Giggs v News Group Newspapers Ltd & Anor

Relief from a procedural sanction depends on all the circumstances and the overriding objective. Where privacy proceedings are protected by an interim non-disclosure order, the parties must progress the claim promptly. Their private agreement to delay pleadings or trial may unlawfully prolong interference with the Article 10 rights of third parties.

Where the claimant can bring a fresh claim, refusal to reinstate a struck-out action need not materially interfere with Articles 6 or 8. A claim concerning an anonymous publication must plead the facts said to make the publisher responsible for its being understood to refer to the claimant. Interim non-disclosure orders require active case management, and extensions of time must be necessary and proportionate.

The claimant brought proceedings for breach of confidence and misuse of private information after News Group Newspapers Ltd published an anonymised article concerning an alleged relationship. Interim non-disclosure and anonymity orders were made. The claimant later settled his claim against the second defendant, who gave a continuing undertaking to the court.

The claimant failed to make a required listing appointment. His claim was automatically struck out. He applied under CPR Part 3.9 for relief from the sanction and reinstatement. The principal issues were the effect of the failure, the merits and utility of continuing the claim against the publisher, and the impact of continuing privacy restrictions on third parties' Article 10 rights.

1. Application refused. The claimant's action remained struck out. The failure arose from an oversight by his solicitors, but relief under CPR Part 3.9 required consideration of all the circumstances and the overriding objective.
2. Refusal of relief would not materially interfere with the claimant's Articles 6 or 8 rights because he could commence a fresh claim against the publisher. The existing claim, as pleaded, could not support a significant damages award. The claimant had not pleaded the matters said to make the publisher responsible for the later public understanding that the anonymous article referred to him. Any such case would require amendment or fresh proceedings.
3. The injunction claim had been overtaken by events. The claimant's identity was in the public domain, and the final undertaking given by the second defendant had superseded the earlier interim order. The publisher had stated that it had neither the means nor the intention to publish further information.
4. Privacy injunctions affect not only the parties but also third parties wishing to publish or receive information. The court must therefore take particular care with active case management. The parties' secret agreement to defer service of the defence, contrary to CPR Part 15.5, and their later conduct in seeking to vacate the trial date without an effective timetable, seriously prolonged interference with third parties' Article 10 rights.
5. The claimant's failure to make the listing appointment and his breach of the undertaking concerning notice were serious and intentional breaches in the relevant sense. They justified refusing relief. The court observed that claims involving interim non-disclosure orders should normally proceed to a prompt, reasoned determination, and that extensions of time must be necessary and proportionate.

First-instance decision. No appellate history was stated in the judgment.