HomeInsightsKerner v WX – High Court stresses the importance of the media receiving notice of relevant applications for interim non-disclosure 

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This article was written by Sarah Branthwaite, Solicitor, Wiggin LLP and first published in the Entertainment Law Review in April 2015.

On an application brought by the wife of a teacher convicted of offences of sexual activity with a child, the High Court granted an interim injunction restraining harassment by journalistic photography, but declined to grant an injunction restraining publication of any photographs*Ent. L.R. 151  already taken, in the absence of notice to those against whom such an order would in practice take effect, i.e. the media. Warby J followed the Master of the Rolls’ Practice Guidance for Interim Non-Disclosure Orders,2 which makes it clear that all reasonable and practical steps must be taken to provide both respondents in the proceedings and non-parties, who are to be served with or notified of a non-disclosure order, with advance notice of the application for the order and that failure to provide such notice can only be justified on “clear and cogent evidence” or by “compelling reasons”. Further, the Guidance states, where a respondent or non-party is a media organisation, “only rarely will there be compelling reasons why advance notification is or was not possible on grounds of either urgency or secrecy …”

 Background

In December 2014, the husband of the claimant, Mrs Kerner, was convicted of two offences of sexual activity with a child in breach of trust and received a suspended sentence of 18 months. The sentence became the subject of considerable comment and media interest.

Mrs Kerner’s witness statement (supporting her application for an interim injunction restraining harassment by journalistic photography) recounted that on the morning of January 22, she left home to go to school with her son Jack (aged nine), when they were rushed upon by two men with photographic equipment and long lenses, who described themselves as “freelance”, and “aggressively photographed”. Mrs Kerner and her son ran back into the house and asked the men to go away, but they did not. One remained for over an hour, continually taking photographs including “intrusive photographs through the front bedroom window” and photographs of Jack.

Mrs Kerner prepared a sign with the words “Under cl 4 of Editors’ Code of Practice Cease and Desist from harassing me and my child”, went outside one hour later and held it in front of her face. The photographer who remained took pictures of her with the sign and of Jack. Eventually, he walked across the road, made a phone call and drove away.

Mrs Kerner applied for an emergency interim injunction later that day based on apprehended harassment within the meaning of the Protection from Harassment Act 1997. She was given permission to also act in a representative capacity on behalf of her son. The proceedings were brought against the two photographers as “persons unknown” since it had been impossible to identify them in the time available.

The court considered that the interim injunction requested had two limbs. The first limb sought to restrain harassment by photography or videoing of Mrs Kerner or of Jack or any vehicle or premises belonging to or occupied by either of them; or by loitering within an exclusion zone of 100 metre radius from their home; or by knowingly pursuing either of them.

The second limb sought to restrain harassment by the publication by any third party of any material identifying Mrs Kerner or her son, or any details about them. Mrs Kerner’s evidence in support was that she did not wish any photographs of her, her son, or her property to be reproduced at all, and that any such publication would cause her anxiety, alarm and distress. She said that she anticipated that publication was likely and imminent.

Decision

Warby J first considered the notice requirement under Human Rights Act 1998 (“HRA”) s.12, which he said was plainly engaged. He considered that s.12(2) had been satisfied in respect of the intended photographer defendants—all practicable steps had been taken to notify them. There was no way that they could be traced, identified and notified in the available time, he said.

The court was also satisfied that there was a real risk that, in the absence of an injunction, that the conduct of the morning might be repeated and it was more likely than not that Mrs Kerner would obtain, at trial, relief against harassment by the unknown photographers aggressively taking photographs of her and her son. Warby J therefore granted an interim injunction to that effect.

However, Warby J refused to grant the second limb of the injunction, especially due to the absence of notice to those against whom the order would in practice take effect, i.e. the media. Warby J noted that the application was effectively an application for a non-disclosure order and was therefore subject to the Master of the Rolls’ Practice Guidance.

Under the heading “Notice of application”, the Guidance states that s 12(2) of the HRA applies in relation to both the respondents in the proceedings and to any “non-parties who are to be served with or otherwise notified of the order, because they have an existing interest in the information which is to be protected by an injunction”. The Guidance continues by stating that both respondents and non-parties to be served with the order are entitled to advance notice of the application hearing and should be served with a copy of the Application Notice and any supporting documentation before that hearing.

The Guidance also states that applications must satisfy the court that “all reasonable and practical steps have been taken to provide advance notice of the application”. Applicants must also inform the court of any non-party that they intend to notify. Further, the Guidance states, “Failure to provide advance notice can only be justified on clear and cogent evidence, by compelling reasons …” and, where a respondent or non-party is a media*Ent. L.R. 152  organisation, “only rarely will there be compelling reasons why advance notification is or was not possible on grounds of either urgency or secrecy …”

The court noted that Mrs Kerner intended, once an order was obtained, to give notice of it to the media generally. However, none had been forewarned of the application contrary to the Practice Guidance and contrary to HRA s.12(2). Further, it was not suggested that attempts had been made to do so or that there was any compelling reason why it should not be done. Warby J found that, in any event, although it was possible to commit harassment by publication, the evidence in this case fell “a long way short” of establishing that harassment by publication was likely to occur. In addition, the form of order sought was “far too broad” and not based on the Model Order attached to the Practice Guidance.

Second hearing

On January 29, 2015, the return date of the interim injunction granted on January 22, Mrs Kerner asked the court to continue the injunction.

At this second hearing, Mrs Kerner made a further witness statement informing the court of the steps that she had taken to attempt to identify the defendants. She explained that she had given notice to three newspaper groups, none of which had responded, and had contacted the DVLA in an attempt to trace the registered keeper of the car driven by one of the photographers, the registration number of which she had taken during the course of the events complained of. She also confirmed that she would serve proceedings if and when she identified a defendant but, at present, neither had been served or notified.

Warby J was satisfied that the need for the interim injunction granted the previous week had not expired and should be continued in the form previously granted until trial or further order. Warby J also considered how the case should be managed and requested that Mrs Kerner give an undertaking to the effect that she would keep third parties informed of the progress of the claim and should her reasonable endeavours to trace the defendants not bear fruit within three months, she would apply to the court for directions as to the further conduct of the case. This, the court said, was to ensure that the interim order did not, by default, become permanent simply because the defendants could not be traced.

Comment

The case is a good reminder of the importance of the notice provision in Human Rights Act s.12 and the value of the Master of the Rolls’ Guidance on the subject. Here, the judge followed the Guidance carefully, giving due regard to the need to protect the media’s freedom of expression according to HRA s.12(2). The case is also interesting from a case management perspective. Warby J was keen to avoid the situation whereby the interim injunction might become permanent due to no further case management taking place as a result of the defendants not being identified. Imposing a three-month deadline on Mrs Kerner in which to use all reasonable endeavours to identify the defendants and, if unable to do so, to return to the court for directions, effectively means that the courts remain fully involved and the case remains active.

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