The media world was very excited today by activities in the House of Lords. The notion that any form of excitement could emerge from the red benches is so surprising that people stopped and took notice. The excitement related to a question asked by Lord SToneham on behalf of his Liberal Democrat colleague, Lord Oakeshott.
“”Would he accept that every taxpayer has a direct public interest in the events leading up to the collapse of the Royal Bank of Scotland? So how can it be right for a super-injunction to hide the alleged relationship between Sir Fred Goodwin and a senior colleague. If true it would be a serious breach of corporate governance and not even the Financial Services Authority would be allowed to know about it.”
The potential implications of this allegation are of course serious. Robert Peston, BBC business editor, raced into action and pointed out that under general corporate governance rules (and those specifically applying to the Royal Bank) various questions arose:
“So if Sir Fred had a relationship with a senior colleague, in the way that Lord Stoneham suggests, three questions arise that are in the public interest to be answered:
1) was it in breach of Royal Bank’s internal code of conduct in any way;
2) could it have any bearing on decisions about the risks taken on by RBS; and
3) is there anything else about the putative relationship which regulators, shareholders and the banks’ non-executive directors should have known about?”
Although he hastily pointed out that
“it may turn out that the answer is no to all or most of these questions in respect of any relationship that may or may not have been formed between Sir Fred and a colleague.
In fact, if I was a betting man (which I’m not) I would wager that if there was an indiscretion, the governance breach and reputational damage to RBS would be rather less than in the case of a number of affairs with staff I know about conducted by chief executives of other companies.”
But in Peston’s view it seems that there were questions to ask that may have influenced decision making in a bank as it was failing- prior to it being bailed out by the taxpayers.
Of course we have known for some time that Sir Fred had an injunction. Lib Dem Mp John Hemming had raised the issue in Parliament. It was raised in a very odd way, though.
“In a secret hearing, Fred Goodwin has obtained a super-injunction preventing him being identified as a banker. Will the government have a debate or a statement on the issue of freedom of speech and whether there is one law for the rich, such as Fred Goodwin, and another law for the poor?”
As anyone familiar with the area would know any injunction in relating to a particular profession or occupation clearly related to what is referred to as “jigsaw identification” – the process whereby an injunction is circumvented by the piecing together of related aspects of the story which allows identification of the claimant and the subject of the injunction. The risk of jigsaw identification is, alongside allegations of blackmail (as in the Imogen Thomas case I considered earlier in the week) the principal reason for the claimant in the injunction being permitted to retain anonymity.
Aware of this that evening I carried out a quick search for “banker injunction”. This revealed various Scottish newspapers carrying stories following up a story from The Sun of 3rd March 2011 that a banking executive had obtained an injunction in relation to allegations that he had had an affair with a colleague just before the crash. Mr Hemming’s identification of Goodwin allowed someone familiar with the notion of jigsaw identification to work out who this banking executive was. And I and a colleague who had carried out the same searches had a chat about this (safely in Scotland well away from the writ of the High Court) the following morning. Parliamentary privilege was used to circumvent the order of the court, as it was today with the question in the Lords.
Now, various commentators – including Clive Coleman on the BBC, an apprently jubilant Jon Snow on Channel 4 news – and the relevant politicians – Mr Hemming and Lord Stoneham – have presented this as parliamentarians acting in the public interest and implying that the court had held that the public interest lay the other way. The naming of Sir Fred Goodwin (and the subsequent partial lifting of his injunction) is presented as a triumph for freedom of expression over privacy.
Of course as my regular reader will know the law as framed currently balances the right to privacy and the right to freedom of expression (see the posts on Imogen Thomas and the actors that had an affair). If Robert Peston was right there seemed to be potential public interest questions that could be considered. I was curious then as to why the order had been granted.
Now, in the UK judges can only do what they’re asked. Parties present arguments and have some degree of control over the material presented to the court. If you don’t ask for a particular remedy or don’t push a particular point then the judge will – typically, unless he or she goes off on one – find the other way. Judges are (as one Scottish judge put it) like referees at a boxing match, awarding points and adjuging at the end who landed the best and most telling blows.
Clearly given the Peston questions the public interest argument would have been made…
But examination of the judgment in the case, MNB v News Group  EWHC 528 (QB), a decision of Mrs Justice Sharp reveals otherwise.
The judgment makes clear a number of interesting points.
First, “At the start of the return date hearing before me, I was told the application for an interim injunction was no longer opposed” (para 5). The newspaper accepted the grant of the interim injunction following an initial telephone hearing. Why did the newspaper not pursue their objections? Could it be anything to do with their story on 3rd March that had noted that the paper had been gagged by a senior banker in relation to the alleged affair with a senior colleague? The newspaper was now arguing (paras 22-25) that,
“The Defendant submits in summary that publication of the article is not a breach of the order, nor does it contain any private information; and that no such injunction as is now asked for should be granted.
