When to continue: Kerner part 2

Dan Tench

In Kerner v (1) WX (2) YZ (Persons Unknown), Mr Justice Warby has continued an harassment injunction and ordered disclosure against the DVLA for details which may track down the respondent journalists. The continuation of the injunction is interesting in that is shows the extent to which the court is prepared to allow injunctive relief to remain in effect to prevent intrusive reporting, when (as is inevitable) the press interest is on the wane and the likelihood of intrusive reporting is consequently declining. In addition, the disclosure order confirmed that section 34 of the Senior Courts Act 1981 and CPR 31.17 could be used to require the disclosure of information leading to the identification of potential defendants.

We noted in January of this year that Warby J had granted an injunction to a mother and her son who had suffered press attention because her husband had been convicted of two offences of sexual activity with a child in breach of trust. The injunction, which was to prevent harassment from photographers, was granted simply against “persons unknown”, since she could not name the photographers in question. The order provided that if service could not be effected within three months, a further hearing should be convened before the judge. This was that hearing.

The judge took took the opportunity to consider whether the injunction should be continued. The mother claimed that she continued to be subject to a “relentless” press campaign, although the only actual newspaper article cited was one published in April in News Shopper online. The judge was a little skeptical noting that “Some of the evidence is lacking in detail“, “No detail of the ‘campaign’ is provided” and that the April article was “not an inflammatory one”. Nonetheless, he considered that the case was likely to remain “a subject of some, albeit probably intermittent, media attention and that there are grounds for concern that this might in the absence of continued injunctive relief lead to harassment”. He was thus prepared to continue the injunction having particular regard to the position of the son. He also held that even though the husband (who was evidently a more legitimate object of press interest and who was now back at home), could obtain some benefit from the injunction, this was incidental and was no reason to dilute its effect.

As for the disclosure order, the judge was prepared to use the provisions of section 34 of the Senior Courts Act 1981 and CPR 31.17 to order disclosure of material which would allow the identification of the defendants. He noted: “The wording of s 34(2) and CPR 31.17(3)(a) is perhaps not plainly and obviously apt to confer a power to order disclosure for the purposes of identifying an unknown party. In my judgment, however, it would be inappropriate to construe either provision in a narrow and literal way, as confined (for example) to issues arising from statements of case between identified parties, and not as extending to the question of the identity of an unknown party. To take that approach would tend to obstruct or hinder the fair disposal of litigation”.

Finally the judge stated as regards costs that although the DVLA was not in this case seeking any reimbursement for the costs of complying with the disclosure request “In another case, it may be that an undertaking or order to that effect would be appropriate, by analogy with the position where a Norwich Pharmacal order is made against an innocent third party”.

Kerner v (1) WX (2) YZ (Persons Unknown) [2015] EWHC 1247 (QB)

Post By Dan Tench (8 Posts)

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