Her Majesty's Attorney General v Times Newspaper & Ors

An appellate court should not compress a substantial and important appeal into an immediate hearing where urgency rests on a speculative prospect of future publication or disclosure. The court should assess the reliability of the evidence, whether the material is already in the public domain, whether it can practically be used, the time available, the parties’ earlier opportunities to seek relief, and the complexity and importance of the appeal. Where the evidence has obvious gaps and proper papers are unavailable, a prompt hearing at a later date may better serve justice than instant judgment.

The Times sought to broaden a proviso in an undertaking given in earlier proceedings concerning publication of confidential material. The application became urgent because a book might be published in Russia and the material might thereby enter the public domain. Mr Justice Toulson granted the variation and permission to appeal was obtained. The matter reached the Court of Appeal at 5 pm, with the court asked to hear the full appeal immediately. The central issue was whether a possible publication on the following day justified an immediate hearing despite the absence of evidence that publication had occurred and the importance and difficulty of the appeal.

The Court of Appeal unanimously refused to hear the full appeal that evening and dismissed the application. The substantive appeal was to be heard urgently the following week.

1. Evidence of urgency. Waller LJ held that the alleged urgency was speculative. The Times had not established that the book had been published in Russia on the date previously asserted, despite the opportunity to provide further evidence. A possibility of publication on the following day, whether through a Russian bookshop or the internet, was insufficient.
2. Case-management assessment. The court had to consider the length of time for which the undertaking had existed, the fact that the narrowness of the proviso had long been known, the prior opportunities to seek a variation, the evidence concerning the anticipated publication, and the difficulty and general importance of the appeal. These matters supported a properly prepared hearing rather than an improvised hearing at 5 pm.
3. Proper preparation. Robert Walker LJ agreed that the urgency evidence was tenuous and incomplete. The issues required a legible copy of the judgment below and written skeleton arguments. Considered judgment was more important than instant judgment.
4. Confidentiality and practical use. Mance LJ agreed that publication in the public domain had not been shown. It was also unclear whether the newspapers could use the material in a Sunday article even if publication occurred the next day. For present purposes the material therefore remained confidential.
5. Order. The application was dismissed. Costs were costs in the appeal. No prosecution cross-undertaking in damages was to be sought or ordered that day, and no stay on the terms sought was extended.

1. Court of Appeal (Civil Division), [2001] EWCA Civ 38: refused to hear the full appeal immediately, dismissed the application, and directed that the appeal be heard urgently the following week.
2. Queen’s Bench Division: Mr Justice Toulson granted the Times’ application to broaden the proviso and granted permission to appeal. The judgment also records applications concerning a stay pending appeal.