The Guardian's fight to name Michael Fawcett

Guardian lawyer Siobhain Butterworth explains how the paper fought last week to name the former royal servant Michael Fawcett

They are known in the trade as "Friday night" injunctions because they are granted to celebrities against weekend tabloids at short notice. This is what happened when the Mail on Sunday put allegations about Michael Fawcett and Prince Charles to Clarence House, on Saturday morning, nine days ago. In accordance with tradition, the subject of the allegations rushed to court and got a gagging order.

Broadsheet newspapers like the Guardian don't get too many Friday night injunctions because we don't usually patrol the same territory as the tabloids but there are occasions when our paths cross and the Fawcett injunction was one of them. From this newspaper's point of view the "starting point" is freedom of expression. The question is not, "why should we publish?" but "why shouldn't we?" This is what we asked Michael Fawcett's lawyers a week ago today, when they told us that we could not say that Fawcett had obtained an injunction. They told us this would be contempt and, curiously, that we would also be repeating false allegations. How, we asked, could we be said to be repeating anything by simply saying that he had obtained an injunction?

But let's go back a bit. At about 4pm last Monday Mr Fawcett's lawyers, Kingsley Napley, called me. Earlier, they had spoken to one of our journalists, David Leigh, and they were worried we were about to publish the allegations covered by the Mail on Sunday order. I asked to see it. Contempt is, in theory at least, a go-to-jail card and I really didn't want to have to tell the editor to pack his toothbrush if he ended up being prosecuted as a result of the newspaper breaching a court order. But Mr Fawcett's lawyers refused. The order, they said, was confidential and the court file had been "embargoed". This was highly unusual. We were stranded; we knew that Fawcett had obtained the injunction but as we hadn't seen it we didn't know what we could or couldn't say. We were left in the ridiculous position of having to ask whether particular statements would or would not breach the order, a sort of Rumpelstiltskin game for lawyers.

During our conversations on Monday afternoon and evening it became clear that Fawcett had obtained the injunction on the grounds of libel rather than confidence. This was all very curious: the rule in a famous case, Bonnard v. Perryman, established that it is very difficult indeed to get an injunction in libel cases, yet Fawcett had done so. The crucial factor was that the Mail on Sunday did not claim the allegations were true.

There was some doubt in my mind, at this stage, as to whether the injunctions granted against the Mail on Sunday could affect the Guardian. Although it is accepted, since the Spycatcher case, that injunctions in confidence cases are binding on all the world, there is little authority to say that the same is true in libel.

But, as I had indicated to Kingsley Napley in my first conversation with them, the Guardian was interested only in publishing the fact that the injunction had been granted, and this is what I told them at about 6.45pm on Monday evening. They called me back at about 7pm to tell me that they were applying for an injunction against the paper.

A few minutes later they left a message with my colleague, Nuala Cosgrove, that another duty judge, Mr Justice Henriques, had made an order - on the telephone, from the back seat of a car, while sitting in traffic - preventing us from naming Fawcett. We didn't even have the chance to make representations to him. So we were stymied on Monday night. But we resolved to fight. The editor's view was that the public should be allowed to know who was getting an order preventing the press from publishing information, particularly where that person is a former royal servant and the case involves a member of the royal family. There were two very important principles at stake - open justice and freedom of expression.

There followed two days of going backwards and forwards to the high court with our barristers Adrienne Page QC and David Sherborne, first in front of Mr Justice Henriques, who had made the order against us. He quite rightly decided that the case should be dealt with by a specialist judge and so we moved on to Mr Justice Tugendhat, who heard the case, in private, on Wednesday. It looked as if it was going to be a hard and bitter fight that would involve analysis of some complex areas of media law. The outcome was uncertain and meanwhile, outside the court case, the story was developing in all directions.

We do not know why but our opponents suddenly changed tack and conceded what we told them all along - that we were only interested in the principle of naming someone who had restrained the press and not in the allegations themselves.


Siobhain Butterworth

The GuardianTramp

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