Ambrosiadou v Coward

An order expressly binding third parties in a privacy claim should be made only where it is shown to be necessary and proportionate. A reasonable expectation of privacy, without evidence of a threat or real risk of publication by a third party, is insufficient. The court may leave open whether wording in a penal notice can bind third parties where that issue is unnecessary to the result.

The parties had settled litigation concerning publication of private information. The claimant sought approval of the settlement and permission for a statement in open court. She also sought an order which, through its penal notice, would affect third parties who had received copies of documents containing protected information.

The defendant and an interested third party opposed that aspect of the application. The central issues were whether an order binding third parties was necessary and proportionate, and whether the proposed penal notice was an appropriate means of achieving that result.

1. Application granted in part. Permission was given for the statement in open court, and the settlement order was made in the form sought, subject to omitting the words in the penal notice purporting to expose third parties to contempt for helping or permitting breach.
2. An order addressed to third parties had not been shown to be necessary or proportionate. There was no evidence that any third party disputed the claimant’s or her son’s reasonable expectation of privacy, or that any third party threatened, or presented a real risk of, publishing the protected information.
3. The court accepted that it had jurisdiction under Senior Courts Act 1981, section 37(1), to make an order binding on third parties. That jurisdiction did not justify making the order on the evidence.
4. The judge shared doubts about whether inserting the proposed words in the penal notice would achieve the claimant’s objective, as opposed to making an express contra mundum injunction in the body of the order. It was unnecessary to decide that issue.
5. The fact that publication would be unlawful did not establish the need for an additional penal sanction where there was no evidence of threatened or likely publication by a third party.

The judgment records the earlier Court of Appeal decision in the same litigation, [2011] EWCA Civ 409, which granted an interim injunction restraining publication by the defendant.