Case No: HC-2017-001690
Neutral Citation Number: [2017] EWHC 1386 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Rolls Building,
Fetter Lane,
London, EC4A 1NL

Date: 12 June 2017

Before :

MR JUSTICE SNOWDEN

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Between :

	ROBIN SIMON GRAHAM MAKIN
(as executor of Ian Stewart-Brady (deceased))
 	Claimant	
	- and -		
	NEWS GROUP NEWSPAPERS LIMITED  	Defendant	

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Mr. Robin Makin (of E. Rex Makin & Co.) in person
Mr. Jonathan Caplan QC and Ms. Alex Marzec (instructed by Simons Muirhead and Burton LLP) for the Defendant

Hearing date: 12 June 2017

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Judgment
MR JUSTICE SNOWDEN : 
Background
1.	Commencing at about 7.50 p.m. in the evening of Friday 19 May 2017 I heard an urgent application by telephone, by counsel on behalf of Mr. Robin Makin, who is the executor of the will of the late Ian Stewart-Brady, the infamous Moors murderer.
2.	The application was for an injunction to restrain The Sun newspaper from publishing an article containing details of Brady’s will and the requests which it contained in relation to his funeral arrangements.  The details had allegedly been obtained from a former executor who had been Brady’s mental health advocate, in circumstances which Mr. Makin claimed amounted to a breach of confidence.
3.	I was told that the hearing was exceptionally urgent because The Sun had refused to give an undertaking not to publish its article, and that the relevant part of the paper would be going to press at about 8 p.m.  Because of what was said to be the extreme urgency of the application, it was made without any proceedings having been issued and without my having been provided with any papers.
4.	The hearing by telephone lasted about 45 minutes and was attended by counsel on behalf of both Mr. Makin and The Sun.  After having heard argument, I refused an injunction, primarily on the basis that I was not satisfied that Mr. Makin was more likely than not to succeed at trial.  In making my decision, I took into account that,
i)	there was a public interest in the fact that the will contained details of a book which Brady had apparently written about his crimes which he wanted published;
ii)	there was obviously no risk that publication would cause detriment to Brady or his reputation;
iii)	the will would have to be made public in due course in any event; 
iv)	publication would not cause any material further prejudice to Mr. Makin in relation to the difficulties which he faced in making arrangements for Brady’s funeral.  There had already been intense media speculation and interest in that regard;
v)	there was a risk of significant loss and damage to The Sun if I granted the injunction, because it would have to stop, or make significant changes to its publication processes, if I were to require the article to be removed from the newspaper; and 
vi)	 as executor, Mr. Makin had no significant assets from Brady’s estate with which to meet any cross-undertaking as to damages.
5.	Importantly, I also took into account an undertaking which I had been given by The Sun during the hearing not to identify, other than by generic description, a number of animal charities which were the beneficiaries of Brady’s will.  My concern in seeking that undertaking was that there was a material risk of loss to those charities if it were known that they were the intended beneficiaries of any monies obtained from publication of Brady’s book.  That fact might be a deterrent to potential donors to the charities, and the charities might be forced to incur costs dealing with revelation of that fact.  The Sun readily offered that undertaking, and I was told by counsel that the article that The Sun intended to publish did not in fact name the charities.
Breach of the Undertaking
6.	At about 11 p.m. that evening, and as I was approving a draft of the Order that I had made, I took the opportunity to search the on-line version of The Sun newspaper to see the article that had been published.  On doing so, I saw that, in breach of the undertaking that I had been given, The Sun had named the four animal charities that stood to benefit from Brady’s will. 
7.	I immediately telephoned both counsel who had participated in the telephone hearing and alerted them to that fact.  Shortly thereafter The Sun took steps to remove the offending information from the online version.  I have subsequently been told that a similar paragraph had also appeared in the first hard copy edition of the newspaper, but that it was removed from the second edition.
8.	This was plainly a serious breach of an undertaking given to the court, and, as such, a contempt of court.  News Group Newspapers Limited, the publisher of The Sun, has acknowledged that fact.  Through affidavits sworn by two senior legal officers of News Group and its parent company, News UK & Ireland Limited, it has explained that there was no deliberate intention to breach the undertaking and it has expressed its sincere apologies to the court.  Those points have also been re-emphasised by Mr. Caplan QC who has appeared for News Group at the court hearing this morning. 
9.	The affidavits which I have seen contain a detailed account of the results of an internal investigation at The Sun and News Group as to how the undertaking came to be breached. They explain that the names of the animal charities had in fact been removed from the first draft of the article by the legal department before the injunction hearing took place, but that in error, no legal marks were included which indicated that fact to those reading the draft.  This had the result that, in ignorance of the legal changes that had been made, the names of the charities were put back into a second draft of the article by a sub-editor, in conversation with the journalist who wrote the piece, whilst the hearing before me was taking place.
