On 29 January 2010, the story of John Terry’s alleged affair with Wayne Bridge’s ex-girlfriend, lingerie model Vanessa Perroncel, exploded into the public domain, receiving intense media scrutiny.
This was, by any account, a PR disaster for the England and Chelsea football star. It attracted the attention not only of the red-tops (for whom “kiss and tell” stories are standard fare), but also of freedom-of-speech lobbyists. Terry had made a miscalculated attempt to prevent publication of the story by applying to the High Court for a so-called “super-injunction”. 1
Delivering his judgment 2 on Terry’s application, Tugendhat J noted that the effect of the interim order sought was likely to be that of a permanent injunction without any trial. Not satisfied that Terry had any real concern over his own privacy as opposed to his sponsorship deals, the judge refused to grant an injunction for any longer than it took him to prepare his judgment (one week). The judge was also unimpressed by the comprehensive derogations from open justice sought by Terry and his team and troubled by the poor quality of the evidence put forward in support of the application (there was no evidence from Terry himself or from Perroncel).
In October 2009, there was a public outcry when it emerged that oil company, Trafigura, had obtained a super-injunction, which, on the face of it, appeared to prevent the Guardian from reporting a question that had been tabled in the House of Commons. Perhaps with a nod to popular opinion, in this latest decision the High Court has made it quite clear that those who apply for a super-injunction should expect their application to be examined in detail, and that derogations from the normal principle of open justice will only be ordered when there are strong grounds to justify making such derogations. Examples of such grounds might be the protection of life, protection against torture and protection of national security, all of which are highly unlikely to come into play in most actions for breach of confidence or misuse of private information.
Background
On the afternoon of Friday 22 January 2010, Terry’s firm of solicitors, Schillings, applied for an injunction on Terry’s behalf, without giving any notice of the application to any respondent or the media. At a hearing in private the same afternoon and after hearing submissions from Richard Spearman QC on Terry’s behalf, Tugendhat J granted an interim injunction prohibiting the publication of certain information, with the caveat that it would only last until he delivered his decision on the application. His judgment was handed down a week later.
The order sought by Terry was to prohibit the publication of information and documents in four categories:
| (a) |
the fact of a specified personal relationship between “LNS” (now known to be Terry) and another person (now known to be Perroncel); |
| (b) |
details of the relationship, including certain specific consequences of it; |
| (c) |
information leading to the identification of Terry or Perroncel; and |
| (d) |
any photographs evidencing or relating to the fact or details of the relationship. |
No respondent or third party was named in the order, but the News of the World was named in the evidence accompanying the application.
Evidence
The evidence supporting Terry’s application was a nine-page witness statement made by his solicitor, to which various documents were exhibited. The solicitor’s statement set out that, two days before the application, he and another solicitor from Schillings had spoken to two of Terry’s business partners, who had told them of Terry’s “very grave concern” over the possibility of intrusion into Terry’s personal life, which had arisen because Terry was aware of “rumours” circulating among the football community concerning Terry’s private life. According to the witness statement, Terry’s business partners had then met Perroncel at a London hotel, she had confirmed to them that she considered the fact and details of her relationship with Terry to be private, she did not want any such information to become public, and she had signed a confidentiality agreement and side letter confirming those wishes at the meeting. The side letter and confidentiality agreement, both of which were dated 21 January 2010, were exhibited to Terry’s solicitor’s witness statement.
Issues
The issues raised by Terry’s application included:
| (a) |
whether the limitations on, or defences to, a claim in misuse of private information on the grounds of public interest were such that an injunction ought to be granted, and whether or not the rule in Bonnard v Perryman3 applied; |
| (b) |
whether the court should order the following derogations from open justice, fairness and the Civil Procedure Rules (CPR) (all of which were sought by Terry):
- a private hearing;
- anonymity for Terry and Perroncel;
- the sealing of the entire court file;
- a prohibition on the publication of the existence of the proceedings until after the conclusion of any trial “or further order in the meantime”;
- that despite the CPR4 Terry should not be required to provide a copy of any materials read by the judge and/or a note of the hearing to any third party served with a copy of the order;
- that the order should be made until trial or further order;5 and
- that time for service of the Claim Form should be extended “generally until 21 days after the identification of the respondent(s) by the claimant”; and
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| (c) |
the scope of any prohibition that might be granted, given that, according to the evidence in support of the application, the information was already circulating widely by word of mouth. |
Breach of confidence
Tugendhat J was not satisfied that Terry was likely to establish at any trial that there had been a breach of a duty of confidence owed to him: there was insufficient evidence as to what Terry and Perroncel had each told to whom and in what circumstances. The evidence went no further than to make Terry likely to establish that the fact of his relationship with Perroncel was known to other persons. The evidence did not identify any details of the relationship between Terry and Perroncel that were said to be known by anyone other than Terry and Perroncel, and there was no evidence that any photographs had been produced or disclosed in confidence.
