The Court 10 stars shaping the law on privacy

Court 10 at the Royal Courts of Justice has had more visitors than usual in the past month as the press fights back against what it perceives as encroaching ­privacy laws.


Gideon Benaim
Gideon Benaim

Court 10 is where the defamation judges sit and where a handful of lawyers are tussling over whether the right to privacy should triumph over freedom of expression. These are the lawyers who have helped define how judges interpret the Human Rights Act.

In the past week the High Court has issued several judgments outlining reasons for granting anonymised orders. The timing is critical.

On Friday 20 May the Master of the Rolls Lord Neuberger announced the outcome of a year-long review into the supposed abuse of injunctions. He concluded that, although tweaks need to be made to the system, media judges are largely doing their jobs well.

The media has hailed it as a victory for press ­freedom, while lawyers say that in reality very little will change as matters are, and always will be, decided on a case-by-case basis.

By the end of the day the ’CTB’ affair had exploded on online social networking site Twitter, and Schillings, which is advising the ­Premiership footballer, was publicly branded the bad guy in the case.

This is nothing new for Schillings. It has built a ­reputation as a Rottweiler by fighting the press, ­winning itself some big-name clients and not caring about the PR consequences.

The last time Schillings found itself in the eye of the storm was over US golf star Tiger Woods. Former ­partner Simon Smith was successful in his bid for an injunction preventing any newspaper from publishing “naked or any naked parts of [Woods’] body or of him in any sexual activity”.

Smith, who was instructed by Woods’ management rather than the sportsman himself, quit the firm just weeks later and is now ­working in Scotland.

The firm has been ­working hard to rebalance its profile and now says that only a quarter of its practice services the needs of the rich and famous. That said, itstill counts Naomi ­Campbell and Gordon Ramsay among its clients.

These two are looked after by partner Gideon Benaim, the lawyer who made the claim on behalf of the ­footballer against Twitter.

“He has a wealth of ­experience,” one rival lawyer says tentatively, adding: “Schillings has a certain way of writing letters, everything has a time limit on it. It’s very aggressive, but that’s what they’re paid for.”

Another partner says: “He’s very much in the Schillings style, very switched on and always pushing for the answers. I guess that’s because of the Rottweiler setting he’s in, and people want that approach.”

Benaim was promoted to partner in 2006. In 2008 he made a real impact on the law after he acted for Harry Potter author JK Rowling in a case against celebrity picture agency Big Pictures in the Court of Appeal. The case concerned pictures taken of Rowling’s son that were then published in the Daily Express.

The ruling, in favour of the author, confirmed that Article 8 of the European Convention on Human Rights, the right to privacy and family life, is engaged whenever people have a “reasonable expectation of privacy”, and that can occur at quite an ordinary level.

Benaim has acted for the author ever since, most recently in defending a ­plagiarism claim currently being pursued against Rowling by Paul Allen, trustee of the estate of the late Adrian Jacobs, author of Willy the Wizard.

Benaim is also the go-to lawyer for Naomi Campbell and was part of the legal team advising her when she was called to give evidence at The Hague at the trial of former Liberian president Charles Taylor.

The footballer affair was not Benaim’s only foray into the public eye last week. When Mr Justice Eady lifted an anonymised judgment on Wednesday (25 May), he revealed that Gordon ­Ramsay’s father-in-law Chris Hutcheson, also ­represented by Benaim, had a second family.

In both these cases Benaim instructed Matrix Chambers’ Hugh Tomlinson QC, who is a regular in Court 10 appearing for claimants.

Tomlinson can claim credit for helping establish the ’DFT order’, a gold-­plated super-injunction that restricts publication on the contents of the judgment and order. Since it was first devised in September last year in DFT v TFD, it has become the norm and has been used repeatedly by Tomlinson’s list of clients.

This includes MNB, later revealed to be former head of RBS Fred Goodwin, who is alleged to have had an affair with a colleague, and MJN, a footballer who is alleged to have had an affair with a lingerie model.

But one lawyer points out that “[Tomlinson’s] not the kind of person who makes you quiver with fear in court. His expertise lies in human rights jurisprudence, which I suppose is what makes him so good at injunctions.

“He’s more of an aca-demic barrister and it would be fair to say that [Mr ­Justice] Tugendhat and [Mr Justice] Eady listen to him.”

Tomlinson, it seems, is relatively new to this arena and yet is an obvious Schillings favourite.

His firm opponent in the courts is 4-5 Gray’s Inn Square’s Richard Spearman QC, who is instructed regularly by Farrer & Co partner Julian Pike to represent News Group Newspapers (NGN), owner of The Sun.

Farrers’ relationship with the Murdoch empire spans decades and originates from a relationship between NGN head of legal Tom Crone and partner-turned-consultant Robert Clinton. That relationship has now been passed on to Pike.

“He’s a tough cookie,” one defendant lawyer says of Pike. “These cases move very fast. He has to be available all the time, the pressure he’s under is immense. You have to be tough if you’re dealing with editors and in-house lawyers. You have to be bloody good too.”

Pike and Spearman will also find themselves up against 5RB’s David ­Sherborne QC and other Schillings favourites, ­including One Brick Court’s Andrew Caldecott QC, who acted for Associated ­Newspapers on the Fred Goodwin case.