10.	I have not received evidence directly from the journalist and sub-editor concerned, but the senior lawyers who are the deponents of the affidavits state that they do not believe that either the journalist or the sub-editor were aware that the names of the animal charities had been removed by the legal department.  It is also implicit that neither the journalist nor the sub-editor were aware of the hearing taking place before me, a fact which Mr. Caplan QC confirmed to me on instructions this morning.  In any event, the simple fact appears to be that neither the journalist nor the sub-editor thought to check the reasons for the exclusion of the names of the animal charities with the legal department.
11.	Those errors were further compounded when, after the hearing, The Sun’s Chief Sub-Editor checked the final version of the article prior to publication, and noticed that it included the names of the charities.  However, he then checked the final version against an earlier draft which contained the names, which he wrongly mistook for the version that had been approved by the legal department.
12.	Finally, none of the in-house legal team who were aware of the undertaking that had been given to me at the telephone hearing sought to check the final version of the article as published on line or in hard copy.  That is a remarkable oversight, and it is, frankly, astonishing that it was left to me to bring the breach of the undertaking to the attention of News Group.
Conclusions
13.	Having read the evidence filed, and heard the further explanations offered by News Group in court this morning, I am prepared to accept that the account of events that I have now been given is true, and that the breach of the undertaking was the result of inadvertence rather than a deliberate breach.
14.	I must say, however, that I am very far from impressed by the sequence of events that the evidence discloses.  The simple fact is that there was an abject failure by News Group and The Sun to control the editorial process both during and after the legal proceedings that took place.
15.	It must be made clear that irrespective of whether journalists and editors are working to deadlines, as soon as a newspaper is aware that an intended publication is the subject of legal proceedings, it is imperative that systems exist to ensure that the outcome of the court proceedings is respected and obeyed.  That is so whether the outcome be the grant of an injunction to restrain publication, or, as here, the refusal of an injunction, in part because of the giving of an undertaking to the court.
16.	Against that background, I have to decide whether to take any further steps in relation to the breach of the undertaking by News Group.
17.	By a narrow margin I have decided that I should not do so. My reasons are, first, that I have found that the breach, though the result of a litany of errors, was not deliberate.  The attitude of the court to a breach of an undertaking or order will obviously be different depending on whether the breach was deliberate or due to inadvertence.  Secondly, The Sun took immediate action to remedy the breach once it had been brought to its attention, and I have no indication that Mr. Makin or the charities concerned have been harmed as a consequence.  Thirdly, and as I have explained, News Group, News UK and The Sun have taken the breach very seriously and given the court a full explanation and apology.
18.	Finally, and importantly, the evidence contains an assurance that the legal department and the managing editor of The Sun will be carefully considering specific recommendations for changes to the internal systems and procedures of the newspaper, to ensure that there can be no repetition of this breach.  I was told this morning by Mr. Caplan QC that changes have indeed been made.  I do not have precise details of what has been done, but suffice only to say that if this situation were to re-occur, there would doubtless be the closest scrutiny of the recommendations and changes that have been implemented.

Disposal of the proceedings 
19.	Having failed to prevent publication, Mr. Makin has indicated that he wishes to discontinue these proceedings.  I give him permission to do so pursuant to CPR 38.2 and waive any requirement for him to serve notice of discontinuance on News Group.
20.	I also have to deal with the costs of the proceedings.  In the ordinary course of events, and as I indicated at the end of the hearing on 19 May, I would have dealt with the issue of costs on paper.  Had I done so, the general rule would have resulted in Mr. Makin being ordered to pay The Sun’s costs of the hearing before me on 19 May.  
21.	However, in light of its breach of the undertaking, The Sun indicated at an early stage in correspondence that it would not be seeking its costs of the hearing on 19 May against Mr. Makin. That was obviously the correct decision.  The Sun has subsequently also agreed to pay Mr. Makin’s costs consequential upon breach of the undertaking, including the costs of the hearing this morning, in the agreed sum of £8,000 plus VAT.  I am content to make an order to that effect.
Postscript
22.	I should make it clear that no criticism whatever is directed at either counsel who appeared by telephone at the hearing on 19 May, and who responded with commendable speed when the breach of the undertaking was brought to their attention.