Ryan Giggs privacy claim struck out.

Ryan Joseph Giggs (previously known as “CTB”) v (1) News Group Newspapers Ltd and (2) Imogen Thomas [2012] EWHC 431 (QB)

The privacy claim by Ryan Giggs against NGN publisher of The Sun has come to a rather sorry end with the Judge criticising all parties and refusing to reinstate the claim which had been struck out because of an error by Giggs solicitors. You will recall that the claim arose out of an article in  The Sun on 14th April 2011 “Footie Star’s Affair with Big Bro Imogen”

Giggs applied on that day to the court and on short notice to NGN and with no notice to Imogen Thomas the former Big Brother contestant for a non disclosure injunction. The proceedings became notorious because of the anonymization of Giggs who was referred to as CTB and its failure to achieve its purpose when Giggs name was mentioned in Parliament and all over the Internet via Twitter.

Giggs had thought Thomas was responsible for the article but it turned out she wasn’t. A compromise was reached with her.

  • “not to disclose or cause or permit another to disclose any Confidential Information (as defined …) to any third party”.

Giggs case had been struck out because of a failure by his solicitors Schillings to comply with a directions order which stated,

  • ” makes an appointment to attend on the Clerk of the Lists in order to fix a further trial date, such appointment to be not later than 18 November 2011, and give notice of the appointment to the Defendants;”

The parties then realised that that the action had been struck out and therefore Giggs solicitors Schillings made an application to reinstate the action.

The judge said referring to the solicitor at Schillings,

  • “He [Benaim] stated that it was as a result of an oversight in his office that the date of 18 November 2011 had not been noted. He took full responsibility for this and apologised to the court.”
  • “The lawyers had been “concentrating on settling the proceedings with Miss Thomas and simply overlooked the need to comply with the 18 November deadline”

The court refused to reinstate the claim saying that it was open to the Claimant to issue fresh proceedings if he wished.

  • “I would refuse to grant Mr Giggs relief under CPR Part 3.9 on the grounds that he had been party to these two serious and (in the sense explained above) intentional breaches, one of the rules of court and one of the order of 20 April 2011”

The judge ruled against granting a permanent injunction against NGN as he said there was no evidence that they had the means or information to publish another story

The judge criticised NGN saying that despite complaining publicly about its Article 10 rights to freedom of expression it agreed to the delay in the trial without the parties seeking the consent of the court.

  • “It might be thought that where the defendant is a media organisation it would give priority to freedom of expression, and so require that a claimant progress a claim to trial as expeditiously as possible, with a view to vindicating its Art 10 rights, if it can. But experience has shown that media defendants rarely do that in privacy cases. That may be on account of the high costs of litigation, or it may be for other reasons. In some cases it may be because the media recognise that there can be no defence in law to the claim. But the result is that the court must be particularly alert for the need to have regard to the rights of third parties.”

The judge also said that NGN had been willing to agree to a non disclosure order  continuing again secretly.

  • “In these circumstances, why NGN was secretly willing to agree to defer service of its defence, and thus the trial of the action, is hard to understand………..In May 2011 NGN was prominent amongst those complaining about the injunction that had been granted to Mr Giggs, and how, so it said, that injunction interfered with the Art 10 rights of itself and the public in general. ……………….Yet………. had been willing to consent (again secretly) to a non-disclosure order interfering with the Art 10 rights of third parties.”

Finally to be criticised was Imogen Thomas. Her assertion that she was unable to put forward a defence in the proceedings was unfounded.

  • “It follows that judges must give every opportunity they can give to a defendant to put her case before the court,” the judge said. “But a judge cannot compel a party to put her case before the court. […] Ms Thomas had the opportunity of putting her case and correcting any errors of fact.”

It remains to be seen whether Ryan Giggs issues a new claim or puts the whole affair behind him.

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