DMK v News Group Newspapers Ltd [2016]

DMK v News Group Newspapers Ltd [2016] EWHC 1646 (QB) (05 May 2016). This matter before Mr Justice Warby concerned two actions, the proceedings in the Chancery Division where the Claimant is the Defendant and in this action, is the Claimant. On Saturday afternoon, the 14th May, Mr Justice Warby granted two orders.  One to prevent the identification of the Claimant in this action and the other, as Defendant in the Chancery proceedings.One of the Orders concerned an injunction in respect of this action to prevent the Defendants, publishers of The Sun, from publishing information which would identify the Claimant from the Chancery proceedings.  The order was made until return to court this Friday, 20th May 2016.

The other order concerned an Inspection Order for the Chancery proceedings, where the Claimant is the Defendant, pending an order for anonymity being granted in that matter.  In his order he ensured that the only documents available for public inspection, without obtaining the court’s permission, are redacted statements of case which have removed the identity of the Claimant in this action and as Defendant in the Chancery matter.

Mr Justice Warby considered that as the making of the orders were public, nothing in the orders prevented the reporting of the facts. In this matter the Claimant in this action had been in a relationship with a well off divorcee who was the Claimant in the Chancery matter. Their relationship ceased some two years ago.

The Claimant’s case in this action was that the relationship had involved domestic abuse and that during their relationship, the Claimant in the Chancery action had transferred large sums of monies to her in two portions. The Claimant in the Chancery Action wanted the money back claiming they were loans which the Claimant in this action said were gifts.

Mr Justice Warby observed that the Chancery action had not got very far but in the Reply the case is denied.

On Tuesday evening, 10th May 2016, a Sun reporter visited the Claimant in this action to say that he had seen the Chancery Court documents and intended to run a story on Thursday 12th May 2016.

The Claimant’s witness statement included a confidential schedule setting out the aspects of the case and details of the private information to be protected with evidence that publication would interfere with a right to a private life and cause great harm.

Mr Justice Warby referred to CPR 5.4C and 39.2 where CPR 39.2 (4) “gives the court power to make such an order if it considers non-disclosure necessary “in order to protect the interests of that party.”

He referred to the case of JIH v News Group Newspapers Ltd 2011.  In that case the Court of Appeal had recognised that a grant of anonymity was not a matter of discretion but, when the Article 8 rights of a person are engaged,   it is an obligation under the Human Rights Act 1998.

He observed that the principals to follow were identified in that case including striking a balance so that not only Article 8 and 10 rights are engaged but also Article 6 and the principles of open justice which an order seeking anonymity or publication would deviate from. He considered the main question was “”whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life”.

He considered that when making such an application, s12 of the Human Rights Act 1998 should be referred to in  that, no order should be made before the trial date unless the Claimant can satisfy the court that they are likely to establish that publication should not be permitted. He said in this case “I treat “likely” as meaning more likely than not”.  The court would have to examine what would happen at a trial and would have to look at the importance of freedom of expression including how far would the information reach or be available to the public and was it in the public interest.

Mr Justice Warby was satisfied that the privacy rights of the Claimant in this action would defeat the Article 10 rights engaged and of open justice. He concluded that the issue was the private and family life of the Claimant in this action and of the Claimant in the Chancery action and what did or did not occur when they shared a home. He considered it a matter concerning them and not of public interest or concern and its publication would cause a great deal of harm.

He observed that apart from the Defendant publishers in this action there may be others who are aware of the information through inspection of the papers in the Chancery proceedings but there is nothing to suggest this has been made public. He noted that the injunction may be enough to stop that and in any event the position would need to be looked at again on the Return date to court.

Mr Justice Warby had been informed that the Claimant in this action was going to serve the injunction on the Claimant in the Chancery proceedings and referred to s.12(2) of the Human Rights Act and Practice Guidance notes.  He observed that “a person to be served with such an order is entitled to the benefit of s 12(2), on the basis that he has “an existing specific interest” in the order”.

He observed that the Claimant in the Chancery proceedings was not the subject of the injunction and that he was not threatening to publish the information that the Claimant in this action wanted to safeguard.  He queried whether the Claimant in the Chancery proceedings had the status of “respondent” within s.12(2) but on the assumption that he is for this purpose a respondent then all necessary steps had been taken so as to notify him.

He referred to the Inspection Order and explained that it was made to avoid the Injunction being undermined by inspection of the documents and publication by other parties. He explained that although he is in the Queen’s Bench Division he could make the Inspection Order and referred to s.4(3) of the Senior Courts Act 1981 which provides that “” All the judges of the High Court shall, except where this Act expressly provides otherwise, have in all respects equal power, authority and jurisdiction.”

Mr Justice Warby concluded by referring to the Chancery Claimant. He observed that the Inspection Order did not affect his rights and entitlement to inspect the court file in the Chancery matter and that he would be entitled to receive notice of the application for order. He was happy to forego this due to the need to proceed quickly and, taking into consideration the rights of the Claimant in the Chancery matter, to discharge or vary the order or to challenge it continuing on the Return to court date. He said the Inspection Order’s continuance will be for a Chancery Judge to decide.

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