Goldsmith& Anor v BCD

Where claimants obtain an urgent injunction against persons unknown, they must comply promptly with undertakings to issue and serve the claim forms and keep the court informed of any difficulty. A breach may justify discharge or other sanctions, but the court must select the course consistent with dealing with the case justly. In exceptional circumstances, service may be dispensed with even after the time limit has expired. Interim injunctions in confidentiality and privacy cases should ordinarily include a return date and should last no longer than necessary and proportionate. Applications concerning agreed extensions, anonymity or ancillary relief may often be dealt with on paper. Anonymity remains a judicial decision, even where all parties agree, and requires balancing Article 8 privacy rights against the public interest in reporting proceedings.

The Goldsmiths and Jemima Khan obtained urgent interim injunctions in December 2008 after a person unknown hacked their personal email accounts and disclosed confidential material to a journalist. The orders included anonymity, restrictions on reporting the proceedings and undertakings to issue and serve claim forms. The hacker was later identified as BCD, but the claim forms were not served within the prescribed period and no extension was sought.

In 2011 the claimants applied to dispense with service, replace the 2008 orders with final orders by consent, and preserve BCD’s anonymity. Newspaper publishers sought variation of the anonymity and reporting restrictions. The central issues were the consequences of the breaches of undertaking, whether service should be dispensed with, whether a return date was required, and whether BCD’s identity should remain confidential.

1. Disposition. The 2008 orders were discharged and replaced by new orders, including final judgment by consent against BCD. Service of the claim forms was dispensed with under CPR Part 6.16(1).
2. The claimants had seriously breached their undertakings by failing to serve the claim forms as soon as practicable. The police investigation, BCD’s ill-health and considerations of mercy explained the delay but did not excuse it. The court should deal with such breaches consistently with justice while marking their seriousness.
3. Striking out the actions was considered but rejected. BCD’s consent to judgment, her wish to avoid further proceedings, her fragile mental health and the continuing risk of disclosure constituted exceptional circumstances. Discharging the injunctions without replacement would have been inconsistent with the overriding objective.
4. Interim orders of this kind should ordinarily contain a return date. The earlier absence of one was intended to reduce costs, but allowed undertakings and derogations from open justice to persist longer than necessary. A return date may often be dealt with on paper under CPR Part 1.4(2)(j), particularly where an extension or agreed variation is sought.
5. The substantive restraint on publication of confidential family emails did not materially interfere with responsible journalism. Anonymity and the prohibition on reporting the proceedings did engage open justice and freedom of expression, but the continued anonymity of BCD was necessary. Applying the approach in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, there was insufficient public interest in identifying BCD to justify the resulting interference with her Article 8 rights, including her health and well-being.

First instance decision. The judgment records that the 2008 interim orders were discharged and replaced by orders made on 17 March 2011.