Press Freedom News
Court of Appeal warns over effect of injunctions
20 December 2011
Those involved in or linked to privacy proceedings should not assume that a judge was correct when he declared that interim injunctions cease to bind third parties when the parties to the litigation reach an agreement and settle their differences, the Court of Appeal has said.
The declaration came yesterday from the Master of the Rolls, Lord Neuberger, as he rejected an application for permission to appeal by Chris Hutcheson, father-in-law and former business partner of celebrity chef Gordon Ramsay.
The Master of the Rolls, sitting with Lord Justice Etherington and Lord Justice Gross, said there were three points he wished to make as a result of the argument in the case in relation to the effects of interim injunctions.
The case also stressed the importance of ensuring that the proper procedures, detailed in Practice Guidance on non-disclosure orders were followed.
The case started in January 2009, when Mr Hutcheson launched a case - anonymised as WER v REW - which sought to stop Popdog Ltd from publishing information about his private life.
He obtained an interim injunction against Popdog from Sir Charles Gray, sitting as an additional judge of the Queen's Bench Division.
But shortly thereafter, Mr Hutcheson and Popdog reached a compromise, agreeing, in effect, that the interim injunction would continue for the foreseeable future, but that Mr Hutcheson's claim would not otherwise proceed.
In 2010, News Group Newspapers Ltd ("NGN") decided it wanted to publish the same information. In November that year it applied to the court to set aside the interim injunction.
Mr Justice Eady, who dealt with that application, said in his judgment - the first judgment - that a party who has notice of an interim injunction is at risk of being in contempt of court if he does something which effectively flouts or undermines the order because of what is sometimes known as 'the Spycatcher principle'.
But Mr Justice Gray had held in Jockey Club v. Buffham ( QB 462, paras 23-27) that, if and when a claimant was granted a final injunction, any interim order was discharged and replaced by that final order.
A third party, even one who had notice of the final injunction, was not at risk of being in contempt of court if he acted inconsistently with that order, Mr Justice Gray said.
Mr Justice Eady said in his first judgment that, in his view, the effect of Mr Hutcheson and Popdog having settled their differences was that Mr Hutcheson was "sitting on an interim injunction as though it gave the permanence and security of a final injunction ... but the drawback of a final injunction is that it cannot bite on third parties... There is no ring to hold."
He said that in those circumstances NGN's application to set aside the interim injunction represented "an unnecessarily circuitous route", because the appropriate analysis was that the order had, in practice, ceased to be interim in nature once Mr Hutcheson and Popdog reached an agreement, and therefore ceased to bind third parties such as NGN.
Mr Hutcheson immediately launched proceedings against NGN, and other newspaper publishers - KGM v News Group Newspapers Ltd - seeking an order to stop them publishing the information.
Mr Justice Eady dealt with that application at a hearing in November 2010. In a decision on December 1 - the second judgment - he held that, balancing the freedom of expression and freedom of the press relied on by NGN against Mr Hutcheson's right to privacy and not to be harassed, and taking into account section 12 of the Human Rights Act 1998, he should reject the application.
Mr Hutcheson, at that time still protected by interim orders, applied for permission to appeal against both first and second decisions.
He obtained permission to appeal against the second decision, but that appeal was dismissed on July 19 this year (Hutcheson v News Group Newspapers Ltd and Others ( EWCA Civ 808)).
The application for permission to appeal against the first decision was effectively stayed by agreement until the parties knew the outcome of the appeal against the second decision.
Mr Hutcheson maintained his application for permission to appeal against the first decision.
The Master of the Rolls said NGN argued that Mr Hutcheson should not get permission to appeal against the first decision because the outcome would be academic as between the parties.
Even if the court were to conclude that Eady J ought not to have concluded that NGN was free to publish the information, despite the existence of the interim injunction, NGN would still be free to publish information because of the second decision (now upheld by the Court of Appeal) that NGN's Article 10 rights should prevail over Mr Hutcheson's Article 8 rights.
But Hugh Tomlinson QC, for Mr Hutcheson, argued that even if the appeal was academic as between the parties, it would raise two points about interim injunctions which were sufficiently important to justify an appeal being allowed to proceed.
The Master of the Rolls said that both the decided cases and general principle seemed to suggest that three requirements had to be satisfied before an appeal which was academic as between the parties, might be allowed to proceed.
The court had to be satisfied that the appeal would raise a point of some general importance; the respondent to the appeal had to agree that it could proceed, or was at least completely indemnified on costs and not otherwise inappropriately prejudiced; and the court was satisfied that both sides of the argument would be fully and properly ventilated.
Lord Neuberger said he accepted that there would be a real prospect of meeting the first requirement, because of the issues raised by Mr Tomlinson - the correctness of the judge's view that the interim injunction ceased to have interim effect once Mr Hutcheson and Popdog had effectively settled their differences, and whether the decision in the Jockey Club case was correct.
But the first issue should now only be of limited relevance, following publication of the Practice Guidance: Interim Non-Disclosure Orders, particularly paragraph 36, and paragraphs 37-41.
On the question of whether the Jockey Club decision was correct, Lord Neuberger said: "The fact that Jockey Club has not been challenged in this court despite having been decided some nine years ago might fairly be said to cast some doubt on the importance of the point."
The second requirement was plainly not satisfied, but the third appeared likely to be satisfied.
"In these circumstances, I do not consider that it would be right to grant permission to appeal, at least if this were purely an academic appeal," Lord Neuberger said.
He also rejected the argument that the projected appeal could affect the costs order made by Mr Justice Eady that Mr Hutcheson should pay NGN's costs.
Lord Neuberger said he had reached various conclusions.
Subject to the issue relating to costs, the projected appeal would be academic as between the parties.
He would refuse permission to appeal, because of the combination of two factors.
First, although the two issues which would be raised were significant, they were not of outstanding public importance, and anyway they might not actually be determined on the appeal.
Second, NGN opposed the grant of permission to appeal and would be significantly out of pocket on costs if the appeal went ahead.
The prospect that the order that Mr Hutcheson should pay the costs of the application would be varied, even if the appeal were to succeed, was uncertain, and it would be a disproportionate reason for permitting an appeal to proceed.
Lord Neuberger added: "It would be wrong to end this judgment without making the following points:
"It cannot be safely assumed that the judge's conclusion that, notwithstanding the fact that the court had not varied or discharged the interim injunction, publication of the information by NGN would not represent a breach of the Spycatcher principle because of the terms of settlement between Mr Hutcheson and NGN, would be approved by this court.
"Similarly it cannot be safely assumed that the conclusion in Jockey Club that the Spycatcher principle does not apply to final injunctions but only applies to interim injunctions, would be approved by this court.
"The history of these proceedings demonstrates the importance of adhering to the terms of Practice Guidance relating to Interim Non-Disclosure Orders."
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