Factual and Procedural Background
In January 2009, the Plaintiff initiated proceedings, anonymised as WER v. REW, against Company A, seeking to restrain it from publishing certain private information ('the Information'). An interim injunction was granted by an additional judge of the Queen's Bench Division, restraining Company A from communicating the Information until trial or further order. The parties subsequently reached a compromise whereby the interim injunction would continue indefinitely and the Plaintiff's claim would not proceed further.
In 2010, Company B sought to publish the Information and applied to set aside the interim injunction. This application was heard by Judge Eady in November 2010, who held that the interim injunction had effectively ceased to bind third parties following the parties’ settlement, and thus Company B was free to publish. The Plaintiff issued fresh proceedings against Company B, seeking a new injunction, which Judge Eady refused in December 2010, balancing freedom of expression against privacy rights and applying the Human Rights Act 1998. The Plaintiff’s appeal against this refusal was dismissed by the Court of Appeal in July 2011.
The Plaintiff then sought permission to appeal against the earlier decision permitting Company B to publish despite the interim injunction. This application was stayed pending the outcome of the appeal against the refusal of the fresh injunction. Following dismissal of that appeal, the Plaintiff renewed the application for permission to appeal the first decision, which is the subject of this opinion.
Legal Issues Presented
- Whether the interim injunction continued to bind third parties after the parties' settlement, or whether it ceased to have interim effect and thus did not bind third parties such as Company B.
- The correctness of the decision in Jockey Club v. Buffham [2003] QB 462, which held that the Spycatcher principle applies only to interim injunctions and not final injunctions.
- Whether permission to appeal should be granted despite the appeal being arguably academic between the parties.
- Whether the appeal, if allowed, could affect the order for costs made in relation to the application to set aside the interim injunction.
Arguments of the Parties
Appellant's Arguments
- Even if the appeal is academic as between the parties, it raises points of sufficient general importance to justify granting permission to appeal.
- The interim injunction should continue to bind third parties until formally discharged by the court, regardless of any private settlement between the parties.
- The decision in Jockey Club v. Buffham was wrongly decided; third parties should be bound by final injunctions as they are by interim injunctions.
- The appeal is not truly academic because a reversal of the first decision could lead to a more favorable costs order for the Plaintiff.
Respondent's Arguments
- The appeal is academic as between the parties because the subsequent decision rejecting the Plaintiff's fresh injunction claim (upheld on appeal) permits publication regardless.
- An appellate court is reluctant to hear appeals where there is no live dispute between the parties.
- The Plaintiff’s offer to indemnify costs does not prevent the Respondent from being out of pocket for their own costs of the appeal.
- The costs order was likely made based on the second decision, not the reasoning in the first judgment.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney-General v Times Newspapers Limited [1992] 1 AC 191 |
Established the principle that a party with notice of an interim injunction risks contempt if they flout it (the 'Spycatcher principle'). |
Referenced to explain the risk of contempt for third parties aware of interim injunctions. |
| Attorney-General v Punch Ltd [2003] 1 AC 1046 |
Reaffirmed the Spycatcher principle regarding interim injunctions. |
Used to support the principle that interim injunctions bind third parties. |
| Attorney-General v Newspaper Publishing plc [1988] Ch 333 |
Discussed the Spycatcher principle as applied to interim injunctions. |
Referred to for the established nature of the principle. |
| Jockey Club v. Buffham [2003] QB 462 |
Held that once a final injunction is granted, the interim injunction is discharged and third parties are not bound by the interim injunction; the Spycatcher principle applies only to interim injunctions. |
Considered a key point of law challenged by the Plaintiff; the court noted its significance but did not overturn it. |
| Gawler v. Raettig [2007] EWCA Civ 1560 |
Guidance on when an appeal that is academic between the parties may proceed, emphasizing public interest and the presence of a live dispute. |
Applied to assess whether the appeal should be allowed despite being academic. |
| Bowman v. Fels [2005] EWCA Civ 226 |
Example of an appeal proceeding despite being academic, where other parties consented. |
Referenced as a comparator for academic appeals proceeding with respondent consent. |
| Rolls-Royce plc v. Unite Union [2009] EWCA Civ 387 |
Another example of an academic appeal proceeding with respondent consent, highlighting judicial caution. |
Used to illustrate the rarity and difficulty of allowing academic appeals. |
| Hutcheson v. Newspapers Limited [2011] EWCA Civ 808 |
Dismissed the Plaintiff’s appeal against refusal of a fresh injunction restraining publication. |
Upheld the second judgment, rendering the first appeal arguably academic. |
Court's Reasoning and Analysis
The court considered whether the appeal against the first decision should be permitted despite being arguably academic due to the subsequent upheld decision allowing publication. It acknowledged that the appeal raised points of some general importance, specifically whether an interim injunction continues to bind third parties after a settlement and the correctness of the Jockey Club decision. However, the court emphasised established principles that appellate courts are reluctant to hear appeals lacking a live dispute between parties.
The court identified three usual requirements for allowing academic appeals: the appeal raises points of general importance; the respondent consents or is indemnified against costs and prejudice; and the arguments will be fully ventilated. While the first and third requirements might be satisfied, the respondent opposed the appeal and would suffer costs without indemnity. Thus, the threshold for allowing the appeal was not met.
The court further considered the Plaintiff’s argument that the appeal could affect the costs order. It noted uncertainties regarding the sum involved and the basis for the costs order, which might have been influenced by the subsequent judgment rather than the first. The court found it probable that even if the appeal succeeded, the costs order would remain unchanged because the Plaintiff lost both stages of the dispute.
Consequently, the court concluded that the appeal was academic and that the reasons to permit it were insufficient, leading to refusal of permission to appeal.
Nevertheless, the court highlighted that it should not be assumed that the first decision’s reasoning or the Jockey Club principle would be approved if tested in a live dispute, and underscored the importance of adhering to Practice Guidance on Interim Non-Disclosure Orders.
Holding and Implications
The court REFUSED PERMISSION TO APPEAL against the first decision.
The direct effect is that the Plaintiff cannot challenge the earlier ruling that the interim injunction ceased to bind third parties following the parties’ settlement. This maintains the status quo where Company B is free to publish the Information, consistent with the subsequent upheld decision. No new precedent was set by this refusal, but the judgment provides guidance on the circumstances in which academic appeals may be permitted and reiterates the importance of compliance with Practice Guidance concerning interim injunctions.