JIH v News Group Newspapers Ltd

Consent orders preserving anonymity or confidentiality are derogations from open justice. The court must scrutinise whether each derogation is necessary and proportionate, and whether a less restrictive alternative exists.

An interim non-disclosure injunction justified for a limited period pending trial cannot ordinarily continue indefinitely where no trial is in prospect. The court must intervene of its own motion because the injunction may restrict the Art 10 rights of defendants and third parties. Parties must progress the claim under the CPR, settle it by final order, or seek an appropriate order bringing the proceedings to an end.

Several privacy and confidence claims against the defendant had been protected by interim non-disclosure injunctions and anonymity orders. Most claims had not been progressed towards trial, although some pleadings had been served in XJA and NOM. The parties later agreed settlements and submitted consent orders providing for stays, discharge or continuation of injunctions, anonymity, and restrictions on access to court documents.

The court considered whether those terms were permissible derogations from open justice and whether the existing anonymity orders should continue. It also addressed the court’s obligations where interim injunctions affecting third-party freedom of expression had been allowed to continue without a realistic prospect of trial.

1. Consent orders and open justice. The court normally gives effect to settlements, but consent orders continuing anonymity or confidentiality affect third parties and derogate from open justice. Before making such orders, the court must scrutinise the application, decide whether restraint on publication is necessary, and consider whether a less restrictive or more acceptable alternative exists. The parties must provide the material required by Practice Direction 23A, para 10.4.
2. Effect of settlement and discharge. Discharging a non-disclosure injunction does not establish that publication of the information is lawful. Discharge may reflect the end of the threat, the claimant’s decision not to proceed, or a compromise. The legality of future publication depends on the circumstances and cannot be inferred from the discharge alone.
3. Anonymity. The governing question was whether there was sufficient general public interest in publishing an account identifying a party, or normally reportable details, to justify the resulting interference with private and family life. The existing anonymity orders were continued because the public judgments had disclosed information which the claimants had sought to protect, and the settlements did not amount to admissions that the claims had failed.
4. Third-party freedom of expression. Non-disclosure orders may affect the Art 10 rights of persons who are not parties. Under Human Rights Act 1998, s 6, the court must not act incompatibly with Convention rights. It therefore cannot give the parties’ autonomy the same weight as in ordinary litigation where third-party Convention rights are not materially affected. The principle described in Attorney-General v Newspaper Publishing plc [1988] Ch 333 applies to that wider effect.
5. Indefinite interim injunctions. The lower threshold under Human Rights Act 1998, s 12(3), may justify restraint for a limited period until trial. It does not justify an equivalent interference for an unlimited period where no trial is in prospect. If the parties allow an interim injunction to continue indefinitely, the court must intervene of its own motion. Claimants should progress the proceedings under the CPR or defendants should apply to strike out claims that are not prosecuted. Future orders should make appropriate provision for the case to be brought back before the court, including by requiring an application for a case management conference.

First-instance case management and settlement decision. The judgment records earlier decisions and appeals in some of the related claims, but this judgment itself determined the consent-order, anonymity and case-management issues.