6 June 2011 | By Katy Dowell
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At the heart of the battle between the right to privacy and freedom of expression sits Hugh Tomlinson QC. The Lawyer talks to Mr Anonymity about his feelings on the matter
The storm is at its calmest at the centre, which is something Hugh Tomlinson QC can attest to. The Matrix Chambers silk sits at the heart of the row concerning injunctions - a space he is more than happy to occupy.
“I enjoy causing a bit of mischief,” he says with a smile, a twinkle shining brightly in his eye.
On the day The Lawyer meets him Tomlinson is on high alert. He is due in court the following day to defend against yet another attempt by News Group Newspapers, owner of The Sun, to have an injunction lifted.
This time the tabloid is desperate to name the woman with whom Fred Goodwin, the former head of RBS, is alleged to have had an affair. Goodwin is Tomlinson’s client.
We sit together in an empty room, unaccompanied by the usual PR attack dogs. This allows Tomlinson to spout freely about the battle between Article 8 of the Human Rights Act (HRA), the right to respect for private and family life, and Article 10, the right of freedom of expression, while also fiddling with his iPhone and muttering something about “crises” under his breath.
The next day it transpires that a Twitter user had revealed the identities of individuals involved in family law cases who have been granted anonymised orders by the court regardless of whether they were children or celebrities. This would have happened during our chat.
Yet Tomlinson appears calm; he never lets the pressures show.
Indeed, Tomlinson is at ease with his work and perhaps, one might suggest, a little perplexed about how someone who has a PhD in philosophy ended up fighting for the privacy rights of the rich and famous.
“I’ve had a busy couple of months, one can’t complain,” he says, again sporting that mischievous smile. “It’s not boring and predictable - there are always new points to be raised.
“[But] I’m not sure I’ll be doing media law in five years’ time; different areas of my practice rise and fall all the time.”
Back in the eye of the storm there are serious matters to be discussed. Galvanised by the support of Tweeters and parliamentarians, the press pack has launched a furious fight against what it sees as a privacy law being brought in through the back door.
The charge is that the judiciary, led by the former head of the jury and non-jury lists Mr Justice Eady, and his successor Mr Justice Tugendhat, have given successive judgments limiting the reporting rights of the press.
Practitioners comment that there are stark differences between the two judges, with Eady J more likely to grant an anonymity order than Tugendhat J. Both would reject this and argue that they work within the law on a case-by-case basis.
Anonymised orders have been branded ’super-injunctions’, or more recently ’hyper-injunctions’ and are considered the legal accessory of the rich and famous. The reality is that anonymised orders can be granted in a range of cases and are more commonly applied for in family matters.
As Master of the Rolls (MR) Lord Neuberger highlighted in his recent ’Super-Injunctions, Anonymised Injunctions and Open Justice’ report, only two known super-injunctions have been granted since the John Terry case in January 2010.
The first, Ntuli v Donald (2010), was also a Tomlinson case, with the barrister instructed by Mishcon de Reya partner Charlotte Harris (then at JMW) to represent the claimant Adakini Ntuli. That order was lifted on appeal. In the second, DFT v TFD (2010), Tomlinson represented DFT. The order was granted for seven days for anti-tipping off reasons.
Letters of the law
Tomlinson’s list of clients is wide-ranging. It includes the Manchester United FC footballer known by the courts as CTB and everybody else by his real name (strictly speaking the anonymised order is still in force); Goodwin and the as-yet unnamed woman with whom he allegedly had an affair in the run-up to the rescue of RBS; and a plethora of people known only by acronyms (AJH, DFT, HXV, KGM, MJN and POI).
When the England football team’s former captain John Terry - another Tomlinson client - dared to lay claim to private life to protect his commercial interests, the court revealed his identity to the press.
It was a pivotal matter, says Tomlinson, and one that has had a ripple effect.
“After the John Terry case the press spotted the potential, as they saw it, in providing more protections for freedom of expression,” he says. “They latched onto the principal of open justice to defend their position. The courts did something that, looking back now, may have been a mistake.”
Mistake or not, the decision to name Terry because his legal team had failed to protect his privacy at the Court of Appeal (CoA) provoked
a jubilant response from freedom of speech campaigners.
“There’s a growing campaign to restrict the limits of privacy,” says Tomlinson, who is clearly in favour of protecting the rights enshrined within Article 8.
He rejects the suggestion that the injunction furore has been timed to distract from other legal problems facing the print media.
