Birmingham Mail v ED

A publication does not breach a protective order where the order permits reporting of a public criminal hearing and contains no specific restriction on identifying defendants. The order must be construed as made, rather than by reference to a later clarification. Where a contempt finding is set aside, a costs order founded on that finding also falls. An appellate court may decline to decide a challenge to protective wording where the point was not argued below, the appellant assisted in formulating the amendment, the issue has no practical consequences, and the proposed ruling would be academic in a one-sided appeal.

Hogg J made an order on 10 February 2011 restricting publication of names and addresses where publication was likely to identify a child connected with serious criminal proceedings. The order also permitted publication of information relating to public court hearings where the court itself had imposed no restriction.

After the Birmingham Mail published an article identifying ED and JL and referring to their street, Hogg J found a breach, though not an intentional one, and varied the order on 24 February to require names and addresses to be omitted. She also ordered the newspaper to pay costs. The newspaper appealed, arguing that the publication did not breach the original order and seeking to challenge the legality of the amended restriction.

1. Appeal allowed. The Court of Appeal unanimously set aside the finding of contempt and the associated costs order.
2. The original order contained a general permission to publish information relating to any part of a hearing in a public criminal court. It imposed no specific restriction on identifying the defendants. The publication identifying ED and JL therefore did not breach the order of 10 February 2011.
3. The later addition requiring names and addresses to be omitted reflected the judge’s intended protection, but it could not retrospectively make the earlier publication a breach of the original wording. Since the contempt finding fell, the costs order, whose rationale was that the newspaper had been in breach, also had to be set aside.
4. The court declined to determine the legality of the additional words. The point had not been argued before Hogg J; indeed, the newspaper’s counsel had assisted in formulating the amendment. Lady Justice Black also considered that the issue had no practical consequences because the criminal trial was past, and that it would be inappropriate to give an essentially academic ruling when public funding meant that only one party was represented.
5. The court noted that the judge’s alternative justification for the costs order, namely saving public funds, was of doubtful validity.

1. Court of Appeal (Civil Division) — Appeal allowed. The finding of contempt and the costs order were set aside.
2. Principal Registry of the Family Division — Hogg J made the protective order on 10 February 2011, found a breach after publication, varied the order on 24 February 2011, and ordered the newspaper to pay costs.