Makin v News Group Newspapers Ltd

A breach of an undertaking to the court is contempt even where caused by inadvertence. In deciding whether to take further action, the court considers the nature of the breach, whether it was deliberate, the promptness of any remedy, resulting harm, the contemnor’s explanation and apology, and steps taken to prevent recurrence. Publication systems must ensure that the outcome of legal proceedings is respected, including undertakings given when an injunction is refused.

The claimant, executor of the estate of Ian Stewart-Brady, sought urgently to restrain publication by News Group Newspapers Ltd, publisher of The Sun, of information concerning Brady’s will and funeral arrangements. The injunction was refused on 19 May 2017. The defendant had undertaken not to identify animal charities benefiting under the will, but the published article named them.

The defendant acknowledged contempt, explained that the breach resulted from a series of editorial and legal errors, apologised, removed the information and indicated that internal procedures would be reviewed. The claimant subsequently sought permission to discontinue. The court had to decide whether further action was required for the breach and how the proceedings should be disposed of, including costs.

1. The defendant’s publication of the charity names breached an undertaking given to the court and therefore constituted contempt of court. The breach was serious and resulted from a litany of editorial and legal errors, although it was not deliberate.
2. Once a newspaper knows that intended publication is the subject of legal proceedings, it must have systems ensuring that the result of those proceedings is respected and obeyed. This applies whether the court grants an injunction or refuses one subject to an undertaking.
3. By a narrow margin, the court decided to take no further steps concerning the contempt. Relevant considerations were that the breach was inadvertent, the defendant acted immediately when notified, there was no indication of harm, the defendant provided a full explanation and apology, and remedial changes to internal systems were being considered and had reportedly been made.
4. The claimant was permitted to discontinue under Civil Procedure Rules 1998, rule 38.2, and the requirement to serve notice of discontinuance was waived.
5. Although the usual costs position would have required the claimant to pay the costs of the earlier hearing, the defendant properly declined to seek those costs because of its breach and agreed to pay the claimant’s consequential costs, including the costs of the present hearing, in the agreed sum of £8,000 plus VAT.