“I don’t subscribe to the conspiracy theories that this has been drummed up by the press to distract from the phone-hacking affair,” Tomlinson states flatly while shaking his head and rolling his eyes. “What’s happened recently is that a set of coincidental factors have come together.”
Political press pressure
Last month the prime minister David Cameron waded into the injunction row when he stated that the law had become “unfair” on the press.
“The danger is that judgments are effectively writing a new law, which is what Parliament’s meant to do,” said the PM.
His comments mark the highlight of a long-fought campaign by the press to defend its right to freedom of expression. It was in 2004 that Associated Newspapers head of legal Harvey Kass attempted to mobilise the UK media back into unified lobbying efforts over a European Court of Human Rights decision concerning Germany’s Princess Caroline of Hanover. The court held that to take pictures of the princess while she was shopping was a breach of her right to privacy.
It has since become more common for the major newspaper groups to coordinate their lobbying efforts. When it comes to the courts, however, they are also motivated by the ability to share costs.
“There’s no doubt that the print media’s realised the value of political campaigning,” says Tomlinson. “It’s much cheaper and more effective than fighting in the court.”
He says he understands the pressures on politicians to listen to the media’s complaints.
“Newspapers have a lot of political power, so it’s not surprising politicians pay a lot of attention to them,” he says, adding scathingly that “sensible people believe there ought to be a balance [between the right to privacy and the right to freedom of expression].”
Tomlinson is clearly unimpressed by Liberal Democrat John Hemming MP, the man who revealed CTB’s identity (the Man Utd footballer)
to the House of Commons under the protections guaranteed by parliamentary privilege, sparking a tabloid frenzy.
“Parliamentarians shouldn’t be discussing individual cases,” he says with conviction. “It’s perfectly proper to talk about the principles involved, but they shouldn’t talk about individual cases.”
Hemming referred to CTB specifically when raising the issue of injunctions and social media websites. “Mr Speaker, with about 75,000 people having named [CTB], it’s obviously impracticable to imprison them all.”
The advent of social media has caused a stir in the courts. Unable to print identity details in the press, campaigners have instead turned to Twitter, where they can post anonymously. There have been two major injunction leaks in recent weeks, neither of which can be determined as true.
Tomlinson, like the Lord Chief Justice Lord Judge, believes everyone should operate within the law regardless of the outlet, albeit he recognises that “the use of social media produces very different issues for enforceability”.
“If the judges get it wrong,” he continues, “the Court of Appeal’s there to put it right. If Twitter starts to become the Court of Appeal it
would cause severe damage to the administration of justice.”
Under bar rules Tomlinson cannot comment on live cases. He will not talk about Schillings’ recent attempt to force Twitter to reveal details of the poster behind one of the injunction leaks on behalf of CTB. That case appears to be ongoing despite acute media pressure on the firm to back off.
News of that lawsuit broke late on a Friday night (20 May), whipping up another media frenzy over the powers of lawyers, despite Neuberger’s attempts to calm the waters that morning with his report.
By the end of the following week the courts had issued seven judgments on anonymity orders, all of which Tomlinson had appeared in.
The first two related to CTB and both refused to lift the order.
The third and fourth concerned Goodwin: the first of these lifted the order relating to him, but not the woman involved, while the second was a refusal to refer Associated Newspapers (owner of the Daily Mail) to Attorney General Dominic Grieve for being in contempt of court.
The fifth judgment lifted an order granted to Gordon Ramsay’s father-in-law KGM (Chris Hutcheson), who was revealed to have kept secret a second family.
The remaining two were concerned with MJN and TSE & Anr. Both came down in favour of anonymity in relation to failed attempts by News Group Newspapers to have the orders varied.
The price of freedom
Regardless of whether an injunction is lifted or not, the orders to date have become the foundations of several stories regarding infringement of freedom of expression.
Campaigners argue that court-ordered anonymity is fast becoming the commodity of the rich. Newspapers, with their dwindling revenues, are landed with huge legal bills when fighting these cases in the courts. For the press high legal bills represent a chilling effect on the freedom of speech. This is a point that Tomlinson sympathises with.
In libel cases, he says, “costs have increased massively and payouts have gone down. That was swept away by the Elton John case [when the Daily Mail agreed to pay £100,000 in libel damages to the singer]. After that the newspapers started to get out early, but you can’t launch a decent libel case without costs reaching at least £100,000.
“There are very few cases that are seriously fought where the costs aren’t approaching the figure which is in dispute.”
