DMK v News Group Newspapers Ltd

Before trial, an interim non-disclosure order should be made only where the claimant is more likely than not to establish at trial that publication must be restrained. The court must assess the probable outcome, giving particular weight to freedom of expression, public interest, existing or impending public availability, and any relevant privacy code.

Privacy, expression, fair-trial rights and open justice must be balanced. Anonymity may protect privacy while preserving the safeguards of a public hearing. Information known to a media organisation does not thereby enter the public domain. The High Court’s divisions are administratively distinct but possess, subject to statutory exceptions, equal jurisdiction.

DMK intended to bring a privacy claim against News Group Newspapers Ltd, publisher of The Sun. News Group proposed publishing information from a separate Chancery action in which DMK was sued by her former partner over substantial financial transfers. The information included allegations of domestic abuse and would identify DMK as the defendant.

DMK sought interim protection pending applications for anonymity and restrictions on inspection of the Chancery court file. The court considered whether publication should be restrained and whether a Queen’s Bench judge had power to restrict third-party inspection of documents in an action proceeding in the Chancery Division.

1. Interim injunction. The court granted an interim non-disclosure injunction restraining News Group from publishing information identifying DMK as the defendant in the Chancery action, pending the return date or further order.
2. Under Human Rights Act 1998, s 12, the court had to assess what would probably happen at trial. “Likely” meant more likely than not. The evidence satisfied the court that DMK’s privacy rights would probably prevail over the Article 10 rights engaged and the demands of open justice. The information concerned private and family life, had little significant public interest, was not substantially public, and publication was likely to cause substantial harm.
3. The court applied the balancing approach identified in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, including consideration of Articles 8, 10 and 6 and open justice. Anonymity did not necessarily require a private hearing and could preserve open justice without unnecessary identification. The court did not need to decide whether the domestic-abuse allegations were true.
4. The fact that News Group, or possibly others who had inspected the court file, knew the information did not place it in the public domain or remove its private character.
5. Inspection order. The court restricted third-party inspection of the Chancery file, permitting inspection without permission only of redacted statements of case. The order was designed to prevent the injunction being undermined by inspection followed by publication.
6. Although the judge was assigned to the Queen’s Bench Division, s 4(3) of the Senior Courts Act 1981 gave all High Court judges equal power, authority and jurisdiction, subject to express statutory exceptions. The order was therefore within the court’s power and was just and convenient. Service on the Chancery claimant was dispensed with because of the need for prompt action, his stance, and his subsequent right to apply to vary or discharge the order.