Judge refuses to rubber stamp pre-agreed anonymity order

Giving effect to the terms of a pre-arranged consent order between a well-known public figure and a newspaper group involved in a privacy row would be contrary to open justice, a senior media judge has ruled.

The claimant, known only as JIH, secured an anonymity order in August shortly after a newspaper part of Rupert Murdoch's News Group Newspapers published a story about him, preventing the publication of further stories.

Last month the parties returned to the High Court with a pre-drafted consent order to extend the anonymity order until final judgment in the case, asking the court to validate it.

'It was clear (as has since been confirmed) that they expected the court to make the order without consideration of any other document,' Mr Justice Tugendhat ruled in JIH v News Group Newspapers [2010] EWHC 2818 (QB).

'But the form of order contained derogations from the principle of open justice,' he continued. 'The parties now accept that an order for anonymity and reporting restrictions cannot be made simply because the parties consent: parties cannot waive the rights of the public.'

If article 8 privacy rights were engaged, Tugendhat asked, the question was whether there was 'sufficient general, public interest in publishing a report of proceedings which identifies that party to justify any resulting curtailment of the rights of that party and his/her family to respect for their private and family life'.

The judge found that article 8 was engaged in this case, 'both as to the subject matter of the action and, to a lesser extent, as to the identification of the claimant'.

However, Tugendhat J said the proposed justification for anonymity was that identification would prevent the attainment of justice, but that the test the claimant had to pass was one of 'strict necessity" which he said the claimant had not satisfied in this case.

'The claimant has not shown to that high standard that the object of achieving justice in this case would be rendered doubtful if the anonymity order were not made,' he said.

He ordered for anonymity to be lifted but not before the parties had decided on whether they would appeal.

The judge also commented on privacy litigation, saying that parties were free to agree settlement but said that 'it is not to be assumed that news publishers are always concerned to protect the article 10 [freedom of expression] rights of the public and their competitors'.

Altough he added there was no suggestion in this case that "there has been such a bargain at the expense of the public. I simply decline to attach weight to NGN's agreement to the form of consent order, in circumstances where there is no evidence as to why it has been agreed in that form."