There is clearly a debate to be had as regards so called “super injunctions”, privacy and prior restraint issues. However the CTB case is not the one to have as the battleground if the press want things to go their own way.
Here, as in all of the published judgements in anonymised injunction cases on privacy, the courts have carried out the relevant balancing test. On one hand, they have the right to privacy and on the other the right to free expression. The judges did not invent these – instead they are in the law as laid down by Parliament. It is quite clear that each case turns on its own merits and the judges have not been afraid to refuse or withdraw interim injunctions (in the John Terry case, for example).
Here we have a case where, as seems to be standard in recent cases, including Fred Goodwin, the press do not advance any public interest argument at all. Still the judges carry out their balancing test, but the absence of a public interest (rather than of interest to the public) makes it far more likely that an interim injunction will be granted.
It should also be noted that these orders, at this stage, are interim orders pending a full trial where each side would be able to argue its case and put forward witness evidence in support.
It is also noteworthy that, from what I have seen, the recent tack of the press is not necessarily to oppose an interim injunction, but not to consent, thus allowing them to say that they have been “gagged” by the evil celebrity plaintiff.
One stated reason for the anonymised injunction and the strict rules applicable, is to stop jigsaw identification. In more than one of the recent causes celebres there have been articles in the press or on newspaper’s websites which, standing alone, seem to be there for little or no reason, but are in fact one way of the paper to creep round the orders by way, for example, of gushing references to someone being a “family man” and to his glowing spouse etc. The editor clearly knows what he is doing, but there is nothing actually in the article to break the order. In fact CTB and his family have recently been prominent in the press for, I am sure, this very reason.
Turning specifically to CTB and to Ms Thomas, there are four matters which seem to have been ignored by the media as she has travelled round the press and TV studios weeping into her hankie. (1) She was represented at the hearings in this case, as she is one of the named parties. (2) She did not oppose the granting of the interim injunction against herself. (3) She failed to produce to the court a statement or any evidence to contradict that of CTB, thus allowing the court to form a view that there may well have been a sort of blackmail afoot here. (4) The presence of photographers referred to at the hotels where Ms Thomas arranged latterly to see CTB suggested to the court that there was some sort of sting operation in effect.
In addition, neither the newspaper nor Ms Thomas have appealed against the granting of the interim orders, which they could have done if it was felt by their advisers that the court had erred in making the order.
If this were a libel case for false accusations, then the courts have for many years worked on the basis that a finding in favour of a plaintiff and an award of damages will suffice.
However in connection with privacy matters, there needs to be a system of prior restraint open to the courts, though it ought not to be granted automatically. Once the toothpaste is out of the tube, then it can’t go back in. A later award of damages for breach of privacy, as per Mosley, is not sufficient.
We now turn briefly to the failure of the agents for CTB to obtain a relevant order here in Scotland because, in the absence of such, the Sunday Herald felt free to publish yesterday. But already publications in Spain, USA and elsewhere had printed the name. The lack of any application to the Court of Session however left the door wide open for a publication of the type which took place, and this has been known to be the case since the days of Spycatcher, when the book could be bought in Gretna but not in Carlisle, for example.
So, in this case, where we have, allegedly, the newspaper in question working, whether innocent or not, with an apparent blackmailer (as stated by the judge but not specifically alleged by CTB) for the financial gain of one, other or both defendants, the brave Mr Hemming felt it appropriate to jump in today and name CTB.
This was, apparently, to stop the secret imprisonment of thousands of twitterers, notwithstanding that the Attorney General had stated, minutes before, that no such proceedings (and whether or not in secret) were presently in contemplation.
This effort to link the issue with secret imprisonment smacks of the campaign by Mr Hemming re the Family Courts (referred to in detail at http://www.head oflegal.com) and where he was shown to be spouting arrant nonsense.
It is quite clear that Mr Hemming’s disclosure today has only been in the interest of News International, an alleged blackmailer, and Mr Hemming himself. He has abused the privilege he has as a Parliamentarian, and to what end?
As far as the wider argument goes, all the good generated by the “outing” of the Trafigura injunction has been lost as a result of the case of CTB being seen as the present battle ground.
The only people frankly to emerge from this mess with any credit are the judges – they have applied the law as given to them by Parliament – have applied the tests laid down in the legislation – and have tried to uphold the Rule of Law, despite the efforts of others such as Mr Hemming to determine what the outcome should be.
Do we want to be in a situation where the papers are the ultimate judges as to what private mistakes are aired for the prurient interest of some members of the public? The same fine and upstanding press who seem to have done more bugging than even MI5 as described in Spycatcher!