Going to injunct? Don't forget to tell the media
A Local Authority v W, L, W and T & R (By the Children's Guardian) [2005] EWHC 1564 (Fam)
The president of the Family Division, Lord Justice Potter, has warned those applying for an injunction that may inhibit reporting involving young people and incapacitated adults of the need, in all but the most exceptional cases, to alert the media first.
A footnote to his judgment reiterates the need to use the Press Association's (PA) new injunction application alert service, run through the PA's CopyDirect and specifically set up for the purpose of facilitating the guidance handed down earlier this year by Lord Justice Potter's predecessor, Dame Elizabeth Butler-Sloss.
In a criminal case where the interests of the young and vulnerable are potentially jeopardised by its reporting and an application for reporting restrictions has been made to the Family Division, the court has the unenviable task of weighing the various rights affected - those of the individual defendant; the children; and the media to inform and the public to be informed that justice is being done. The court's approach to such matters was set out in Re S (a child) (identification: restriction on publication) [2004] EWCA Civ 963, [2004] Fam 43(CA), [2004] UKML47 and [2004] 3 FCR 407(HL), and also addressed in Cream Holdings Ltd v Bannerjee [2004] UKHL 44 (see [2004] Gazette, 18 November, 28).
A Local Authority concerned a woman who had admitted causing grievous bodily harm to her partner, who was the father of one of her children, by knowingly infecting him with the HIV virus. A local council had applied for reporting restrictions to prevent any identification of the defendant or the man in question that was calculated or likely to lead to the identification of the children, who were not involved in the criminal trial but were the subject of care proceedings.
An injunction had originally been granted by a County Court judge sitting as a judge of the Family Division, under the inherent jurisdiction of the court. But the media had not been notified of the injunction application via CopyDirect in line with the guidance of Dame Elizabeth.
The matter eventually came before Lord Justice Potter, sitting in the High Court Family Division, after the application had been served via CopyDirect on the media to give them the opportunity to make submissions. Lord Justice Potter found that both articles 8 and 10 of the European Convention on Human Rights were engaged - the right to respect of private life for the children and the right to freedom of expression of the media, respectively.
However, on the facts before him, he found that the high publicity would fan the flames of the emotive subject of AIDS and that 'what may otherwise die down as a nine-day wonder will be elevated into a widespread and far longer-lasting inroad into the privacy and family life to which these children are entitled and of which they are in such need'.
Concluding that 'there is likely to be serious long-term and short-term prejudice to the children if the injunction is not granted', he granted the injunction.
But the footnote reminder to the injunction is of additional interest, given that he used it as an 'opportunity of emphasising the existence of the president's practice direction... as well as the helpful further advice afforded by the practice note'.
In March 2005, Dame Elizabeth issued a practice direction applying to 'any application in the Family Division, including those founded on convention rights, for an order restricting publication of information about children or incapacitated adults'.
The purpose of this and the practice note, issued jointly by the Official Solicitor and the Acting Director of Legal Services at the Children and Family Court Advisory and Support Service, is to provide practical guidance to assist the court in ensuring that the rights of the various parties are taken into account and to ensure compliance with section 12(2) of the Human Rights Act 1998, which provides as follows: 'If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied: (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.'
To facilitate the application process, the PA launched the injunction alert service administered through CopyDirect, a free facility to which media organisations can subscribe, providing access to the guidance notes, contact details of media organisations and standard draft documentation for claimants. The service should be used in any case in which an application is being made in the Family Division for any injunction that would restrict the media's article 10 rights to free expression.
Importantly, it will do the job of notifying the media organisations of any such application - 'service of applications via the CopyDirect service should henceforth be the norm,' said Dame Elizabeth. And while the court retains the power to make without notice orders, 'such cases will be exceptional, and an order will always give persons affected liberty to apply to vary or discharge it at short notice'.
But it should not be taken as a green light for claimants to sit back and let the service do all the work. 'Any order, if made, must be served in the normal way by post or fax,' says Mike Dodd, the PA's media law specialist. 'CopyDirect is not a means of valid service of reporting restriction orders.'
The practicalities for using the injunction alert service are set out on its own Web site, accessed through the PA Media Lawyer site at: www.services.press.net/pressnet/medialawyer/index.jsp. In summary, it provides as follows:
Lord Justice Potter said: 'Whereas it will almost invariably be practicable and appropriate to give notice, however, short, to the local press in a case of high public interest, the direction draws attention to the same ability to notify national news media by service of notices of such applications via the Press Association's CopyDirect service.'
While the decision to grant the injunction will no doubt disappoint the media, the footnote must be a considerable silver lining to that cloud. Lord Justice Potter concluded that parties 'concerned with an application of the instant kind should be astute to plan in advance for such an application to be heard, and so to avoid placing the judge to whom the application is made in a position of urgency whereby the judge may feel obliged to make an order which, if fully argued on notice, might not have been made'.
It is quite possible that, in future, any ambush injunction with no exceptional circumstances and one that disregards the guidelines could result in a cost penalty. A failure to take advantage of this free and easy service could turn out to be an expensive mistake.
By Amber Melville-Brown, David Price Solicitors and Advocates, London
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