Practice - Striking out - Claimant bringing claim for damages and permanent non-disclosure injunction

Giggs (previously known as CTB) v News Group Newspapers Ltd and another: Queen's Bench Division (Mr Justice Tugendhat): 2 March 2012

On 14 April 2011, the first defendant published an article under the heading 'Footie Star's Affair with Big Bro Imogen'. The article did not name the claimant, but in due course the fact that the claimant was the person referred to became very well known. On the same day, the claimant successfully applied for a non-disclosure injunction and other orders. On 15 April, the claimant issued a claim form which sought damages for breach of confidence or misuse of private information and an injunction. On 20 April, an order was made which continued the non-disclosure injunction.

The claimant gave an undertaking that should the order cease to have effect, he would immediately notify any relevant person. In May 2011, the claimant and the first respondent agreed a general stay regarding service of the first defendant's defence, although, in breach of part 15.5 of the Civil Procedure Rules, that was not communicated to the court. In November 2011, the claimant failed to comply with an order for directions with the result that the claim was automatically struck out. That effect was not appreciated by the parties until January 2012, when the claimant issued an application notice which sought relief from the strike out and the reinstatement of the action pursuant to CPR part 3.9.

On 1 February 2012, the case between the claimant and the second defendant was compromised and, as part of the terms of the compromise, the second defendant gave an undertaking to the court in an order 'not to disclose or cause or permit another to disclose any confidential information to any third party'. In effect, there was a final order of the court prohibiting publication of any further account of any sexual relationship between the claimant and the second defendant. That order named, for the first time, the claimant as Ryan Giggs. The instant hearing concerned the claimant's application for the reinstatement of his claim.

The claimant submitted that it was in the interests of the administration of justice that the case should proceed. The application had been made promptly and the failure to comply with the order for directions had been unintentional. He accepted that there had been a failure to comply with CPR part 15.5, but submitted that both parties had been in breach. Further, he submitted that to strike out the action would amount to an interference with his rights under articles 6 and 8 of the European Convention on Human Rights.

The first defendant contented that the continuance of the action would amount to an interference with its rights under article 10 of the Convention and also the article 10 rights of third parties. Consideration was given to the 'Spycatcher principle' as set out in A-G v Newspaper Publishing plc [1987] 3 All ER 276 and section 6 of the Human Rights Act 1997 (the 1997 act). The application would be refused.

(1) In the instant case, it was common ground that if relief was not granted, the claimant could start a new action against the first defendant. Accordingly, to refuse relief would not be a material interference with the claimant's rights under either article 6 or 8 of the Convention. Further, the submission that the continuance of the action would interfere with the first defendant's rights under article 10 of the Convention was not consistent with its stance that it did not have either the means to publish or the intention of publishing any further information relating to a sexual relationship between the claimant and the second defendant.

Accordingly, it was hard to see what serious interference with the first defendant's rights under article 10 of the Convention there could be. As pleaded at the time of the instant hearing, it could not be said that the claim for damages could give rise to any significant award, if it could give rise to an award at all. The claim for an injunction had been overtaken by events, with the claimant's identity being widely known. Accordingly, there was no purpose to be served by granting relief under CPR part 3.9 (see [68], [69], [71]-[73] of the judgment). Chapple v Williams [1999] CPLR 731 considered; R v Department of Health, ex p Source Informatics Ltd [2000] 1 All ER 786 considered; The Jockey Club v Buffham [2002] All ER (D) 65 (Sep) considered; Peck v United Kingdom (Application 44647/98) [2003] All ER (D) 255 (Jan) considered; Flaxman-Binns v Lincolnshire County Council [2004] All ER (D) 88 (Apr) considered; Welsh v Parnianzadeh [2004] All ER (D) 170 (Dec) considered; JIH v News Group Newspapers Ltd [2011] All ER (D) 234 (Jan) considered; Hutcheson (formerly known as WER) v Popdog Ltd (formerly known as REW) [2011] All ER (D) 178 (Dec) considered.

(2) That non-disclosure orders were binding on third parties was one of the main reasons that claimants apply for non-disclosure or privacy injunctions. But the court was required by section 6 of the 1997 act not to act in a manner incompatible with the Convention rights. It followed that in cases in which relief granted might affect the exercise of the Convention right of freedom of expression, the court could not give the same consideration to the autonomy of the parties to the action as it commonly gave to the autonomy of the parties to the litigation which did not have the same effect on the Convention rights of third parties (see [78] of the judgment).

In the instant case, the agreement to extend generally the time for service of the defences had the effect of interfering with the article 10 rights of third parties, including by the continuation of the anonymity order. That had clearly been an intentional breach of CPR part 15.5 and the explanation had not been a good one. The breach was all the more serious that it had not been disclosed to the court on either of the two applications to the court to lift the anonymity order. The parties had gone further by asking the court to continue the interim injunction (including the anonymity order) for an indefinite period into the future, without having explained why that interference with the article 10 rights of third parties was necessary or proportionate. It was plain that there had been a serious breach of the order of 20 April 2011 no later than 1 February 2012 (see [82], [84], [85], [87] of the judgment). Relief under CPR part 3.9 would be refused on the grounds that the claimant had been party to two serious and intentional breaches, one of the rules of court and one of the order of 20 April 2011. The action would remain struck out (see [89], [90] of the judgment). A-G v Newspaper Publishing plc [1987] 3 All ER 276 applied.

Per curiam: Claimants and defendants must prosecute a claim for breach of confidence and privacy so as to ensure that the interference with the article 10 rights of third parties is kept to as short a time as is possible. Where applications are made for interim non-disclosure orders, both parties must have in mind that the judge is normally bound to give a reasoned judgment, even at that early stage of the proceedings (see [111] of the judgment).

Hugh Tomlinson QC (instructed by Schillings) for the claimant; Richard Spearman QC & Jacob Dean (instructed by Simons Muirhead & Burton) for the first defendant; The second defendant did not appear and was not represented.