Imogen Thomas and Ryan Giggs shaft newspapers
RYAN Giggs has lost again. The Manchester United player claimed the Sun had “misused” private information. He was seeking damages for distress and a breach of his right to privacy in connection with his alleged affair with strumpet Imogen Thomas.
He presented his appeal to the High Court. And they tossed it out.
The Sun said Giggs’ claim was “dead in the water”.
Giggs said the Sun “misused” private information.
Mr Justice Tugendhat denied Giggs’ right to compensation.
The highlights of that ruling:
There can be few people in England and Wales who have not heard of this litigation. The initials CTB have been chanted at football matches when Mr Giggs has been playing for Manchester United. And Mr Giggs has been named in Parliament, raising questions as to the proper relationship between Parliament and the judiciary.
In the issue of The Sun dated Thursday 14 April 2011 the First Defendants published an article on pages 1 and 4 under the heading “Footie Star’s Affair with Big Bro Imogen” (“the Article”). It did not name Mr Giggs but in due course the fact that Mr Giggs was the footie star referred to became very well known. The First Defendant (“NGN”) is the publisher of The Sun.
On the same day Mr Giggs applied to Eady J, on short notice to NGN, and without notice to Ms Thomas, for a non-disclosure injunction and other orders which are set out in an order of that date sealed on 15 April. The proceedings were famously anonymised and Mr Giggs was referred to as CTB.
What is famous or notorious about this litigation, is that the order for Mr Giggs to be anonymised did not achieve its purpose. But as Eady J explained in his judgment of 16 May 2011 ( EWHC 1232 (QB)).
“The purpose of the exercise was to restrain publication not only of the identity of [Mr Giggs] but also of any further account, or purported account, of [a sexual relationship between himself and Ms Thomas]”.
Brilliant. In trying to suppress information, the story became huge.
It may be that, with hindsight, it can be said that Mr Giggs did not need to join NGN in the action. If Mr Giggs had known on 14 April 2011 that Ms Thomas was not the source of the Article, and if he had believed that NGN had no more information to publish, and no intention to publish, further information as set out below (para 10), it may be that Mr Giggs would not have joined NGN in the action. But he and his advisers could not have known that in April 2011. A claimant who is, or fears that he is about to be, the victim of an unlawful act does not always know which of two (or more) people is the wrongdoer. So he will sue both, in order to protect his position in any eventuality. If he succeeds against one defendant, he may have no further basis for proceeding against the other. But coming to terms with the person who, it turns out, is the wrong defendant may not always be easy. He may have to discontinue the action and pay costs if he cannot reach a compromise.
The Sun won?
NGN further submits that, as matters now stand, an injunction to restrain publication of the identity of Mr Giggs as the person referred to in the Article would be futile and unreal. The world at large has known that for many months. On any view, his identity as the subject of the Article is in the public domain. NGN also submits that Mr Giggs is not entitled to any, or any substantial, damages for the publication by it of the anonymised Article. And as Mr Spearman submitted, Mr Giggs has achieved vindication of his rights against Ms Thomas, and there is little if anything that he can obtain by way of further vindication in continuing the action against NGN.
It follows that NGN can hardly say that it has won this action, if it remains struck out. The fact that Mr Giggs was named as the subject of the Article was not something achieved by NGN in this action. It was a consequence of the acts of third parties out of court. As Mr Spearman submits, there is no suggestion that NGN was behind the widespread publication of Mr Giggs’s identity, so this is not a case where it could be said that his identity came into the public domain as a result of a breach by NGN of the injunction. And the effect of the undertaking given by Ms Thomas and NGN’s own statement (in para 10 above) is that it is no more free to publish a story about Mr Giggs today than it was immediately after Eady J had granted the injunction on 14 April. All that has happened is that it has become apparent that Mr Giggs did not need to join NGN in the action.
On 18 November 2011, Mr Giggs failed to comply with an order for directions made by me on 2 November. As a result of this omission, the claim in this action was automatically struck out, without there being a further order to say that. That this was the effect of what had happened was not appreciated by the parties until 4 January 2012. When it was appreciated Mr Giggs issued an Application Notice dated 9 January 2012. He asked the court to give him, under CPR Part 3.9, relief from the sanction of striking out, and to re-instate the action.
Thomas has vowed to reveal nothing abou any affair. Giggs may wish to review his legal arrangements. And Sun didn’t really win. What won was social media, whish onamed Giggs on twitter. This story is no triumph of print journalism. It’s just another sign that it’s outdated…