The same can be said for anonymity orders. In the days before the John Terry case, he says, individuals were more relaxed about their approach to court. Things have since tightened up considerably. Tomlinson says claimants are now becoming more cautious.
This means there can be matters where several witness statements are needed not just from the individual in question, but from other family members who may be affected.
Consequently, pre-John Terry he would have had limited access to the end client (with the solicitor who instructed Tomlinson being instructed by the client’s management), whereas today the relationship has opened up. More work needs to be done to convince the court to grant orders.
All this adds to the legal costs of the application, with a bog-standard application costing £10,000, rising to £20,000 depending on the complexity of the matter for each court visit.
The situation has become so acute that the judiciary was stirred to take action.
The Ministry of Justice has given its backing to Lord Justice Jackson’s proposals to overhaul the conditional fee market, capping success fees in libel cases at 10 per cent.
Separately, Neuberger believes that in order to be more transparent newspaper editors should be informed of anonymity applications before they are heard in court.
Tomlinson believes neither measure will dent the eye-watering legal costs amassed in media cases.
“The Jackson reforms will only scratch the surface” he insists, arguing that a more radical approach is needed and that conditional fee arrangements (CFAs) should be made available to defendants rather than claimants.
On Neuberger’s proposals, Tomlinson suggests that “it will just add to costs. In the past year costs have doubled and the MR will add another 50 per cent on top of that”.
“It takes between 10 and 15 hours to get the order off the ground,” he explains, “and if you have to write to editors to let them know about the application it adds half the time again.”
Presenting the past
Tomlinson, who joined the bar at the relatively advanced age of 28, has been practising for 28 years and has seen debate over privacy inflame before.
“There’s been a slow evolution on the law on privacy,” he reflects. “The debate now is very similar to what was said about Naomi Campbell in 2003 and, before that, in the 1960s there was Argyll v Argyll , which was about the sex secrets of a Duchess.”
In the Argyll divorce scandal the Duke of Argyll accused his wife of infidelity, producing photographs of his wife in compromising positions with other men.
The HRA brings a new edge to the debate, but that was always intended when the legislation was devised.
Meanwhile, the press is under an obligation to present to the court a public interest argument when fighting these cases - something it has not done in CTB or Goodwin.
“One of the remarkable features of this is the PCC [Press Complaints Commission] Code, which the press is signed up to,” says Tomlinson.
Tugendhat J highlighted the code’s obligations on privacy in TSE & Anor v News Group Newspapers (2011), stating that “everyone’s entitled to respect for his or her private and family life” and that there is a public interest in “i) detecting or exposing crime or serious impropriety; ii) protecting public health and safety; and iii) preventing the public from being misled by an action orstatement of an individual or organisation”.
“That’s more or less the law as applied by the courts,” Tomlinson states. “They follow the law, the newspapers attack. They’re consistently attacking the court on orders they haven’t opposed.”
Again the judiciary has highlighted such a concern. In the matter of Goodwin v News Group Newspapers (2011), for instance, Mrs Justice Sharpe originally granted the order on 9 March refusing permission to appeal.
When he varied the order on 11 May, Tugendhat J revealed that no public interest argument had been submitted by the newspaper and that it had not tried to appeal the matter in the CoA.
Instead The Sun splashed a story in the tabloid about being gagged by the judiciary.
“It’s evident from the judgments that judges are concerned about misreporting,” Tomlinson comments. “The media have justifiable complaints and the judges have taken great steps to try to justify what they have to do.
“The reality is that the last super-injunction was given in the summer of 2010 and that involved a substantial blackmail matter.”
It might also be worth reminding Fleet Street that Tomlinson, while currently portrayed as the fat cat lawyer getting rich off gagging orders, was the barrister who persuaded the information commissioner to release details of MPs’ expenses under the Freedom of Information Act - a story that revived newspapers’ circulations for a short while in 2009.
The cab rank rule under which the bar operates means that Tomlinson has to take any case for which he is available. He is most sought after in privacy circles at the moment, but his practice extends into other public law areas.
Modestly, the ebullient Tomlinson realises his current stint in the limelight will not last long.
“Under the taxi cab rule I’m available for hire,” he says. “Any barrister will go through a period of being busy, and I’ve been very busy in the past couple of months.”
Tomlinson refuses to be engulfed by the storm raging around him, working the law rather than letting politicians and editors play him. He loves the mischief, that much is clear, but the muckraking is better left to someone else.