Spelman v Express Newspapers

Where an interim non-disclosure injunction affects the Article 10 rights of third parties, the court must actively manage the proceedings. It cannot give the parties’ autonomy the same weight as in ordinary litigation. The claimant must serve a prompt statement of case and progress the claim to trial, or settlement, without unnecessary delay. This ensures that any interference with third-party freedom of expression is no more than necessary and proportionate. Costs concerns do not ordinarily justify delaying service or trial where delay would prolong the restriction.

The claimant, acting through litigation friends, sought continuation of an interim non-disclosure injunction against a media defendant. The court dismissed that application and gave directions requiring prompt service of the Particulars of Claim, defence, disclosure and witness statements, with the matter to be listed for a three-day trial.

The parties had obtained by consent an extension of time for service of the Particulars of Claim. The court reconsidered that extension in light of recent authority and the effect of the injunction on third-party Article 10 rights. The central issue was whether procedural progress should be delayed to avoid costs.

1. The application was dismissed. The court had handed down reasons dismissing the claimant’s application for continuation of the non-disclosure injunction and directed the parties to proceed promptly towards trial.
2. An interim non-disclosure order affects the freedom of expression of the defendant and of third parties who may wish to publish or receive information. Under HRA s.6, the court must not act incompatibly with Convention rights. Accordingly, the court must give less weight to the parties’ autonomy than it would in litigation without comparable effects on third-party Convention rights.
3. The claimant must serve Particulars of Claim promptly after seeking interim injunctive relief. That requirement was supported by Caterpillar Logistics Services (UK) Ltd v de Crean, [2012] EWCA Civ 156, and [2011] EWHC 3154 (QB), and was not a new requirement, as shown by Hytrac Conveyors Ltd v Conveyors International Ltd, [1983] 1 WLR 44, and RHM Foods Ltd v Bovril Ltd, [1982] 1 WLR 661.
4. The Practice Guidance on Interim Non-Disclosure Orders required particular care with active case management. Where proceedings are unlikely to reach trial promptly, the court should consider dismissing the substantive action, summary judgment or judgment by consent.
5. Although the court was sympathetic to proposals to save costs, avoiding costs did not justify delaying the proceedings. Trial or settlement had to occur promptly so that interference with third-party Article 10 rights remained necessary and proportionate.