Privacy and Injunctions - Evidence - Parliament

Hugh Tomlinson QC, Schillings, and Carter Ruck Solicitors—Oral evidence (QQ 65–118)
Hugh Tomlinson: That would be a plausible abstract theory were it not for the case
that the newspapers turn up represented by solicitor and leading counsel to indicate that
they do not oppose.
Q89 Lord Black of Brentwood: Because they know what is going to follow.
Hugh Tomlinson: No. They have been criticised by judges on a number of
occasions for wasting court time and costs. They turn up to say they do not oppose the
injunction. They have already spent the money on instructing their lawyers to turn up to say
they do not oppose.
Q90 Lord Black of Brentwood: But the case might continue and at some point
go to a full trial.
Hugh Tomlinson: But the reason they do not oppose is that there are no good
grounds for opposing. There are now public judgments, as people have pointed out. The
judges explain what has happened and the detail and there is the absence of any public
interest.
Gideon Benaim: It is an interesting question, but the reality is that in 99% of cases
the newspapers are wealthier than the individuals who are trying to protect their privacy, so
that also needs to be taken into account.
Q91 Lord Black of Brentwood: Let me press the point about commercial
viability because it was raised in some of the written material you kindly gave us. The
question is whether the commercial viability of the press should be a public interest
consideration. We heard reference to some of the very early judgments after the Human
Rights Act was passed. Lord Woolf in the Flitcroft case made the point that, unless
newspapers published material people wanted to read, those newspapers might cease to
exist and press freedom is diminished as a result. In his speech last week the Lord Chief
Justice returned to that point: that if we want a free press, we must have a commercially
viable press, which means people have to read things in which they are interested. Do I take
it you do not agree with that?
Alasdair Pepper: If I may go back to your previous question, I want to deal with
insurance. Claimants frequently obtain insurance for costs in all sorts of actions, including
privacy actions, and newspapers are no exception. Many of them have existing insurance
coverage anyway; if they do not, they can go out to the market like anybody else and obtain
insurance, if they have a good case.
Q92 Lord Black of Brentwood: Which is not cheap either.
Alasdair Pepper: The premiums are payable at the end of the action. If you win the
action, they are usually payable by the other side. If you are being sued in a confidence case
by a claimant who has money, say a wealthy celebrity, and you take out an insurance
premium, you expect the celebrity to be able to pay that premium if you win at the end of
the action.
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