Misuse of private information
In a claim for misuse of private information, a claimant first has to establish that he has a reasonable expectation of privacy in relation to the information of which disclosure is threatened. If there is such an expectation, the next question is whether there is a justification for the disclosure, and whether a permanent injunction would be a necessary and proportionate remedy, having regard to the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
Tugendhat J found insufficient evidence to establish that there was a real threat to publish photographs or details in relation to which Terry had a reasonable expectation of privacy. He accepted that a real threat existed to publish information about the fact of the relationship, but was not satisfied that Terry was likely to succeed in establishing at trial that publication of the fact of the relationship should not be allowed. The judge was asked to have regard to the privacy of Perroncel and certain interested persons (who were not named), but was not sympathetic to this, holding that respect for the dignity and autonomy of those individuals required that, if practicable, they should speak for themselves.
In the absence of hearing from the media or any respondent to the application, the judge was not satisfied that Terry was likely to succeed in defeating a defence that it would be in the public interest for the material to be published.
Defamation
Although the words that the News of the World and/or other media were allegedly threatening to publish were not yet known, the judge thought it very likely that they would arguably be defamatory. He commented that Terry would not choose to sue in defamation, because any person intending to publish the story would be likely to do so in words for which he would be able to say that he had one or other of the defences available in defamation. If so, no interim injunction could be granted, applying the rule in Bonnard v Perryman.
On the basis of the evidence before him, Tugendhat J thought it likely that the purpose of Terry’s complaint was to protect his reputation, and not any other aspect of his private life. The most Terry was said to have expressed was “grave concern over the possibility of intrusion” into his private life: the judge noted that there was no mention of any personal distress, and that Terry appeared to have a very robust personality. He did not consider it likely that the concern expressed on Terry’s behalf for the private lives of Perroncel and other interested persons was altruistic. The judge concluded that the claim was essentially a business matter for Terry, and that the real basis for his concern was likely to be the impact of any adverse publicity on his business in terms of earning sponsorship and similar income. Accordingly, the rule in Bonnard v Perryman precluded the grant of an injunction.
The derogations from open justice, fairness and the CPR
Having ordered in the first instance that the application should be heard in private and the proceedings anonymised, Tugendhat J stated, when delivering his judgment, that he could not recall any order that had been made with such comprehensive derogations as those sought by Terry. He considered that their cumulative effect was to place upon any respondent or third party the burden and financial risk of applying to the court to have any injunction that might be granted set aside; a person considering making such an application would have to do so without knowing anything about the basis on which the injunction had been granted.
Tugendhat J believed that Terry was, in fact, unlikely ever to serve the Claim Form on any respondent, so no trial was likely to be held. He considered that the real targets of the application were media third parties who were not respondents: the only third parties who would ever hear of the proceedings were those whom Terry chose to notify, and nobody else would have any means of discovering that an order had been made at all. In the judge’s view, the effect of the interim injunction sought was likely to be that of a permanent injunction (without any trial), binding on any person whom Terry might choose to notify that the order existed.
Tugendhat J acknowledged that there was an obvious difficulty in complying with the principle of open justice and giving an effective remedy for threatened misuse of private information; however, he did not believe that the answer was, as a matter of routine, to afford privacy claimants comprehensive derogations from the right to a fair trial and the right to freedom of expression. 6
Two explanations were put forward by Terry’s legal team for not notifying anyone of the application. The judge made clear that he could not accept the first of these, which was that Terry did not know of any media organisation with a specific interest in the story. The evidence in support of Terry’s application showed that the News of the World were intending to publish a story about him on 24 January 2010, and Tugendhat J held that they should have been given notice. Nor could the judge accept the second explanation, which was that claimants, who might be of limited means, should not be obliged to serve what might be a substantial body of evidence on a large number of media non-parties, and that instead, as a matter of common sense and economy, the obligation to serve should be confined to those media organisations that the claimant has reason to believe have displayed an interest in publishing the story in question. Clearly, John Terry was not of limited means, and the judge added that he had already held, on the evidence before him, that the News of the World had shown a sufficient interest in publication to warrant being placed on notice of the application.
