In early March 2012 footballer Ryan Giggs's claim for damages against News Group Newspapers (NGN) was struck out. Justice Tugendhat 's judgment of March 2 2012 refused reinstatement of the claim on the grounds that Giggs had been party to two serious breaches - one of the rules of court and the other of a court order issued on April 20 2011.
The proceedings concerned an article published on April 14 2011 by The Sun newspaper under the headline: "Footie Star's Affair with Big Bro Imogen". On the day after publication of the article, which did not name him, Giggs applied for and obtained an order against NGN, which publishes The Sun, and Imogen Thomas. The order anonymised Giggs, who was referred to as 'CTB', and prohibited publication of further details of his purported relationship with Thomas. Giggs then issued proceedings against Thomas and NGN for a permanent injunction and damages for breach of confidence and misuse of private information.
There followed tangled legal proceedings between Giggs, NGN and Thomas. CTB's identity was soon widely known. Questions were raised in Parliament about super-injunctions and anonymity orders. A member of Parliament controversially named Giggs as the footballer in question in the House of Commons, thereby ending weeks of online speculation. An allegation of blackmail by Thomas was made and withdrawn, and repeated efforts by NGN to lift the anonymity order failed.
The claim against NGN came back before the courts for the final time on February 21 2012 - Giggs's claim against Thomas for an injunction, damages and aggravated damages settled by agreement earlier.
The circumstances were unusual, as the hearing concerned not the trial of the claim, but an application for relief from sanction under Civil Procedure Rule (CPR) 3.9, Giggs's claim having been automatically struck out in November 2011 for failure to comply with a court direction. The evidence in support of the application explained that his lawyers had mistakenly failed to make an appointment with the clerk of the lists to fix a trial date. It was submitted that Giggs had always wanted to continue the proceedings and should not be penalised for the delay by his solicitor.
The procedural background to the hearing is important. The original trial date was vacated on November 2 2011, following an application by Giggs the day before. At the time of the application, no defence had been served by NGN. This was further to an agreement between the parties to a general stay of service of the defence. This agreement was reached in May 2011, but neither party had notified the court.
The judge found that the general stay and the failure to notify the court thereof were a breach by both parties of CPR 15.5. The trial was vacated and directions were given which included an order that Giggs's case be struck out in the event that he failed to comply with any of the directions, and an order that Giggs have liberty to apply to enter judgment against NGN in the event that it failed to comply with the directions.
NGN served its defence on November 30 2011. On January 4 2012 NGN discovered that Giggs had failed to make a listing appointment as required, and that as a consequence the claim had been struck out. NGN notified Giggs and Giggs applied for relief from sanction.
There was a further development in February 2012. Giggs settled his claim with Thomas and on February 1 2012 the matter came before the court for approval. Justice Eady - who had issued the April 20 2011 order - declined to approve the draft settlement agreement in the terms proposed by Giggs, as it would have allowed Giggs to continue to enjoy anonymity, and ordered that Giggs's name appear in the title of the action. However, this was not brought to the attention of NGN or any other party. NGN argued that this was a breach of an earlier undertaking by Giggs to the court, recorded in the order of April 20 2011.
The judge declined to grant the relief sought on the grounds that Giggs had been party to two serious and intentional breaches - one of the rules of court, the other of the order of April 20 2011. The claim therefore remains struck out.
The judge was satisfied that there would be no material interference with either party's rights in the event that he ruled against them. Giggs could start a new action against NGN if relief were not granted. He was also satisfied that granting relief would not be a serious interference with NGN's Article 10 rights, given its position in the proceedings that it had neither the means nor the intention of publishing more information about the relationship between Giggs and Thomas.
However, non-disclosure orders affect the Article 10 rights of other parties that may wish to publish or receive information. Referring to Section 6 of the Human Rights Act and the practice guidance on interim non-disclosure orders, the judge stressed the obligation on the court and on parties actively to manage claims where such an order is in place. He was highly critical of both parties for their failure actively to manage the litigation, and particularly of the agreement to extend generally the time for service of the defence, and as a consequence extending the anonymity order. This was, he found, an "intentional" and "serious breach of the rules of court". It meant that a trial date could not be met. The application to vacate the trial date disregarded the rights of a substantial section of the public. At the time that the application was made, the parties had wanted the matter dealt with on paper (ie, in private). No explanation was given as to why the ongoing interference with Article 10 was necessary and proportionate; nor did the parties propose a timetable for the future conduct of the trial.
NGN was criticised for "secretly" agreeing to defer service of its defence at a time when it was prominent among those complaining about the injunction, as well as the injunction in respect of Fred Goodwin, the former chief executive officer of Royal Bank of Scotland.
Giggs was criticised for failing to comply with his earlier undertaking. As of February 1 2012 the judge was satisfied that the anonymity order "no longer persisted". Giggs should have informed NGN and others that the order had ceased to have effect, but he had failed to do so.
The judge took the opportunity to make "further observations on the case". In his view, the way in which the parties had conducted the case had undermined the public's confidence in the administration of justice. He noted that the failure of claimants and defendants generally, for whatever strategic or commercial reasons, to pursue claims of this nature expeditiously to trial was unacceptable. Only where a court is satisfied that it is necessary and proportionate should an extension of time for any procedural step be granted in cases involving non-disclosure orders.
The decision explains that Section 12 of the Human Rights Act and other rules on injunctions assume that there will be a trial, and that the time between the hearing of the injunction and the expected trial date is relevant to the court's consideration of the application. This was the reason that a trial timetable had been set in April 2011. The agreement of the parties to depart from that timetable was serious not only because it breached CPR 15.5, but also because it was "an abuse of the process of the court to interfere with the Article 10 rights of third parties" and had not been approved by a judge.
For similar reasons, particulars of claim should normally be served within 14 days in cases where there is a non-disclosure order. If an extension is sought for the service of a statement of case, or any other step in the action, applicants should explain why it is necessary and proportionate given the ongoing interference with the Article 10 rights of third parties.
For further information on this topic please contact Bríd Jordan at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected]).