The country’s most senior media judge Mr Justice Tugendhat has criticised Manchester United footballer Ryan Giggs, the woman he allegedly had an affair with Imogen Thomas and News Group Newspapers (NGN) for their conduct in their legal wrangling over a tabloid story about the alleged affair.
Rejecting Giggs’ bid for damages from NGN, publisher of The Sun, over the anonymised publication of a story about the alleged affair Tugendhat J said: “The way that this case has been conducted by the parties has done much to undermine the confidence in the administration of justice.”
Schillings partner Gideon Benaim, who instructed Matrix Chambers’ Hugh Tomlinson QC for the claimant, was forced to explain why he was seeking to bring the claim in January when the court had already issued a deadline of 18 November to issue directions. The claim, for alleged misuse of private information, had been struck out at that point and Giggs’s lawyers subsequently sought to reinstate it.
According to the judgment, the failure to hit the 18 November deadline was down to Schillings.
The judgment said: “He [Benaim] stated that it was as a result of an oversight in his office that the date of 18 November 2011 had not been noted. He took full responsibility for this and apologised to the court.”
The lawyers had been “concentrating on settling the proceedings with Miss Thomas and simply overlooked the need to comply with the 18 November deadline”, the judgment said.
Tugendhat J also ruled against granting a permanent injunction barring NGN from publishing more details about the alleged relationship between Thomas and Giggs as there was no evidence the newspaper group had the “means to publish or intention of publishing any further information relating to a sexual relationship between Giggs and Thomas”.
That decision, the court added, “can hardly be said to represent a victory for NGN”.
It continued: “It might be thought that where the defendant is a media organisation it would give priority to freedom of expression, and so require that a claimant progress a claim to trial as expeditiously as possible, with a view to vindicating its Article 10 rights, if it can. But experience has shown that media defendants rarely do that in privacy cases.”
NGN had been willing to delay the trial of the original action despite complaining publicly that its Article 10 right to freedom of expression had been breached. The judge also said NGN had been willing – as it had been in Goodwin v NGN – “to consent (again secretly) to a non-disclosure order interfering with the Article 10 rights of third parties”.
Regarding Thomas, who was not represented in this action but who has turned to David Price QC of David Price Solicitors & Advocates in previous cases, Tugendhat J said that her assertions that she was unable to put forward a defence in the original injunctive proceedings were unfounded.
“It follows that judges must give every opportunity they can give to a defendant to put her case before the court,” the judge said. “But a judge cannot compel a party to put her case before the court. […] Ms Thomas had the opportunity of putting her case and correcting any errors of fact.”
Simons Muirhead & Burton partner Louis Charalambous instructed 4-5 Gray’s Inn’s Richard Spearman QC to lead Jacob Dean of 5RB for NGN.