This small band of ­barristers and lawyers is playing a high-stakes game of tug-of-war – and others outside the court want to get in on the act.

INJUNCTIONS LINE-UP

Adakini Ntuli v Howard Donald, Court of Appeal
Issued
: 16 November 2010
Appellant: JMW partner Charlotte Harris (now at Mishcon de Reya) instructed Matrix Chambers’ Hugh Tomlinson QC and Taylor Hampton solicitor-advocate Mark Lewis for Ntuli.
Respondent: Schillings partner Rachel Atkins instructed 5RB’s David Sherborne for Donald.
Intervenor: Doughty Street Chambers’ Heather Rogers QC instructed by Guardian News & Media.

MNB (Fred Goodwin) v News Group Newspapers, High Court
Issued
: 9 March 2011
Claimant: Olswang partner Geraldine Proudler instructed Matrix Chambers’ Hugh Tomlinson QC for MNB.
Defendant: Farrer & Co partner Julian Pike instructed 4-5 Gray’s Inn Square’s Richard Spearman QC for News Group Newspapers.
Order varied 23 May to reveal Sir Fred Goodwin as claimant

Claimant: As above
Defendant: Farrer & Co partner Julian Pike instructed 4-5 Gray’s Inn Square’s Richard Spearman QC for News Group Newspapers.
Intervenor: Farrer & Co partner Julian Pike instructed 4-5 Gray’s Inn Square’s Richard Spearman QC for MGN, owner of The Mirror. Reynolds Porter Chamberlain partner Keith ­Mathieson instructed One Brick Court’s Andrew Caldecott QC for Associated Newspapers.

MJN v News Group Newspapers, High Court
Issued
: 11 May 2011
Claimant: Schillings partner John Oakey instructed Matrix ­Chambers’ Hugh Tomlinson QC for MJN.
Defendant: News Group Newspapers instructed 4-5 Gray’s Inn Square’s Richard Spearman QC directly.

CTB v (1) News Group Newspapers and (2) Imogen Thomas, High Court
Issued
: 23 May 2011
Claimant: Schillings partner Gideon Benaim instructed Matrix Chambers’ Hugh Tomlinson QC and Sara Mansoori (previously
at 5RB) for CTB.
Defendants: Farrer & Co partner Julian Pike instructed 4-5 Gray’s Inn Square’s Richard Spearman QC for News Group Newspapers. David Price Solicitors & Advocates name partner David Price QC for Imogen Thomas.

(1) TSE (2) ELP v News Group Newspapers, High Court
Issued
: 23 May 2011
Claimant: Schillings senior associate Laura Tyler instructed One Brick Court’s Andrew Caldecott QC for TSE and ELP.
Defendant: Farrer & Co partner Julian Pike instructed 4-5 Gray’s Inn Square’s Richard Spearman QC.

WHAT THE BLOGGERS SAY…

The advent of Twittergate invigorated the legal bloggers, who gave their valuable insights into the actual legal arguments behind the media storm. Here The Lawyer selects the best of the blogs:

Hemming does his worst
There’s nothing wrong with the privacy law ­Parliament enacted in the Human Rights Act 1998, and which the judges are loyally applying – except that redtop newspapers want to breach and destroy it in their own commercial interests, and that many internet users have allowed themselves to be ­persuaded to flout it by a one-sided, self-serving and ill-informed media onslaught. I find it astonishing that, against the background of the News of the World phone-hacking scandal, so many people swallow
the claim that it’s judges who are out of control. As ­Alastair Campbell has implied in what he’s tweeted, what’s happened is no victory for free speech, but for the worst of British journalism.
From: Head of Legal, 23 May

What should CTB have done to protect his position in Scotland?
Further to my blogpost on the Sunday Herald’s ­identification of CTB, I was asked what CTB could have done to stop a Scottish newspaper publishing and distributing within the Scottish jurisdiction a story relating to his injunction? The answer is simple – the Scottish courts have a history of taking a friendly approach to enforcement of foreign judgments. But if you don’t ask, you won’t get. And your client is – to use a technical expression familiar to Scots lawyers – shafted.
From: Love and Garbage, 23 May

On the injunction sought by CTB’s lawyers
The interim injunction was an important remedy in privacy law. It supposedly prevented the private ­information being disclosed in the first place, and so sought to ensure that the genie was kept in its bottle.
Private information, once made public, cannot be made private again. The interim privacy injunction gave real effect to the right to privacy, which every person has under the Human Rights Act.
Against this, the tabloids want to be able to publish just what they want, regardless of the laws on phone-hacking, data protection, contempt of court and ­personal privacy. The tabloids, in effect, want no law to apply to them that would fetter their absolute ­freedom to publish.
From: David Allen Green, New Statesman

MP has ’revealed’ footballer’s name, but is it safe to repeat it?
John Hemming MP has ’revealed’ the name of a ­footballer who has been trying to keep his alleged affair private. Does this mean that the privacy ­injunction in question is now effectively defunct?
Many media organisations will see Hemming’s actions as licence to break the injunction; The Guardian, BBC and The Sun appear to have done
just that (assuming Hemming has named the right footballer). This dam may indeed have broken,
making it practically impossible to bring contempt ­proceedings. But the general public should still be aware, in this case and in those which will undoubtedly arise in future, that the legal position on repeating the name while the injunction still stands is still murky.
From: UK Human Rights Blog, 23 May