Hxz v Nmx

Hearing date: 13.3.2025

APPROVED JUDGMENT

Judgment approved by the Court for handing down. This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be at 2.00 pm on 21.3.2025

The Parties

The Claimant is a dual nationality businessman and a widower.

The Defendant is a woman with a large following on a particular social media platform.

Bundles

For the hearing I was provided with a hearing bundle, an authorities bundle and a skeleton argument.

Summary

I was sitting as the urgent applications judge when this application started at 4.30 pm on 13.3.2025. The Claimant sought an ex-parte interim injunction to prohibit the Defendant from publishing, inter alia, naked photos of him on the internet and sending them to his children and business colleagues. I granted a slimmed down version of the requested injunction and the order was made at around 7.30 pm to be served as soon as possible. I said I would give my reasons later. I do so now.

The Issues

The following issues arose in the application:

5.1 Whether anonymity was appropriate and/or a hearing in private.

5.2 Whether an exparte application was appropriate.

5.3 The cause of action.

5.4 The threshold for interim injunctions concerning private information.

5.5 The threshold for an anti-harassment injunction.

5.6 The potential defences.

The Pleadings and chronology of the action

The Claim Form was issued on 12.3.2025. The Claimant sought damages and an injunction asserting that the Defendant had misused his confidential private information and had threatened to do so again in future and seeking protection from harassment. No particulars of claim have been provided yet.

The lay witness evidence

The Claimant relied on the following witnesses:

7.1 His own non-confidential witness statement sworn on 12.3.2025.

7.2 His confidential witness statement sworn on 12.3.2025.

7.3 A witness statement from Talita Villars (the Claimant's solicitor) sworn on 12.3.2025.

Exparte hearings, hearings in private and anonymity

In Armstrong Watson v PUs [2023] 4 WLR 41, ( Armstrong) I set out the law and procedure in relation to exparte applications and hearings in private in paragraphs 11–19. I will not repeat them here save to summarise that I take into account the following: CPR rs. 25.3(1)-(3); 39.2; CPR PD25A (1) – (5); the Practice Guidance (Interim nondisclosure Orders) [2012] 1 WLR 1003; S.11 of the Contempt of Court Act 1981 and S.12 of the Human Rights Act 1998. In similar alleged blackmail cases exparte applications have been allowed by the Courts, see: PML v PUs [2018] EWHC 838 at para. 5; Ince Group v PUs [2022] EWHC 808 at para. 4 and Armstrong.

I consider that there are good and compelling reasons under CPR r.25.3 (1) why notice to the Defendant was not required for this urgent application. As I will set out below, the Defendant had been repeatedly demanding increasingly larger sums of money (in writing) under the threats, (the latest of which was to publish on 14.3.2025, so tomorrow), to disclose the Claimant's private, personal and confidential information, including naked photos of him, to his children, work colleagues and the world via social media and traditional media. The Defendant had already made partial disclosures of personal and confidential information and allegations about various diseases and sexual matters to the Claimant's work colleagues and some media organisations, without his consent, under written threats to: pay up or suffer further public allegations and disclosures. In my judgment, in this application, the exparte application was necessary to prevent tipping off the Defendant, who may then have published before any injunction could be obtained. Once the injunction is served then the injunction and contempt proceedings should protect the Claimant. Disclosure of the Claimant's name (and/or the Defendant's name) would defeat the purpose of the injunction and the claim so they shall remain anonymous. However, the reasoning and substance of the case will be handed down publicly (this is it) so holding the hearing in private would not have achieved much if anything, so long as counsel and myself were careful as to what was said during the hearing and we were.

I did not permit the request to hold the hearing in private. I considered that an anonymity order would be sufficient to protect the Claimant's private information. This was because some information had already been publicly disseminated by the Defendant without the Claimant's consent and because I consider that the open justice principle is crucial in such cases, to ensure that the public are aware of the alleged inappropriate behaviours, by the Defendant (and in some cases the Claimant), and aware of how the Courts may deal with them. I took into account the Practice Guidance (Interim Nondisclosure Orders) [2012] 1 WLR 1003, at paras 9–15:

“ Open Justice

9. Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders, are public: see Article 6(1) of the Convention, CPR 39.2 and Scott v Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (17056/06) [2009] ECHR 1571 at [75]ff; Ntuli v Donald [2010] EWCA Civ 1276 ( Ntuli) at [50].

10. Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R v Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] Q.B. 227 at 235; Nutuli at [52] – [53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.

11. The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].

12. There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EWCA Civ 409 at [50] – [54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent.

13. The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477; Lord Browne of Madingley v Associated Newspapers Ltd [2008] 1 QB 103 at [2] – [3]; Secretary of State for Home Department v AP (No2) [2010] 1 WLR 1652 at [7]; Gray v UVW [2010] EWHC 2367 at [6] – [8]; and JIH v News Group Newspapers [2011] EWCA Civ 42 ( JIH) at [21].

14. When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of Article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their Article 8 Convention right is entitled. The proper approach is set out in JIH.

15. It will only be in the rarest cases that an interim non-disclosure order containing a prohibition on reporting the fact of proceedings (a super-injunction) will be justified on grounds of strict necessity, i.e., anti-tipping-off situations, where short-term secrecy is required to ensure the applicant can notify the respondent that the order is made: DFT v TFD [2010] EWHC 2335 ( DFT). It is then only in truly exceptional circumstances that such an order should be granted for a longer period: Terry v Persons Unknown [2010] 1 FCR 659 ( Terry) at [141].”

The anonymity measures I have imposed will no doubt be reviewed on the return date and whether a hearing in private is held then is a matter for the judge hearing the case then. To maintain the privacy of the parties I have generalised certain events and allegations in this public version of the judgment and provided a private version to the parties separately which is confidential and not for publication.

The asserted facts

I have only read the Claimant's evidence. I take into account that the Defendant may deny all or most of what is asserted but is unlikely to deny the content of her own emails and social media postings. The Claimant asserts that he is chairman of a large group of companies which trade worldwide. Some of the businesses are in the UK. He has a home in the UK and in Asia. His wife died some years ago. His children are adults. He asserts that he is a devout Muslim. The Defendant lives in London. They became romantically involved...