UK: High Court Warning To Applicants Seeking To Derogate From Open Justice

Last Updated: 8 January 2010
Article by Susan Barty and Susie Carr

The recent High Court ruling in G and G v Wikimedia Foundation Inc [2009] serves as a warning to any applicants for interim injunctions who may seek to rely on derogations from the open justice principle. Mr Justice Tugendhat held that any derogations must be ordered only when it is "necessary and proportionate" to do so and where the order is "limited in scope" to what is required in the particular circumstances of the case.

In this case, the judge refused to grant parts of the order sought, for which the applicants failed to provide adequate supporting evidence.

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The recent High Court ruling in G and G v Wikimedia Foundation Inc [2009] serves as a warning to any applicants for interim injunctions who may seek to rely on derogations from the open justice principle. Mr Justice Tugendhat held that any derogations must be ordered only when it is "necessary and proportionate" to do so and where the order is "limited in scope" to what is required in the particular circumstances of the case.

In this case, the judge refused to grant parts of the order sought, for which the applicants failed to provide adequate supporting evidence.

Background

The case of G and G v Wikimedia concerned an application to the High Court for a Norwich Pharmacal order against Wikimedia Foundation Inc, the Florida based organisation which runs online encyclopaedia, Wikipedia. The purpose of a Norwich Pharmacal order is to compel a third party who is not alleged to be a wrongdoer, but is caught up in the wrongdoing of another, to identify or help identify the wrongdoer.
In this case, a mother sought an order to require Wikimedia to disclose the IP address of the person who had amended an article on Wikipedia and inserted private and sensitive information in relation to her and her child. The applicant suspected that the person who had amended the website was the same individual that had sent her an anonymous communication about the relevant information in an attempt to blackmail her. She also suspected that the person was an employee who was engaged in a dispute with a company with which she was associated. The applicant sought the IP address so that she could identify the person who had disclosed the private material and seek legal remedies to prevent any further breach of privacy or disclosure of confidential information.

Wikimedia had indicated that it would not voluntarily disclose the IP address of the alleged wrongdoer without a court order, but that it would be willing to comply with any court order requiring disclosure, even though it was a Florida based company and would be outside of the jurisdiction of the English courts. Wikimedia did not appear before the court and were not represented.

The judge granted the order but limited its scope.

Anonymity for the Respondent

Part of the proposed order gave Wikimedia anonymity. However, the judge refused to grant this as Wikimedia had not indicated that it required anonymity and there appeared to the judge to be no obvious grounds for requiring anonymity. He acknowledged that in some cases it may be appropriate for respondents to be granted anonymity if the naming of a respondent may indirectly enable readers who already know some information about the case to identify the case. This is sometimes referred to as 'jigsaw identification'.

Access to the court file and public hearings

A further order was sought to create a complete ban on non-parties obtaining copies from the court file. The general rule under Civil Procedures Rule 5.4C is that a person who is not a party to proceedings may obtain from the court records a copy of a statement of case and a judgment or order given or made in public. The judge highlighted the fundamental rule that hearings should generally be in public and that this had been an established principle of English law for centuries. Private hearings and restrictions on access to the court file are derogations from this central principle and should only be ordered where necessary and proportionate to do so and any orders should be limited in scope in accordance with the particular facts of the case.

In this case, the judge concluded that, "no reason was advanced, in evidence or argument, as to why the statement of case against the respondent should not be obtained by a non-party in the normal way". He stressed that it is important that counsel and others who apply for any orders derogating from the principle of open justice do not overlook the fact that they have to adapt any restriction on reporting or open justice to what is no more than necessary and proportionate in the circumstances of the particular case.

Accordingly, the judge refused to grant this aspect of the order and ruled that copies of any statement of case could be obtained but only if the documents were first edited to remove the names of the applicants and a user name shown in a confidential annex. Although the hearing was held in private, the judgment was published for the same reasons.

The Requirement of a Return Date

Mr Justice Tugendhat also highlighted that paragraph 5.1 of the Practice Direction to Part 25 of the Civil Procedure Rules includes a requirement for any injunction to include a return date unless the court ordered otherwise.

Comment

Mr Justice Tugendhat reiterated the centrality of open justice and transparency in his powerful statement that, "if orders are drafted too widely, or made to apply for too long a period, the public's confidence in the administration of justice may be undermined". These words serve as a reminder to applicants and their legal advisers to ensure that due care and attention is expended in relation to draft orders as these are likely to be subject to intense judicial scrutiny, particularly in instances where the applicant is seeking a departure from the established principles of open justice.

G and G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB)
To view a copy of the full judgment, click here (www.bailii.org/ew/cases/EWHC/QB/2009/3148.html).

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 05/01/2010.

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