The PJS celebrity injunction case: what to look out for, and what to think about

19th May 2016

NOTE: This post now overtaken- the Supreme Court maintained the injunction.

Later this morning the Supreme Court will hand down its decision in the PJS v News Group Newspapers case (the Supreme Court page is here).

At one level – the most most basic one – this is all futile: everyone knows who the case is about.  That is everyone who cares about it; one suspect many people do not know just because many people do not care.

But the case is still significant and there are still things to look out for.

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First: it is important to remember that, in procedural terms, this case is about an interim injunction, and not a final injunction.  An interim injunction is there to “hold the ring” until the substantive claim can be dealt with.  The idea is that a court order will temporarily freeze things in time, almost like magic.

In this case the interim injunction is there to keep the private information private until a court can decide whether there has been a misuse of the private information; and if that private information is no longer private then the “genie” is “out of the bottle”.

But if that genie is out of that bottle then there can still be a final hearing.  There can still be an issue to be tried.  It is just that an interim injunction may serve no further useful purpose; the “discharge” (ie, lifting) of an interim injunction does not by itself mean that the case will fall away – though in practice, the claimant may just give up, as the interim injunction was the real objective.

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Second: there is the question of remedies.

The problem the Supreme Court faces is that the tort of misuse of private information is at risk of being a cause of action (ie, a legal claim) without a remedy.  In other words the tortfeasor (a lovely legal word for wrong-doer) can do what they want, and there is nothing the wronged party can do about it.

If an injunction is futile – either as an interim or final remedy – when there is a misuse of private information – then what should a court order?  It can hardly order that non-private information be somehow made private again.

The obvious alternative remedy is damages.  The point here though is that damages for misuse of private information are (relatively) low, and that there is case law which suggests that “exemplary” damages are not available for the tort of misuse of private information.

What the Supreme Court may be up to – and they have taken nearly a month to decide what is a case about an interim remedy –  is recasting the law on privacy and remedies, so that a claimant in an action for misuse of private information is not left without an effective remedy if that information can be kept private by an interim or final injunction.

If so: then what may seem a tactical victory for the press – “Hurrah, this daft injunction has been discharged” – may turn out to be a strategic mistake.

In the law of libel there are very few injunctions – the principle is “publish and be damned” – as any wrongdoing is dealt with by damages (and costs).  And there was (and is) “libel chill” as a consequence.  Injunctions are not always the problem, and if the Supreme Court make it easier for a claimant in privacy cases to claim substantive (and exemplary) damages in privacy cases when injunctions become futile, one could question whether this would be a triumph for the press.

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Third: costs and commercial reality.

Legal actions are expensive.  The costs for News Group Newspapers in this action will exceed any additional sales they will ever get out of this story.  At a time of diminishing budgets for newspapers, this is the sort of legal action which cannot be contested very often, if at all.

And when the primary grounds for discharging the injunction is that by reason of social media and foreign (ie US and Scottish) publications, the information is already effectively public, then contesting a privacy injunction is commercially nonsensical.  In a way, the news title is relying on its own lack of importance as a news source.

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I set out at the FT that such actions are to a large extent a “privacy dance” – a performance by the parties involved to demonstrate things to others.

But it is not all an exercise in superficiality: there are considerable problems in this case.

Can the courts provide a meaningful interim or final remedy to those complaining of the misuse of private information?

Can the press afford the damages and costs of contesting claims for the misuse of private information?

Everyone may know who the PJS case is about, but few if anyone know the answers to these questions.

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The Magistrate’s Court: the story of a pedant’s comeuppance

11th April 2016  

One thing every legal pedant knows is where the apostrophe is in the term Magistrates’ Court.

It may look ugly, especially on a public sign, but it should be after the “s” – that is, if there is an apostrophe at all.

Or so you would think.

One day I was walking through a town – not a big town but the biggest town around – and I saw a sign which said Magistrate’s Court.

MagistratesCourt

Aha, I gloated – for such a mistake in such a place is a treasure for any pedant.

There is a misplaced apostrophe on an official court sign, I announced smugly.

Pause.

No, came the devastating response, there is in fact only one Magistrate.

And it was true.

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Law and policy round-up: Do Ministers know best?

10th February 2016

This is today’s law and policy round-up.

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Ministers really do know best, it would seem.

A couple of days ago the Attorney-General – whose office is still narked at losing the Evans and Prince of Wales letter case [2015] UKSC 21 – gave a speech where he explained why ministers were better guardians of the public interest than judges.

And yesterday at a parliamentary committee, Justice Minister Shailesh Vara responded defiantly to powerful recent criticism by the Master of the Rolls on the shoddy MoJ research into the effect of court fees.

But meanwhile, back in the real world, the Intelligence and Security Select Committee published a scathing report on how Ministers did not have any clue why they were asking for the surveillance powers in the new Investigatory Powers Bill.

It would appear Ministers do not know best, after all.

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Law and policy round-up – legal aid crisis talks continue, court orders

4th August 2015

Legal Aid Crisis

Talks continue at the Ministry of Justice – a joint statement by the the two criminal solicitors’ groups the LCCSA and CLSA.

Comment: The boycott by solicitors of criminal legal aid work since 1 July 2015 is continuing (though it is now focused on crown court work only); the “no returns” policy of criminal legal barristers since 27 July 2015 is now also beginning to have an impact.  The crown courts are gradually coming to a halt.

It is thereby good that these talks are taking place and that there are further talks planned. The lack of confrontational public statements by the MoJ is welcome.

Gove’s absence at this second session of talks was a disappointment; but at least someone from the Criminal Bar Association managed to turn up this time.  The MoJ is plainly playing hardball over the (flawed) “dual contract” model which is intended to somehow restructure (“consolidate”) the supply of criminal legal aid services.  The MoJ is, however, being more flexible about the 1 July 2015 cut and appears to accept that there could be a case for suspending it (though not removing it completely).

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The Guardian view on cuts to the justice budget: eroding the rule of law – Guardian

Comment: Good, strong – and detailed – editorial. Well worth reading carefully.

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Why lawyers are taking on the government  – by Oliver Carter, at Left Foot Forward

Comment: Nicely done, informative piece with many helpful links.

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Court Orders

Illegal immigrants to UK face eviction without court order under new plans – Guardian

Comment: JoK is a primarily a law and policy blog, and so is not really concerned with areas of substantive law; but what is worrying about this news report is the notion that there could be a return to the pre-1957 days of evictions without court orders, as former appeals judge Sir Henry Brooke noted on Twitter.

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Law and policy round-up – legal aid crisis, court and tribunal fees, freedom of information

22nd July 2015

Legal Aid Crisis

MoJ and criminal legal aid solicitors to meet tomorrow (Thursday) – Monidipa Fouzder at Law Society Gazette

MoJ tries to keep a brave face amid signs of legal strike panic – Ian Dunt at Politics.co.uk

Comparison of what Michael Gove first said about teachers and what he is now saying about lawyers – A view from the North

The “Save Legal Aid” Crisis – is an end(game) in sight? – here at Jack of Kent

Courts and Tribunals

The House of Commons Justice Committee announce major inquiry into the effect of court and tribunal fees

Freedom of Information

Is this the end for the Freedom of Information Act? – Christopher Cook at Newsnight

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