If you want to understand why British newspapers have been so exercised in recent weeks by what they misleadingly refer to as “superinjunctions”, read the judgment delivered on June 9 by Mr Justice Tugendhat — one of three High Court judges who specialise in media cases.
Even though Goodwin v NGN Ltd deals with matters that are intrinsically private, the 34-page judgment and many others like it were immediately published online by BAILII, a hand-to-mouth charity that all lawyers rely on but which few are willing to support.
Goodwin is, of course, Sir Fred, the former chief executive of RBS, which had to be bailed out by the taxpayer after taking over ABN Amro. NGN is News Group Newspapers, publishers of the Sun. Incidentally, those who don’t like three-letter abbreviations, or TLAs as they are inevitably called, will find all this rather heavy going.
That’s because the courts now assign a random TLA to any party whose anonymity they wish to protect during a court hearing. Goodwin was known only as MNB until he was named in the House of Lords on May 19 by Lord Stoneham. As Tugendhat said, the Lib Dem peer was “frustrating the purpose of the court order and thus impeding the administration of justice” by identifying MNB.
The decision given on June 9 did not directly affect Goodwin himself; it involved a former colleague at RBS with whom the banker had a sexual relationship. Although she was initially no more than a name on a confidential schedule, this colleague later became what lawyers call an interested party and was awarded her own TLA, which turned out to be VBN.
That was because Tugendhat was being asked to decide whether VBN could now be named by the Sun. NGN wanted to vary the injunction that Goodwin had obtained against NGN on March 1, a few hours after the newspaper had first approached him.
This, of course, was the injunction that was misrepresented in parliament by a Lib Dem MP and misreported by most of the media. John Hemming told the Commons on March 10 that Goodwin had “obtained a superinjunction preventing him being identified as a banker”. As some of us noted at the time, what the court order had actually prevented us from reporting was that a banker had obtained an injunction banning reports of a sexual affair.
At that time, reporters risked being in contempt of court themselves if they disclosed that Goodwin was MNB: linking the two identities would have enabled people who had read the judgment published a day earlier to work out what it was that Goodwin was seeking to hide. Later, Goodwin accepted that he could be identified as MNB.
In the judgment he delivered on June 9, Tugendhat explained that the Goodwin case raised the important question of when it might be in the public interest to disclose the fact — though not the details — of a sexual relationship.
“Newspaper editors have the final decision on what is of interest to the public,” he observed. “Judges have the final decision on what it is in the public interest to publish.”
VBN had told the court that publication of her name would be a very serious intrusion on her private and family life, the right protected by Article 8 of the human rights convention. She acknowledged that her identity had already been disclosed-presumably on the internet — but it had not become widely known.
But there was little to support her claims: both she and Goodwin chose to put only very limited evidence of their respective family circumstances before the court, fearing that information disclosed in the course of litigation might leak.
This may have been a mistake. The judge said he could do no more than proceed on the basis that Goodwin “did have a relationship with VBN, as alleged by the Sun, that he had not told any of his friends or colleagues at work about it, and that his friends and colleagues would view the relationship with serious disapproval”.
After explaining how the courts were required to balance Article 8 against Article 10 — which protects freedom of expression — Tugendhat said that the right to private life embraced not only access to personal information but also intrusion into someone’s personal space — a new and still controversial development in the law. The judge then drew a distinction between the details of a sexual relationship and the fact that one existed. The latter was something that many people were proud to proclaim by, for example, wearing wedding rings or by merely going out together to meet friends.
Although publication of VBN’s name was a significant intrusion into her private life from which she was entitled to be protected, information about her job description was “an important feature of the story”, the judge concluded. It could be published unless the appeal court ruled otherwise.