Privacy and Injunctions - Evidence - Parliament

David Price QC, Gavin Millar QC, Gillian Phillips, solicitor, Director of Editorial Legal
Services ,The Guardian, and Reynolds Porter Chamberlain—Oral evidence (QQ 33–64)
such as this being able quantitatively or qualitatively to say what the chilling effect is. One
expresses an intuitive view about it, and that is really as far as it can go.
Q821 Chairman: But you and Mr Price are both of the view that the most
aggressive tabloid end of the market is perhaps more restrained today than it was 10 years
ago.
Gavin Millar: Definitely.
David Price: Yes, and in addition the phone-hacking case has had an effect on the
way newspapers have been going about things in the past few months. They were trying to
run up a head of steam on the back of these “bonkers privacy injunctions”, as they were
portrayed. I think some of them were bonkers, but that is just my view. Newspapers are
now on the back foot, so they are running fewer stories.
I am not really in the media camp as such; I have a private practice in which I act for a
lot of claimants. I started my practice doing predominantly claimant work; now I do
defendant work predominantly, but I have acted for a large number of individuals who have
brought pre-publication injunctions.
Q822 Chairman: Gillian Phillips, obviously at your end of the market you
experience injunctions. A famous case is one in which my colleague, Mr Farrelly, is an
expert, but generally these are more towards the bottom end of the market. Is it your
understanding that they too have seen injunctions dry up recently?
Gillian Phillips: You are right. The genuine privacy injunction that David has been
talking about does not really affect The Guardian, save to the extent that previously we were
or were not being served with them, or notified of them. A lot of procedural problems
were addressed in the John Terry case primarily and now in the report of the Master of the
Rolls. The procedural side of things is probably much better sorted now. We have an
opportunity to know what is going on.
On breach of confidence injunctions such as Trafigura, traditionally we have always
had one or two a year, or threats of one or two a year, and that probably continues. The
trouble with Trafigura is that it strayed into some of this; it was super because you could not
report it, and it was anonymised because you could not report the name of the claimant. To
that extent there is overlap between them, but they are very different beasts in substance.
Q823 Paul Farrelly: My familiarity with super-injunctions that are anonymised and
those that apply to anybody who becomes aware of them is as a result of the Trafigura case.
I just want to explore a few issues that arose in my mind when I weighed whether or not to
use parliamentary privilege, and decided to do so, that might potentially be relevant to
privacy, which we are discussing here. The extent of this injunction seemed to me to be the
latest wheeze that came off a clever solicitor’s word processor. It was looked at and
consideration was given to what extra bell or whistle could be put on it to ask a judge
effectively to rubber stamp it. I do not know whether this is as true in privacy cases in your
experience, but the question is whether this has been a lawyer-led industry, as it were, with
which judges have just gone along.
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