In DMK v News Group Newspapers Ltd, ( EWHC 1646 (QB)) Warby J, sitting in the Queen’s Bench Division, has granted two orders designed to prevent the public identification of a defendant in an on-going matter in the Chancery Division.
The first of the orders is an injunction restraining News Group Newspapers Ltd (“NGN”) from publishing information that would identify the defendant in the Chancery action (“DMK”). The second is an inspection order, imposing restrictions on the court file in the Chancery action until after judgment on DMK’s application for anonymisation of those proceedings.
This case is unusual in that the injunction and inspection order apply to a different action in a different division of the High Court. Warby J confirmed that he had jurisdiction under section 4(3) of the Senior Courts Act 1981 to grant orders affecting proceedings in another division, and that it was just and convenient for him to do so in this case: “The divisions are for administrative convenience; the jurisdiction of the High Court is, in general, indivisible“.
DMK was in a relationship for several years with a wealthy divorcee (the claimant in the Chancery action); the relationship broke down two years ago. It is DMK’s case that this was the result of domestic abuse. During the relationship the claimant transferred considerable sums of money to DMK on two occasions. The claimant is seeking recovery of these sums on the basis that the transfers were by way of loan.
DMK resists this claim and asserts they were gifts. The Chancery action is still very much in the early stages; there have yet to be any hearings. DMK was approached by a journalist from The Sun, who claimed to have seen the Chancery Division court papers and said The Sun was planning to run a two page spread on the matter. DMK was immediately opposed to such media coverage. The claimant was also approached and declined to comment.
In a confidential schedule to her witness statement, DMK set out details of the private information she is seeking to protect and evidence supporting her contention that publication of that information would represent an unjustified intrusion to her private life and have substantial damaging consequences. Warby J noted the evidence DMK provided was both specific and detailed, including convincing corroboration from third parties. In his opinion, that evidence suggested that publication of the information would not only adversely impact DMK’s right to privacy, but also her health and her fair trial rights.
The principles for granting anonymity in litigation were established by the Court of Appeal in JIH v News Group Newspapers Ltd  EWCA Civ 42. In striving to strike a balance between the right to privacy under Article 8 of the European Convention of Human Rights and the right to freedom of expression under Article 10, the court must also consider Article 6 (the right to a fair trial) and the principle of open justice. Any derogation from open justice (such as the orders sought in this case) must be justified and therefore DMK’s application required close scrutiny. The key question for the court was whether there was sufficient public interest in publishing a report of the proceedings which identified a party and/or the normally reportable details of the case to justify any resulting curtailment of the party’s right (and their family’s right) to respect for their private and family life.
It was also important that the court kept in mind section 12 of the Human Rights Act. In particular, section 12(3) of the Act provides that, where freedom of expression is in issue, the court cannot grant an order restraining publication before trial unless it is satisfied that the applicant is likely to establish that publication should not be allowed. In this context, Warby J considered “likely” to mean “more likely than not”.
The judge also observed that an order for anonymity did not necessarily mean that a case had to be heard in private: it could be a means of ensuring open justice without an unwarranted intrusion into the parties’ privacy.
Warby J was satisfied on the evidence that, at trial, DMK’s Article 8 right to privacy would probably prevail over NGN’s Article 10 rights. He remarked that, in reaching this conclusion, it was not necessary for him to reach a view one way or another on the allegations of domestic abuse. This was not a case where a legitimate public interest or concern was engaged; it involved two individuals and events in their private home. The information did not appear to be public or known to third parties in any great extent, and its publication would be likely to cause substantial harm. The fact that the information was known to NGN did not place it in the public domain or deprive it of its character as private information.
The judge also took into account the position of the claimant in the Chancery action, given he was not a party to the injunction application and was not present or represented at the hearing. He considered section 12(2) of the Human Rights Act (which provides that the court can only grant relief in such circumstances where the applicant has taken all practicable steps to notify the respondent or there are compelling reasons why he has not been notified) and the Practice Guidance on Interim Non-Disclosure Orders  1 WLR 100. Although the Chancery claimant was not a target of the injunction, and it was therefore unclear whether he was a “respondent” for the purposes of section 12(2), Warby J was satisfied that all practicable steps had been taken to notify him, so this did not prevent the injunction from being granted.
The purpose of the inspection order was to avoid the injunction being undermined by third parties publishing information gleaned from inspecting documents on the court file. The judge considered that the granting of an injunction against The Sunwas likely to provoke much third-party interest and speculation, and if access to the court file remained unrestricted, it was “plausible” that the information would be obtained and published. The rights of the claimant in the Chancery action would not be affected by the inspection order. Whether to continue the order would fall to the judge hearing that action to decide.
This post originally appeared on The Injunctions Blog and is reproduced with permission and thanks