Anonymity order lifted in marital privacy case
A High Court judge has lifted an anonymity order protecting the identity of a formerly married couple involved in a privacy dispute.
In Stephanie Hirschfeld v James McGrath [2011] EWHC 249 (QB), Ms Hirschfeld, the ex-wife of Mr McGrath, had obtained an interim injunction on 4 February 2011 to restrain the publication of certain confidential information after she discovered that Mr McGrath intended to publish an autobiographical book with his new wife. When granting the interim injunction, Teare J also made an anonymity order.
The case then came before Tugendhat J on 15 February 2011 to determine what information should be made public concerning the proceedings and, in particular, whether the anonymity order should be continued.
Tugendhat J noted that Teare J had been entitled to apply a lower test (as per Cream Holdings Ltd v Banerjee [2005] 1 AC 253) on the interim application before him to enable the court, at the return date, to consider all the possible options. Any subsequent decision to lift the anonymity order would not therefore reflect upon the correctness of Teare J’s order.
The confidential information publication of which Ms Hirschfeld wished to prevent concerned the intimate relationship of the parties and their family, and information about Ms Hirschfeld’s health. In relation to these matters Mr McGrath offered undertakings to the court, which were welcomed by the judge as according with the principles relating to marital confidences established since Argyll v Argyll [1967] 1 Ch 302. Ms Hirschfeld accepted, however, that she could not prevent Mr McGrath from disclosing the fact that while they were married, the parties suffered a bereavement.
In considering the position regarding anonymity of the parties, the judge repeated the principles set out by Lord Neuberger MR in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 to emphasise the general rule that the names of the parties to an action are included in orders and judgments of the court and that a court should only derogate from that general principle of open justice after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
The judge held that Mr McGrath’s intention to publish his book meant that there was a risk of jigsaw identification of the parties, which in turn meant that the purpose of any anonymity order could be defeated. He was also concerned that any order would lack the degree of clarity and precision that is required. Finally, as Ms Hirschfeld had not asked for an order restraining the publication of Mr McGrath’s book, the judge was also mindful that he must not unnecessarily interfere with Mr McGrath’s rights. In light of the principles set out in JIH and on the specific facts of the case, Tugendhat J decided that it would not be right to continue the order for anonymity. He also made the now customary order that the only information about the case that may be reported is the information contained in the judgment and order.
See further sections 3.9.1 and 10.3 of The Privacy Law Handbook.