detail about the subject matter of the action as is contained in this public judgment [28].

Comment

Interim libel injunctions are relatively rare but can be granted if “it is clear that no defence will succeed at the trial”(Greene v Associated Newspapers Ltd [2005] QB 972 per Brooke LJ at [57]).  Although the point was not analysed  in detail a defendant cannot resist an injunction by a generalised assertion of belief in the truth of the allegations made.  As Eady J said Sunderland Housing Group v Baines ([2006] EWHC 2359 (QB) )

It seems to me at least right for a defendant who seeks to resist an injunction against publication of defamatory words to identify the defamatory meaning or meanings which he intends to justify and also to state in a witness statement verified by a statement of truth that he believes in the truth of the words in that meaning or those meanings.  That, it seems to me, must be the very minimum.” [17]

This was not done in this case and an injunction was clearly appropriate.

The order for anonymisation represents a new development in this area of the law.   Such orders are extremely rare in libel cases – although the parties in W v JH ([2008] EWHC 399 (QB)) were anonymised, there does not appear to have been a formal order (see HMRC v Bannerjee [2009] 3 All ER 930 [16])

In general, a libel claim is intended to vindicate the rights of the claimant and anonymity would be counter productive.  However, in a case where blackmail appears to lie behind the publication and an interim injunction is granted, there is obvious merit in orders anonymising the parties.  The judge relied on two “jurisdictional bases” for the order.  First, there is CPR 39.2(4) which provides that

The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness“.

It is sometimes argued by the media that this power is incompatible with Article 10 but it does cover the position which arose in this case.  The test of “necessity” was satisfied – the order was “really needed”.  Furthermore, although it is arguable that the power would not extend to the anonymising the defendants – as it was not designed to protect their interests – but there is no doubt that there is a power to anonymise a defendant to protect the interests of a claimant (see H (A Healthcare Worker) v Associated Newspapers [2002] EWCA Civ 195, [18]).

The Judge’s reliance on section 6 of the Human Rights Act 1998 is more interesting.   This gives the Court power to make orders to protect the Convention rights of parties.  It is usually invoked to protect the Article 8 right to respect for private and family life but this was not engaged in the present case.  What then was the Convention right relied on to outweigh the Article 10 rights of the public to obtain information about the process of the justice?

Although the Judge does not expressly deal with the point, it appears that he was relying on the Article 8 right to reputation.   The purpose of the action was to protect the claimant’s reputation and that right had properly to be taken into account by the Court when considering anonymisation.   The order for anonymity appears, therefore, to have been made to protect the claimant’s reputation.   It is clear from the analysis of the Supreme Court in the Re Guardian News and Media case ([2010] UKSC 1) that this is a possible basis for such an order but this appears to be the first time that it has been successfully relied on in a libel case.   This opens up a number of interesting possibilities for future anonymity applications which we await with interest.

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4 responses

9 03 2011
Case Law: ZAM v CFW – an anonymised interim libel injunction … | U.S. Justice Talk

[…] Gyi Tsakalakis posted about this interesting story. Here is a small section of the postThe order for anonymisation represents a new development in this area of the law. Such orders are extremely rare in libel cases – although the parties in W v JH ([2008] EWHC 399 (QB)) were anonymised, there does not appear to have been a formal order (see HMRC v Bannerjee [2010] 1 WLR 800 [16]). In general, a libel claim is intended to vindicate the … Email Subscription. Enter your email address to subscribe to this blog and receive notifications of new posts by email. … […]

14 04 2011
Privacy injunction hearings: not ‘super’ but anonymous | media law & ethics

[…] Tugendhat J.  An interim injunction in a libel case, along with an anonymity order.  We had a case comment and a further post about the media […]

12 05 2011
News: Guardian editor on the tangle of libel, privacy, phone hacking and self-regulation – Judith Townend « Inforrm's Blog

[…] Rusbridger was very concerned by the recent anonymisation of the parties in a libel case (ZAM v CFW), he was more reluctant to criticise the contra mundum order in OPQ v BJM and […]

16 01 2013
News: The Media Cases Listed in January to March 2013 « Inforrm's Blog

[…] was granted in this action by Tugendhat J on 7 March 2011 (see [2011] EWHC 476 (QB)).  We had a case comment about this decision at the time and a post entitled “Libel, Blackmail and Anonymity: ZAM – […]

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