Pressing for freedom

As head of the Queen’s Bench jury and non-jury lists, Mr Justice Tugendhat’s judgments are open to more scrutiny than most of his peers.

Like his predecessor Mr Justice Eady, Tugendhat J is constantly faced with the challenge of balancing the conflicting notions of freedom of expression and right to privacy.

As the press lobby fights back against what it sees as court-imposed reporting restrictions, Tugendhat J’s judgments are watched carefully by media lawyers, the press and the Court of Appeal (CoA).

On Monday (31 January), the Master of the Rolls Lord Neuberger delivered an eagerly anticipated judgment on media injunctions, assessing Tugendhat J’s first instance ruling in the process.

The case, JIH v News Group Newspapers, concerned the right of a high-profile sportsman to prevent his alleged lover from selling details about their alleged sexual encounters to the tabloid press.

A story about the claimant had already been published in a national tabloid, without prior notification. When the claimant discovered that the defendant newspaper planned to run another story about a separate alleged affair, JIH called the lawyers in and Mr Justice Nicole granted an interim injunction pending a hearing.

At this point the parties began negotiations, reaching the conclusion that any hearing should take place in private and that the identity of the claimant would not be disclosed pending the final hearing. When the case came before Tugendhat J, however, he refused to endorse any deal without first hearing arguments from both sides.

Then, having heard submissions from both sides, Tugendhat J refused to continue the anonymity order and an appeal was immediately lodged by the claimant.

As is becoming increasingly common the defendant received support from other media outlets, with written representations put forward by Guardian News & Media and The Media Lawyers Association, displaying a show of media strength before the court.

Such cases are at the heart of the great debate about the right to privacy and Neuberger MR’s interest in them is more than fleeting. He sat with the Lord Chief Justice Lord Judge in the high profile BCA v Singh trial, (1 April 2010) which some saw as a tactical move by the judiciary to calm the storm over judicial intervention in newspaper reporting.

In his latest ruling Neuberger MR gives an insight into the principles that the senior judiciary would like to see applied when balancing the rights to privacy with the freedom of expression. In doing so, the court showed its support for publicly disclosing the injuncted information while granting anonymity for the claimant. This is significantly different from allowing the press to only publish the bare facts of the injunction without details of the story in question. It is also at odds with Tugendhat J’s ruling, although the CoA says he was right to hear submissions before accepting any deal between the parties.

Undoubtedly, the ruling will become a point of discussion in future battles for injunctions.

Meanwhile, Tugendhat J will continue to cause controversy – how can he not when the issues before him are of such a sensitive nature and are seen as a matter of national importance?