Terry (previously "LNS") v Persons Unknown [2010] EWHC 119 (QB)
Case date: 29/01/2010
Court: High Court
Area/s of law: Defamation, Privacy
An application for an interim injunction, brought in a privacy claim, was refused on grounds that the applicant was in substance, if not in form, seeking to protect his reputation and, therefore, the application fell foul of the rule in Bonnard v Perryman.
The application for an interim injunction
LNS, a high profile sports personality, applied without notice for an injunction restraining the publication of information about a relationship he had conducted. A notable feature of the evidence in support was that it did not include a statement from LNS or from the person with whom he had had the relationship. Instead the material had been collected by LNS’s business associates who purported to relay their views. The business partners’ had their own interests in LNS obtaining the injunction and the Judge was concerned that he could not be satisfied that the evidence adduced was “full and frank” (paras 31, 33).
Tugendhat J held that there was insufficient evidence of a threat to publish photographs and some sensitive information which formed part of the application (para 69). His judgment is therefore addressed to the threatened publication of the fact of the relationship and some unspecified details about it. He refused to grant the injunction, basing his decision on a number of alternative grounds in defamation and privacy.
Defamation not privacy
Tugendhat J found that LNS was seeking to protect his reputation, rather than his private life. Therefore, as it was likely that a publisher would advance a defence (were the claim in defamation), the rule in Bonnard v Perryman precluded granting an injunction (paras 95, 123). The evidence in support of the application (both in terms of what it said and what it omitted) showed that LNS’s real concern was that if the relationship were made public, it would have a detrimental effect on his lucrative sponsorship deals. The Judge also noted that the evidence did not refer to any distress being suffered by LNS (para 95).
In reaching the above decision, Tugendhat J gave the answer to the question which he had raised in RST v UVW [2009] EWHC 2448, namely how the court should approach an application for an injunction which was framed in privacy but was aimed at protecting reputation. He decided that however a claimant may frame his case, it is ultimately for the court to decide “whether free speech prevails” (para 88). In other words, it is open to the court to look at the substance of a claim, and not be hidebound by the cause of action which the claimant elected. At paragraph 96, the Judge considered the types of privacy claims which arise and noted that the overlap of defamation and privacy will only arise in some actions, namely those where the information is about voluntary, discreditable (but not unlawful) activity.
Refusal on alternative grounds in privacy
Tugendhat J held that, alternatively, he would have refused the application on the grounds that LNS had failed to establish that he was “likely” to succeed at trial (Human Rights Act 1998, section 12(3)). That is of interest because LNS’s relationship is the type of information which is generally acknowledged as prima facie private and likely, as the Judge recognised at para 13, to be protected by way of injunctions.
Tugendhat J held that there was an arguable public interest defence (para 8). Because the application was without notice, he had been deprived of submissions from the media on the public interest and the “social utility” (or otherwise) of the information concerned (para 102), he could therefore not be satisfied that LNS was likely to succeed at trial because the public interest defence might prevail (para 125). The Judge rejected the argument that in order to permit one person to disclose information about another’s private life, the information must relate to unlawful activity as inapt in a plural society (paras 99-104).
The Judge held that he was also constrained from making any findings about the public interest, when it remained undecided what role (if any) is played by the reasonable belief of the person threatening to publish (paras 71-73) (and no such person had been represented). Tugendhat J indicated that there are good arguments that ‘reasonable belief’ is a factor, because it is already a consideration for the test of public interest within the Data Protection Act 1998 which might apply to the same set of circumstances.
Furthermore, Tugendhat J stated that he would have refused the application on the grounds that it would amount to a disproportionate interference with the competing Convention rights. In applying the “ultimate balancing test” to the facts before him, he considered that the dissemination of the information about LNS’s relationship to the public was unlikely to be sufficiently intrusive to justify the restraint, bearing in mind LNS’s “robust personality” and the fact that the information was already circulating quite widely within LNS’s circle and sport.
Super-injunctions
LNS had sought an order prohibiting publication of the existence of the proceedings. On this topical issue, Tugendhat J observed that an order prohibiting the reporting of the fact that an injunction has been obtained is usually sought to prevent a respondent acting in such a way as to undermine the injunction prior to it being served on him. Such prohibitions should only run until service. Where an applicant seeks an order restraining publication of the fact of proceedings for a longer period of time, then he must adduce evidence setting out the need for such an order (para 137-142).
Procedural shortfalls
The judgment is also noteworthy for Tugendhat J’s criticism of procedural shortcomings in LNS’s application. Going back to first principles, he emphasised the principle of open justice and the requirement for all applicants seeking derogations from it (in whatever form) to justify the derogation. He noted that this requirement is not lessened merely because of the inherent difficulties in obtaining a remedy for misuse of private information while also complying with the needs of open justice, after all Article 8 has no pre-eminence over Article 10 or other competing Convention rights. The numerous derogations sought by LNS would have had the effect (if LNS had been successful) of placing the burden on any respondent or interested third party to take the financial risk of making an application to vary the injunction, not even knowing if it would be able to have access to the materials relied upon by LNS and this was not acceptable (para 19).
Citing X v Persons Unknown [2006] EWHC 2873, Tugendhat J emphasised the need (ordinarily) for applicants intending to serve an injunction on a media organisation to give it prior notice of the hearing, so that it may be represented. While there may be reasons not to alert an individual respondent to an application for an injunction if there were reasons to suppose that he or she may seek to defeat the application by rushing to disclose the information concerned, that was not a concern with national media organisations (para 109).
Kate Wilson
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