Privacy and Injunctions - Evidence - Parliament

Dr Andrew Scott—Written evidence
The public disquiet that met the imposition by Mr Justice Eady of an injunction contra
mundum in OPQ v BJM and CJM [2011] EWHC 1059 (QB) was based upon ignorance
of the circumstances. Unusually in that instance, the case was shortly to move to a
final determination without trial with the award of a permanent injunction (in fact,
the rubber-stamping of a settlement reached between the parties). In moving from an
interim injunction to a final order, those media organisations that had been covered
by the Spycatcher principle while the case was ongoing and who knew (at least some
of) the details, would be free to publish once the interim injunction was lifted in
favour of the final remedy. The judge had concluded that the ultimate balancing
exercise that involved an intense scrutiny on the facts of the case came down in
favour of protecting the privacy of the claimant and the interests of the family
members over the right to freedom of expression of (a) the blackmailing defendants
and (b) media organisations generally. The media did not contest this.
Hence, pragmatically, it would seem that the award of the final injunction contra
mundum was entirely appropriate. This is not to say that such orders do not remain
"an innovation in search of a fully coherent principle or rationale". 392 It may be that
they can be justified under the new rights jurisprudence as being necessitated by the
need properly to vindicate the Article 8 rights of the claimant.
c. What can be done about the cost of obtaining a privacy injunction? Whilst
individuals the subject of widespread and persistent media coverage often have the
financial means to pursue injunctions, could a cheaper mechanism be created allowing
those without similar financial resources access to the same legal protection?
In principle, an alternative, less costly mechanism could be administered by a media
regulatory body. Indeed, given the parlous state of litigation funding at present, the
introduction of some less cotly alternative mechanism is perhaps highly desirable. If
this body operated on the basis of voluntary subscription, however, this would
introduce strong perverse incentives for publishers to absent themselves from the
regime. Moreover, even a statutory regulator would cover only those defendants
who fell within its purview.
It should be noted that the revisions to the current regime proposed in the
introductory comments above would involve a significant simplification of the task to
be performed by the court at the interim stage. Applications could be determined
easily on the papers only. This would entail a reduction in cost if a court-based
approach was maintained, but would also facilitate the transfer of the task to some
other decision-making body.
d. Are injunctions and appeals regarding injunctions being dealt with by the courts
sufficiently quickly to minimise either (where the injunction is granted or upheld)
prolonged unjustifiable distress for the individual or (where an injunction is
overturned or not granted) the risk of news losing its current topical value?
Appeals against decisions made at the interim stage in publication cases may be
treated as urgent and heard immediately or within a few days in accordance with the
guidelines set out in Unilever Plc v Chefaro Proprietaries Ltd (Application for Expedited
Appeal) [1995] 1 WLR 243. These guidelines prescribe that an expedited hearing may
be arranged, inter alia, where a party may otherwise lose its livelihood, business or
home or suffer irreparable loss or extraordinary hardship; the appeal will otherwise
become futile, or where there would be serious detriment to the interests of
392 Stanley, The Law of Confidentiality: a restatement (2008) Hart Publishing, at 121.
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