Gold & Anor v Cox & Anor

A defendant’s consent does not automatically justify a final non-disclosure injunction. The court must independently consider the effect of the order on freedom of expression, including the interests of non-parties. In proceedings for civil contempt arising from breach of an injunction, the claimant bears the legal burden of proving disobedience to the criminal standard. A public-domain proviso may place an evidential burden on the alleged contemnor once the claimant has established a prima facie case, but the injunction should not reverse the legal burden of proof. Non-disclosure injunctions may require a degree of deliberate vagueness to prevent circumvention, while retaining a fair allocation of the burden of proof.

The claim concerned confidential and private information about Jacqueline Gold and her family. One defendant had formerly worked as a nanny to Ms Gold’s daughter, and the other had been employed by Ann Summers Ltd. A manuscript containing information about Ms Gold’s private and family life had been prepared for possible publication.

The court had previously granted an interim non-disclosure injunction in [2012] EWHC 272 (QB) and adjourned the matter to allow the defendants to provide evidence. Both defendants subsequently consented to final non-disclosure orders. The issues were whether a final order should nevertheless be examined independently and whether the proposed public-domain proviso lawfully allocated the burden of proof.

1. Final order. Judgment was entered for the claimants and final non-disclosure orders were made. The defendants’ consent did not relieve the court of its obligation to scrutinise the order, because a non-disclosure injunction may affect the freedom of expression of non-parties.

2. The information in the manuscript was obviously private and confidential. The defendants’ asserted sources and the claimant’s tweets did not provide an arguable justification for disclosure. The tweets referred to Ms Cox but disclosed no private or confidential information about either her or Ms Gold.

3. The proposed wording stating that the defendant would bear the burden of establishing that information was in the public domain purported to reverse the normal legal burden of proof. In civil contempt proceedings for disobedience to an injunction, the person alleging disobedience bears the burden of proof, and the applicable standard is the criminal standard: Re Bramblevale [1970] Ch 128 and Spectravest Inc v Aperknit [1988] FSR 161 at 174.

4. A public-domain proviso is necessarily somewhat vague. In non-disclosure, defamation and intellectual property claims, such wording may be necessary to provide an effective remedy and prevent circumvention. The claimant must first prove that the information allegedly disclosed was not in the public domain. That establishes a prima facie case of disobedience. The evidential burden may then shift to the alleged contemnor, as it may in criminal proceedings, but the injunction must not embody a reverse legal burden.

The court’s earlier interim decision is identified as [2012] EWHC 272 (QB). The present judgment followed an adjournment for the defendants to provide evidence and determined whether final orders should be made.