PJS v News Group Newspapers Ltd

The court may determine an agreed application on the papers under CPR 23.8, but retains an independent discretion to require a hearing. Consent cannot by itself justify derogations from open justice, because such orders affect the Convention rights of the public. A public judgment should explain any restrictions imposed. Anonymity and limits on access to court documents may be justified where necessary to protect privacy and the effectiveness of an injunction or undertaking. The court must balance privacy and freedom of expression rights in the circumstances of the particular case.

The claim concerned breach of confidence and misuse of private information arising from alleged extramarital sexual encounters. Earlier interim injunction proceedings had reached the Supreme Court, which allowed the claimant’s appeal by a majority of 4:1. The parties subsequently agreed terms of settlement, including payment, undertakings restricting publication and disclosure, restrictions on access to confidential court documents, and anonymity provisions. They asked the court to approve the agreed order on the papers. The central issues were whether the application could properly be dealt with without a hearing and whether the proposed derogations from open justice and freedom of expression were justified.

1. The application was properly dealt with on the papers. CPR 23.8(a) and (b) gave the court power to do so, but the parties’ agreement did not bind the court. The court accepted that there was nothing in dispute and that disposal without a hearing was just and efficient.
2. Open justice remained the governing principle. A consent order could not itself justify derogations from that principle, since such orders affected the Article 10 rights of the public. The reasoning identified in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, concerning the court’s independent approach to interim non-disclosure orders, applied equally to final orders.
3. A short public judgment was appropriate to explain the derogations, record the agreed conclusion of proceedings, and inform third parties who had received or been notified of the injunction.
4. The court accepted the defendant’s undertakings and approved the agreed payment provision. The Tomlin order stayed further proceedings except for carrying its terms into effect, with liberty to apply.
5. Restrictions preventing non-parties from obtaining the confidential schedules, statements of case and confidential exhibits without further order were necessary to protect the claimant’s private-life rights. Anonymity for the claimant and partner remained appropriate because identifying them would defeat the purpose of the injunction and undertakings. Anonymity for AB, CD and EF was justified to protect the claimant’s identity. The court also considered that their Article 8 rights would prevail over freedom of expression, independently justifying the order under section 6 of the Human Rights Act 1998.

The judgment recorded that the Supreme Court had allowed an appeal against the Court of Appeal’s decision to discharge an interim injunction. The parties then settled the claim and the present court approved the agreed final order.

• Supreme Court: appeal allowed by a majority of 4:1 on 19 May 2016, [2016] UKSC 26.
• Court of Appeal: interim injunction proceedings included decisions on 22 January 2016 and 18 April 2016, [2016] EWCA Civ 100 and [2016] EWCA Civ 393.
• High Court (Queen’s Bench Division): agreed final order made on 4 November 2016.