Mr Spearman complains first about the process. He submits it is unsatisfactory that the complaint has gone from a mention in a letter the evening before the hearing to an application asking for an order. He also submits that it would not be right for the court to embark on a resolution of whether the Defendant’s conduct does or does not amount to a breach of the order; the court should be wary of exploring such issues he says because the proper place for them to be resolved is in committal proceedings: the position is a fortiori he submits where matters are dealt with “on the hoof” in this way.
This would not however prevent the court from doing something else: changing the
original order for example, or granting a new one.
Second, he submits the Defendant is clearly not in breach of paragraph 1 of the order. The Claimant is not named, and he is not identified. The details to which objection is taken (“the details”) do not tend to identify him. Nor do they concern the subject matter of the action. The subject matter of the action is simply private information about the fact of the sexual relationship. This does not include his occupation or whether he is
married, or what others involved think about it. Far from being a flagrant breach therefore he says, quite obviously it is not. And in any event, the order made should be construed restrictively because there are committal sanctions if it is breached, and the benefit of the doubt should be given to the Defendant.
Mr Spearman submits moreover that it is not appropriate to restrain publication because the details are already in the public domain – and to that extent, an injunction would now serve no useful purpose. In this context, he refers me to publications in other newspapers which continue to be available online; and to Vestergaard Fransden A/S v Bestnet Europe Ltd  EWHC 1456 (Ch),  FSR 29 and British Broadcasting Corporation v HarperCollins Publishers Ltd and others  EWHC 2424 (Ch). The cases support, he submits, the proposition that if information is no longer confidential then no injunction should be granted to protect it, even as against
a person who was under an equitable duty not to disclose it. Further he submits that if any of the details are likely to be put into a public judgment, in which the Claimant is anonymised, it would be futile to make an order requiring what the Defendant has published to be taken down. But this places the role of the judge in a very different position to that referred to by the media today.”
This was in response to a complaint from the claimant (we now know, Goodwin) that the article was a breach of the earlier injunction and seeking to prevent jigsaw identification (see the argument at paras 15-21 which argues among other things that the whole reason material was in public was because The Sun had put it in the public domain by its 3rd March article).
What you will note in this is that one thing is missing in the argument for The Sun. There is no public interest defence. Their argument depended on the fact of publication.
So what of public interest? If Robert Peston was right about the impact on decision making at the time the bank was going into crisis there was potentially an argument that in revealing the information ”there would be a legitimate public interest in the revelation of this particular information, in so far as it is not already in the public domain, and whether publication would contribute to “a debate of general interest”, in the sense conveyed by the European Court of Human Rights in such cases as Von Hannover v Germany (2005) 40 EHRR 1. Would it help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or again, echoing the terminology of the Press Complaints Commission Code, would publication in some way prevent the public from being seriously misled?” (as Eady, J put it in the Imogen Thomas case).
But while at the initial expedited hearing “ two public interest justifications for its publication were advanced by the Defendant. By the time of the telephone hearing, the principal public interest justification had been abandoned. ” (para 1) and despite Mrs Justice Sharp having ”no doubt in my view that the Claimant’s article 8 rights are engaged, both in relation to the subject matter of the action, and the identification of him as the Claimant. There is no doubt either that publication of the information as to the fact or details of the affair will result in some interference with the Claimant’s private life. It is not currently suggested by the Defendant that there is a public interest in the publication of the information or that there is any other reason for it to be disclosed.” (para 6). No public interest argument in presented.
Mrs Justice Sharp therefore could not rule on whether or not the story was in the public interest. The point was never argued in defence. The relevant law was simply not used in detailed argument and this means
“I bear in mind that there is no public interest justification currently advanced for the publication of the central story tself; I also bear in mind the concession made by the Claimant as to the details which are not objected to. I have concluded on the facts, there is no sufficient general public interest in publishing the details to which I have referred”. (para 39)
If you don’t argue the point the court can’t consider it. But if the newspapers are not arguing the public interest point in cases like Goodwin’s when will they run such an argument, if at all?
All the court was left with then was a jigsaw identification question and the decision on that was influenced by the publication between the telephone and the return date hearing (see para 40)
Today then is no great triumph for Parliamentarians over the courts in a battle over the meaning of public interest. The battle over the meaning of public interest was not waged in the court.
A cynic may suggest that the newspapers are avoiding legal debate on the public interest issue – instead relying on publicity through material finding its way into the public domain (through whatever means) to justify their approach to journalistic content.
Would any legislation change that? Would it make things clearer for judges? Would it make newspapers any more likely to offer genuine public interest reason arguments in support of their more salacious stories?