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Giggs' claim for privacy damages is struck out

08 March 2012. Published by Keith Mathieson, Partner

Ryan Giggs has lost his claim for damages against News Group Newspapers ("NGN").

In a judgment published last week Mr Justice Tugendhat refused to reinstate the footballer's claim for damages against NGN on the grounds that Giggs had been party to two serious breaches, one of the rules of court, the other of an Order of Mr Justice Eady of 20 April 2011.

The proceedings famously concerned an article published on 14 April 2011 by The Sun under the headline "Footie Star's Affair with Big Bro Imogen".  On the day after publication of the article, which did not name him, Giggs applied and obtained an order against NGN, publisher of The Sun, and Imogen Thomas.  As is now very well known, the Order anonymised Giggs, who was referred to as CTB, and prohibited the publication of further details of his purported relationship with Thomas.  Giggs then issued proceedings against Thomas and NGN for a permanent injunction and damages for breach of confidence and misuse of private information.

There followed tangled legal proceedings between Giggs, NGN and Thomas. As readers of this blog will know, it was not long before everyone knew CTB's identity.  Questions were raised in parliament about super-injunctions and anonymity orders; Giggs was controversially named by John Hemming MP in the House of Commons as the footballer in question (ending weeks of online speculation); an allegation of blackmail by Thomas was made and withdrawn; and repeated efforts by NGN to lift the anonymity order failed.

The claim against NGN came back before the courts for the final time on 21 February 2012 (Giggs' claim against Thomas for an injunction, damages and aggravated damages settled by agreement).

The circumstances are unusual as Mr Justice Tugendhat was concerned not with the trial of the claim but with an application for relief from sanction under CPR Part 3.9, Giggs' claim having been automatically struck out in November 2011 for failure to comply with a Court Direction. The evidence in support of the application explained that his lawyers had mistakenly failed to make an appointment with the Clerk of the Lists to fix a trial date. It was submitted that Giggs always wanted to continue the proceedings and should not be penalised for the delay by his solicitor.

The procedural background in brief is this. The original trial date was vacated on 2 November, following an application by Mr Giggs on 1 November. At the time of the application no defence had been served by NGN. This was further to an agreement between the parties agreeing a general stay of service of the Defence. The agreement was reached in May 2011 but neither party had notified the court.

The general stay and the failure to notify the Court of the stay were found by Mr Justice Tugendhat to be a breach by both parties of CPR Part 15.5. The trial was vacated and directions were given which included an order that Giggs' case be struck out in the event he failed to comply with any of the directions and an order that Giggs have liberty to apply to enter judgment against NGN in the event it failed to comply with the directions.  

NGN served its defence on 30 November. On 4 January NGN discovered that Giggs had failed to make a listing appointment as required and that as a consequence the claim had been struck out. NGN notified Giggs and Giggs applied for relief from sanction.  

There was a further development in February. Giggs settled his claim with Thomas and on 1 February the matter came before the court for approval. Mr Justice Eady declined to approve the draft settlement agreement in the terms proposed by Giggs as it provided that Giggs would continue to enjoy anonymity.  Mr Justice Eady ordered that Giggs' name appear in the title of the action. This was not however brought to the attention of NGN, or any other party.  NGN argued that this was a breach of an earlier undertaking by Giggs to the Court recorded in the order of Mr Justice Eady on 20 April 2011.  

Mr Justice Tugendhat declined to grant the relief sought on the grounds that Giggs had been party to two serious and intentional breaches, one of the rules of court, the other of the order of 20 April 2011.  The claim therefore remains struck out.

Mr Justice Tugendhat was satisfied that there would be no material interference with either party's rights in the event he ruled against them. Giggs could start a new action against NGN if relief was not granted. He was also satisfied that granting relief would not be a serious interference with NGN's Article 10 rights given its position in the proceedings that it did not have the means or the intention of publishing more information about the Giggs/Thomas relationship.  

But non-disclosure orders affect the Article 10 rights of others who may wish to publish or receive information.  Referring to section 6 of the Human Rights Act and the practice guidance on Interim Non-Disclosure Orders (reviewed here), Mr Justice Tugendhat stressed the obligation on the Court and on parties to actively manage claims where there is such an order in place.

Mr Justice Tugendhat was very critical of both parties for failing to actively manage the litigation and in particular the agreement to extend generally the time for service of the Defence and as a consequence extending the anonymity order.  This was in his words an "intentional" and a "serious breach of the rules of court".  It meant that a trial date could not be met. The application to vacate the trial date disregarded the rights of a substantial section of the public.  At the time the application was made the parties had wanted the matter dealt with on paper (in private) and no explanation was given as to why the ongoing interference with Article 10 was necessary and proportionate and no timetable was proposed by the parties for the future conduct of the trial.  

NGN was criticised for "secretly" agreeing to defer service of its defence at a time when it was prominent amongst those complaining about the injunction, as well as the Goodwin injunction.

Giggs was criticised for failing to comply with his earlier undertaking. As of 1 February Mr Justice Tugendhat was satisfied that the anonymity order "no longer persisted".  Giggs should have informed NGN and others that the order ceased to have effect but he failed to do so. 

Mr Justice Tugendhat took the opportunity to make "further observations on the case".  In his view the way that the case was conducted by the parties undermined the public's confidence in the administration of justice.  The failure of claimants and defendants generally, for whatever strategic or commercial reasons, to pursue claims of this nature expeditiously to trial is not acceptable.  Only where a court is satisfied that it is necessary and proportionate should an extension of time for any procedural step be granted in cases involving non-disclosure orders.

He explains in his decision that section 12 of the HRA and other rules on injunctions assume that there will be a trial and the time between the hearing of the injunction and the expected trial date is relevant to the court's consideration of the application. It was for that reason a trial timetable was laid down by Mr Justice Eady in April 2011. The agreement of the parties to depart from that timetable was serious not only because it breached CPR Part 15.5. It was "an abuse of the process of the court to interfere with the Article 10 rights of third parties" and it had not been approved by any judge. 

For similar reasons Particulars of Claim should normally be served within 14 days in cases where there is a non-disclosure order. If an extension is sought for the service of a statement of case, or any other step in the action, applicants should explain why it is necessary and proportionate given the ongoing interference with the Article 10 rights of third parties.

(Originally blogged by Bríd Jordan)