Lifting publicity restrictions

A and others v Times Newspapers Ltd and others (FD TLR 11 December)

Two fathers had each made an application under s8 of the Children Act 1989 directing that each of their respective young children be given the appropriate immunity injections to protect them from measles, mumps and rubella. The applications had caused considerable press interest with the result that on the morning of the hearing the respondent newspapers applied formally for the matter to be held in public. Their applications were opposed by all parties with the result that one full day of the hearing and part of the second day was lost. The applications were unsuccessful, but the newspapers resisted the parties’ applications for costs on the grounds that the parties themselves should have taken steps to ensure that the inevitable publicity was the subject of a ruling before the hearing began, and that costs orders should not be made in reporting restriction applications unless one of the parties had acted unreasonably. Although the judge made no order for costs (on the grounds that a pre-trial order had raised the expectation that part of the hearing might be in open court), he held that there was no obligation on the parents or CAFCASS to have taken any steps beforehand; it was for the press and media to consider before any hearing whether or not to apply for the normal restrictions on publicity to be lifted. If they presented an arguable, albeit unsuccessful, case they were unlikely to incur the risk of an adverse costs order on such a prior application. A late application, even though arguable on the merits, could be regarded as improperly applied for, with attendant cost penalties, where it unnecessarily caused disruption to a hearing.