Civil Procedure Rules - Media and entertainment - Anonymity - Breach of confidence

(1) Zac Goldsmith (2) Sheherazade Goldsmith v BCD: Jemima Khan v BCD: QBD (Mr Justice Tugendhat): 22 March 2011

The court had to determine the appropriate course of action following a breach of an undertaking given to the court by the claimants (X).

In 2008 X’s personal emails had been passed to a newspaper after their email accounts had been hacked.

After X gave an undertaking to serve claim forms on the hacker as soon as their identity became known, the court granted their application for an interim injunction prohibiting publication of any information relating to the proceedings.

It also ordered that the parties be anonymised so as not to alert the hacker.

The orders did not contain a return date.

The defendant hacker (B) was later identified, but despite having previously received warnings for similar conduct, she was not prosecuted.

Thereafter, X did nothing to progress their claims. Two years later a national newspaper claimed that the anonymity provisions in the 2008 orders were no longer necessary.

The file was reopened and X realised that they had breached their undertaking to the court. They immediately sought to serve the claim forms on B. B, who had mental health problems, accepted that she had no defence and wanted to submit to judgment by consent.

X agreed, but the court had to determine: (i) whether X’s claim should be struck out as a result of their breach of the undertaking; (ii) whether the anonymity order was still appropriate; and (iii) why there was no return date in the 2008 Orders. X submitted that service of the claim forms could be dispensed with under rule 6.16(1) of the Civil Procedure Rules as there were exceptional circumstances.

Held: (1) Breach of an undertaking to the court was a very serious matter. The claim forms could, and probably should, have been served after B’s identity was established. In any event, the court ought to have been kept informed of the non-compliance with the undertaking and any reason for it.

However, discharging the 2008 orders and striking out the action was not the appropriate course of action. First, X had apologised, and although their breach was culpable, it was not intended to achieve an improper purpose.

Second, there would be nothing to stop X issuing new claim forms and applying for fresh injunctions. Third, while B had consented to judgment, evidence of her past behaviour was such that there remained a risk to X from which they were entitled to be protected by an injunction.

It followed that to discharge the 2008 orders without replacing them would be inconsistent with the overriding objective of the Civil Procedure Rules to deal with cases justly.

The fact that B wanted to consent to judgment, and not undergo further legal procedures detrimental to her mental health, constituted exceptional circumstances within the meaning of rule 6.16(1), which meant that it was appropriate to dispense with the service of the claim form and to impose new orders (see paragraphs 5, 37, 41, 43-45 of judgment).

(2) The new orders included an injunction prohibiting publication of the contents of the emails. That did not interfere with anyone’s freedom of expression, as reasonable journalists recognised that disclosure of personal emails would be a breach of confidence.

The anonymity order would remain in place in relation to B, in order to protect her right to respect for private and family life, which included her health and well being, but was discharged in relation to X.

The order restraining publication of any information about the proceedings had been justified at the time it was made, but should not have lasted longer than the period of time necessary to effect service of the claim forms; it interfered with freedom of expression and derogated from open justice (paragraphs 57-59, 66-69).

(3) The court had not included a return date in an attempt to keep down the costs of access to justice.

However, the inclusion of a return date need not always involve claimants in substantial unnecessary legal costs. In the normal way a return date was an oral hearing attended by counsel, which was a costly matter.

However, where the only relief sought at the return date was agreed with all parties concerned, or where it was an extension of time for service of the claim form, or an extension of an anonymity order, or some other ancillary provision, that could generally be done on paper.

Solicitors acting for claimants could write to the court setting out what had happened since the grant of the original injunction and why an extension of the injunction to a new return date was required (paragraphs 47, 60-61)

Judgment accordingly.

Andrew Caldecott QC (instructed by Carter-Ruck) for the claimants; No appearance or representation for the defendant; Alexandra Marzec for the interested party.