Mionis v Democratic Press SA & Ors

When asked to grant an injunction enforcing a contractual restriction on publication, the court must apply section 12 of the Human Rights Act 1998, even where the restriction was freely accepted in a settlement agreement. A contractual waiver of freedom of expression does not remove the court’s statutory duty to consider proportionality.

However, a freely negotiated settlement of litigation, made with expert legal advice, carries substantial weight. Save on ordinary contractual or equitable grounds, a strong case is required before the court will treat its enforcement as a disproportionate interference with article 10 rights. An injunction must also be sufficiently certain, but a prohibition on direct or indirect reference may be enforceable where its meaning is objectively clear.

The appellant had brought English libel proceedings concerning articles published by the respondents’ Greek-language newspaper. The parties settled those proceedings by a confidential agreement scheduled to a Tomlin order. The agreement required the respondents not to publish material referring to the appellant or specified members of his immediate family, subject to limited exceptions.

After the respondents published two further articles, the appellant sought to enforce the agreement. Sir David Eady refused relief, holding that the prohibition was too uncertain to enforce. The respondents no longer supported that reasoning or disputed that the articles made indirect references prohibited by the agreement. The appeal concerned whether enforcing the contractual restriction by injunction would nevertheless be disproportionate or contrary to public policy in light of freedom of expression.

1. Appeal allowed. The court granted an injunction in the contractual terms sought and remitted the appellant’s application for an inquiry as to damages to the High Court.

2. Section 12 of the Human Rights Act 1998 applied because the court was considering permanent injunctive relief that would affect the respondents’ article 10 freedom of expression. That obligation applies in litigation between private parties and cannot be excluded merely because the proposed restraint arises from their contract. The court therefore had to assess proportionality, including the public interest in the receipt and publication of journalistic material.

3. The voluntary settlement remained an important and weighty feature of that assessment. The parties had compromised litigation after substantial negotiation and expert legal advice, using a Tomlin order. They were entitled to make terms extending beyond the remedies available in the original libel claim. There was no allegation of fraud, mistake, undue influence, misrepresentation, inequality of bargaining power, or other basis to impugn genuine consent.

4. The court distinguished cases concerning confidence obligations and an earlier agreement restraining newspaper comment. On these facts, enforcing the bargain was not disproportionate. It promoted the important public interests in finality of settlement and the efficient administration of justice. The respondents had exchanged their freedom to make the prohibited publications for the appellant’s abandonment of his claim and could not reopen the public-interest merits that they had chosen to settle.

5. The restriction was sufficiently certain for enforcement. The agreed word “refer to” included indirect as well as direct reference. Indirect reference is a familiar concept in libel law, and remote or tangential links would not realistically found contempt proceedings. The first-instance judge had therefore overstated any difficulty in enforcing the clause.

• Court of Appeal (Civil Division): Allowed the appeal, granted the contractual injunction, and remitted the damages inquiry: [2017] EWCA Civ 1194.
• High Court, Queen’s Bench Division: Sir David Eady refused to lift the Tomlin-order stay, declined an injunction, and refused an inquiry as to damages. The Court of Appeal reversed that decision.