Had Tugendhat J granted the injunction sought, he would have required a return date, and he would not have ordered the sealing of the whole court file but (at most) a confidential schedule. Nor would he have granted the prohibition on reporting the fact of the order that had been sought by Terry. Mr Spearman had not cited any example where there had been an order which prohibited disclosure of the fact that an order had been made, and which was expressed to run for a period continuing after service on the respondent and without a return date. The judge was not aware of what justification there might be for such an order, but such grounds would have to be set out in the evidence and no such evidence had been adduced in support of Terry’s application.
Deficiencies in the evidence in support of the application
In the judge’s view, the fact that the source for the information contained in the solicitor’s witness statement was not Terry, or Perroncel, but Terry’s business partners, was “a matter of concern” and it meant that the evidence as to statements made by Perroncel and Terry was, effectively, “double hearsay”. Having inferred that the business partners were engaged in promoting Terry for sponsorship deals, and that their business interest was to protect Terry’s reputation, he expressed “serious doubt” as to whether the information sourced through the business partners was “full and frank”.
The judge was also “troubled” by the confidentiality agreement and side letter signed by Perroncel, noting that there was little explanation of how the business partners had come to be talking to her. While the impression conveyed by the solicitor’s evidence was that the relationship between Terry and Perroncel was one between equals, the confidentiality agreement signed by Perroncel was similar in form to one that an employer might require a PA to sign. The judge was “left wondering” whether the £1 consideration referred to in the confidentiality agreement was the only consideration, and he did not feel confident that the confidentiality agreement and side letter expressed Perroncel’s personal wishes, as opposed to what she had been willing to agree to at Terry’s request, for whatever reason.
Had the judge granted the injunction sought by Terry, he would have required undertakings that at the return date Terry and Perroncel would submit signed statements, or that there should be a satisfactory explanation as to why they had not done so.
Practical significance
When faced with the prospect of damaging allegations entering the public domain, the instinctive reaction of the subject of those allegations is invariably to want to prevent publication; however, as the furore over John Terry’s alleged affair shows, making a miscalculated attempt to injunct publication is likely to result in heightened media interest and negative PR consequences.
If a person’s main concern is to protect reputation, it is generally inadvisable to apply for an injunction because of the rule in Bonnard v Perryman. This does not necessarily mean that nothing can be done – the person may, for example, consider whether to engage with the media on a legal or PR basis to attack or counter the allegations before publication.
If the true nub of the person’s concern is to protect confidential or private information, it may be appropriate to apply for an injunction. If an application is made, the applicant should give first-hand witness evidence as to the nature of the information and the likely impact that disclosure would have on them. If there is an imminent threat of publication, the time to apply for an injunction may be short. Injunctions are, however, regarded as a draconian remedy, so the evidence to support an application must be as robust as it can be in the circumstances. In Terry’s case, the judge pointed out that he could not place much weight on “double hearsay” evidence.
If it is in fact appropriate to apply for any derogations from the principle of open justice, the right to a fair trial or the provisions of the CPR, the reasons should be made clear and specific evidence should be adduced. It can perhaps be surmised from LNS v Persons Unknown that judges are, and will continue to be, amenable to ordering that hearings of applications for privacy injunctions be held in private, and that proceedings be anonymised. In the absence of compelling reasons and evidence, however, it is unlikely that they will order other derogations, such as sealing the entire court file or prohibiting publication of the existence of the proceedings. Given the judge’s comments, it is perhaps even more unlikely that they will make any order for an injunction without a return date.
The case is a resounding victory for freedom of speech. The days of super-injunctions being granted almost routinely in privacy cases now appear to be over.
Catherine Fehler & Eleanor Steyn
Article to be published in Entertainment Law Review.
1 A class of injunction that effectively gags the respondent and any third party placed on notice of the order, preventing them from disclosing anything about the parties to a dispute, the dispute itself or the fact that an injunction has been made.
2 LNS v Persons Unknown [2010] EWHC 119 (QB)
3 [1891] 2 Ch 269. The rule provides that an interim injunction should not be granted where a defendant is proposing to publish defamatory material that he alleges is true, unless a claimant can show that the defendant is motivated by malice or that the defence of justification is bound to fail.
4 Practice Direction 25, para. 9.2, which provides that where a third party served with an interim injunction requests a copy of any materials read by the judge or a note of the hearing, the applicant must comply promptly with the request, unless the court orders otherwise.
5 Whereas in orders made without notice to any other party, CPR Practice Direction 25, para. 5 provides that there must be a return date. 6 I.e. under Arts 6 and 10 of the ECHR.
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