Privacy and Injunctions - Evidence - Parliament

Lord Grabiner QC and Dr Kirsty Hughes—Written evidence
As to contra mundum injunctions, we would welcome appellate consideration of the
circumstances in which they can be used in support of an individual’s right to privacy under
Article 8. This is particularly so in the light of the recent decision in OPQ v BJM [2011]
EWHC 1059 (QB), where Eady J held that, in view of the Buffham 109 problem, a final contra
mundum injunction was the only way in which the court could fulfil its obligations under the
HRA to protect the claimant’s Article 8 rights. The Buffham problem refers to the
anomalous situation where a claimant is better protected by an interim injunction, which
binds third parties who have notice of it under the Spycatcher doctrine, than by a permanent
injunction granted after trial, which only operates in personam to bind the defendant(s). The
Court of Appeal is due to reconsider the Buffham case this term. It would thus be
premature to express any firm view. However, we consider that there may be grounds for
arguing that properly granted final contra mundum injunctions represent a viable means of
counteracting the Buffham problem, thereby removing the existing incentive to claimants to
prolong the life of any interim injunction by seeking to delay the trial of the action.
The costs of obtaining a privacy injunction
It is an old aphorism that ‘the law, like the Ritz Hotel, is open to all’; and it probably rings
truer today than ever before. Given the undeniably high costs involved in litigating privacy
cases, it is unrealistic to imagine that a person without means could, or sensibly would, seek
to obtain a super-injunction or an anonymised injunction. We are not aware of any means
of overcoming this problem. In addition to the expense associated with taking legal advice,
exploring the facts and documents in order to record the case history in chronological
sequence is a time-consuming exercise, which benefits hugely from legal expertise. We do
not believe that legal aid is available in privacy cases nor, in view of the planned cuts, is there
likely to be. Moreover, in MGN Ltd v United Kingdom (2011) 53 EHRR 5, the European
Court of Human Rights held unanimously that the liability imposed on the defendant (who
had been unsuccessful before the domestic courts) to pay the success fees attached to the
claimant’s conditional fee agreement, pursuant to which the claimant had conducted both
appeals to the House of Lords, was so disproportionate that it infringed the defendant’s
right to freedom of expression under Article 10. It is therefore questionable whether, and if
so, in what circumstances, a conditional fee agreement which provides for a success fee of
close to one hundred percent can properly be used by a claimant in a privacy case.
The speed with which privacy injunctions are being dealt
As to whether litigants are being heard promptly and by a judge with suitable experience,
we believe the courts provide a commendable service. In urgent cases, a judge is on call at
all times including weekends, during the vacation, and outside of regular court hours. The
judiciary rely on the good sense and experience of solicitors and counsel to be aware of this
system for dealing with urgent matters, and to appreciate when it is appropriate to apply for
emergency relief.
Similar procedures exist to enable a party dissatisfied with the decision of the judge at first
instance to appeal to the Court of Appeal. However, an interesting and rather telling
feature of the cases in which anonymised injunctions or super-injunctions are sought is that
they are rarely appealed. The natural inference to which this gives rise is that the
unsuccessful party recognises the correctness of the judge’s decision at first instance and/or
109 Jockey Club v Buffham [2003] QB 462.
340