APPENDICES
private matters: JIH v News Group Newspapers Ltd.256 Article 6 provides for a public hearing and for a judgment to be pronounced publicly, although this right is subject to the need to protect the private life of the parties, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
¶3.134 However, parties seeking an injunction to restrain publication often wish to preserve their
anonymity to prevent further reporting of the circumstances giving rise to, and the claim for, an injunction.
¶3.135 The Court has jurisdiction to make an order for anonymity in accordance with section 11 of
the Contempt of Court Act 1981 and CPR 39.2(4). Such an order is often sought together with a substantive injunction seeking, (a) the protection of private information and, (b) prevention of publicity concerning the existence of the proceedings and the claimant's interest in them (sought on the basis that to allow such publicity would encourage speculation about the subject matter of the action, which would be intrusive in itself and may well alight on the very class of secret which exists). If anonymity is not ordered, the fact that the claimant has had to seek relief against the defendants may become a story in its own right.
¶3.136 Derogations from the general principle of open justice can only be justified in exceptional
circumstances. However, it is fair to observe that by 2010 claimants were frequently seeking interim injunctions against the media which had some or most or all of the following features: the applications were heard in private, the proceedings were brought in an anonymised form, there was no public judgment, they were sought without notice to anyone (for example, because the defendants were "persons unknown", or because the defendant media organisation was thought to be likely to frustrate the order if given notice), and the injunctions were served on media third parties with the intention of binding them in accordance with the "Spycatcher" principle.
¶3.137 Claimants often sought such orders on the grounds that if they were not granted these
procedural protections they would be deterred from seeking any relief at all. Prior to the decision in Terry, such arguments tended to be successful.257 However, the Terry decision marked an important check on the growing practice of the courts to entertain proceedings effectively shrouded in secrecy. Tugendhat J emphasised that these protections were only to be granted if necessary and a number of subsequent cases made clear that public judgment would be required, even if some material facts were omitted from the judgment and set out in a confidential schedule attached to the order. The concerns raised by Tugendhat J in Terry fed into the Report of the Committee on Super‐Injunctions at para 2.35258:
"It is true that, until early 2010, there were justifiable concerns that a form of permanent secret justice was beginning to develop. However, that concern should be dispelled by the decision in the Terry case."
¶3.138 Another feature of the practice in relation to obtaining injunctions which gave rise to legitimate
1891concern was that interim injunctions were kept in place for long periods and potentially indefinitely, either because the initial orders granting interim relief did not contain a return date or because the substantive claims were not progressed by the claimant towards trial, in many cases because for a claimant once an interim injunction was granted no better result could be achieved at full trial and for the defendant the grant of an injunction on an interim basis was effectively determinative of the issue as the story may not be worth publishing
¶Appendix 4 | Legal Materials
months later. In Giggs v News Group Newspapers Ltd Tugendhat J noted the incentive for claimants to abuse the process, to avoid the need to prove their cases at trial.259 Having obtained an interim non‐disclosure order it may appear to be in interests of the claimant to hold on to it as long as possible and to proceed to trial as slowly as possible, if at all.260
¶3.139 During this period the media expressed concern against orders, in particular, super injunctions,
which restrain a person from: publishing information which relates to the applicant and is said to be confidential or private, and, publicising or informing others of the existence of the order and the proceedings.
¶3.140 The Committee on Super‐Injunctions chaired by the Master of the Rolls, Lord Neuberger, was
set up in April 2010 in response to these concerns and the Report dated 20 May 2011 and accompanying "Practice Guidance: Interim Non‐Disclosure Orders" issued by Lord Neuberger MR with effect from 1 August 2011 entrenched the developments towards open justice recognised in the case law and emphasised free speech and open justice.261
¶Damages 3.141 Where a claim for misuse of personal information is successful the claimant is likely to be
compensated for any non pecuniary losses by an award of damages and the courts have tended to award damages for distress, hurt feelings and loss of dignity in privacy cases. Initially these awards have tended to be in the region of £2,000 – £10,000, with the Mosley case signalling a departure from these lower sums to an award of £60,000. In Cooper v Turrell Tugendhat J accepted the submission that the measure of damages in Mosley, in which the court took into account sums awarded in defamation cases, was the more appropriate guide to take than awards in earlier cases.262 There are a number of reported settlements in the region of £30,000. In determining quantum the Court will have regard to all the circumstances of the unlawful disclosures that are relevant, including the seriousness and scale of the intrusion, the circumstances in which the information was obtained and the defendant's knowledge at to potential harm to the claimant. Particularly intrusive disclosure, for example photographs, may affect the severity of the conduct. The claimant's own conduct will also be scrutinised for the purposes of assessing damages and to the extent that the claimant's conduct has contributed to the nature and scale of the distress this is likely to be material.
¶3.142 Aggravated damages have been awarded in some privacy cases. For example, £1,000
1892aggravated damages were awarded in Campbell v MGN on the basis of the post-publication conduct of the newspapers. Whilst there had been some judicial movement towards recognising a claim for exemplary damages in this context, it has now been established that exemplary damages are not awardable in claims for misuse of private information, until such a course is sanctioned by Parliament or the Supreme Court.263 p18, lines 22-25, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-16-January-2012.pdf p49, lines 15-23, ibid Part E, Chapter 4 Ting Lan Hong v XYZ and others [2011] EWHC 2995 QB p12, lines 20-25, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf pp88-89, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-11-May-2012.pdf p7, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-54.pdf PCC, p10, para 13.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-V21.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Max-Mosley.pdf See for example Douglas v Hello! Ltd [2003] EMLR 601 in which Morritt V-C permitted the pleading of a claim for exemplary damages In Mosley v NGN Eady J adopted a restrictive approach to the extension of exemplary damage, holding that it was not clear that misuse of private information was a tort to which the possibility of exemplary damages should necessarily extend.