Asg v Gsa

(As Approved)

Lord Justice Waller:

1. This is an appeal from a decision of Blair J who refused to grant an injunction on a without notice application restraining the disclosure of certain information. The appeal has been held in private for reasons which are or will become obvious, that is to say, unless the proceedings are held in private the very remedy which the appellant is seeking will be denied him. For the same reason, the least said about the facts in this judgment the better. Suffice it to say, a well known person, married with children, had an adulterous relationship with a girl that he met at a night club. He says that she is now attempting to blackmail him, demanding money under threat that she will otherwise publish in the press and/or tell his wife.

2. Blair J refused a without notice injunction on two bases: first, that the claim should not have come to the court without giving notice to the defendant girl; second, he expressed the view, applying section 12(3) of the Human Rights Act, that the claimant was unlikely to succeed at trial and therefore the injunction should not be granted.

3. As regards the point about the application being made without notice, it seems to me that if the allegation of blackmail is established, it would also be established that there was a serious risk that if given notice of the application of an injunction, the girl would have simply gone to the media and either sought to obtain money for publication or simply published. I would therefore respectfully disagree with the judge that it was not appropriate to bring this without notice application.

4. As regards the chances of success at the trial, I accept that section 12(3) of the Human Rights Act does require the court to look ahead and only grant an injunction at an interlocutory stage if the claimant is likely to succeed at trial. But I would also say that there will be cases where it may be necessary to grant an injunction ex parte to hold the ring until a proper inter partes hearing can be held and in which it can be finally explored as to whether the claimant will succeed at trial. In such cases, of course, the claimant must show even at the ex parte stage a sufficient likelihood that he will succeed at the inter partes hearing, but a more flexible approach is appropriate. Lord Nicholls put the matter in this way in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at paragraph 22:

“Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”

5. The question I would therefore pose is: is there a sufficient degree of likelihood that the claimant will succeed at trial to justify an ex parte injunction for a short period pending an inter partes hearing? As Browne v Associated Newspapers [2007] EWHC 202 and indeed other cases show, the court must first consider whether this is a case in which Article 8 is engaged. It must then consider whether Article 10 is engaged. If both are engaged, the court must then make an assessment of whether there is a likelihood at trial that, having regard to the claimant's Article 8 rights, the publication sought by the defendant will be restrained.

6. It seems to me that the claimant is likely to establish that his Article 8 rights are engaged. The sexual relationship with the girl was private as between them. The cases indicate that the fact that it was adulterous will not affect the conclusion that Article 8 is engaged. In CC v AB [2007] EMLR 11, a case where the cuckolded husband was seeking to publish details of a relationship between his wife and the other man, it was argued that an adulterer simply had no rights under Article 8 and Eady J said this at paragraphs 24 and 25:

“24. The other proposition...