Yxb v Tno
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 25 March 2015 |
| Neutral Citation | [2015] EWHC 826 (QB) |
| Docket Number | Case No: HQ15X00823 |
| Court | Queen's Bench Division |
| Date | 25 March 2015 |
[2015] EWHC 826 (QB)
Mr Justice Warby
Case No: HQ15X00823
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett (instructed by Manleys) for the Claimant
Jacob Dean (instructed by Cassell Moore) for the Defendant
Hearing date: 16 March 2015
Introduction
The claimant and the defendant first met on the evening of 15 December 2014, at a Christmas Party at a city centre club. In the early hours of 16 December 2014, during a party at the home of a friend of the claimant known in this case as "Mr X", the defendant performed oral sex on the claimant. They have never met again, but a month later the claimant initiated an exchange of messages between the two, via their mobile phones, in the course of which he wrote to her, and she to him, about having sex together. The claimant sent the defendant explicit images, including photographs of his erect penis, and video of himself masturbating. She also sent him images, but nothing so intimate.
Because the claimant is a Premier League footballer, his sex life is of interest to newspaper readers, and on 13 February 2015 the defendant signed a contract to sell the publishers of The Sun "her full detailed and true story with particular reference to her knowledge and experiences of [the claimant] and all related matters". The agreement provided that she would make available "all photographs, film, documents, names and addresses and other items of evidence which are relevant to his/her account." The newspaper approached the claimant's club ("the Club") and his representatives came to know that publication was intended.
On 19 February 2015, an application was made to Walker J on behalf of the claimant, without notice to the defendant, for an interim order restraining the defendant from disclosing information to the effect that a sex act took place between the two, photographs sent by the claimant, any information to the effect that he sent her naked photographs of himself, and text messages sent by him or any summary of the information contained in such messages. The claimant's case was that disclosure of such information would represent a misuse of private information and, so far as the photos were concerned, infringement of copyright.
The evidence and submissions for the claimant also alleged that in dealings with Mr X, acting on behalf of the claimant, the defendant had sought to blackmail the claimant, demanding £100,000 as the price of her silence. This was the factor said to justify an application without notice, and was also relied on in support of the injunction, and the anonymity order. Walker J granted the interim non-disclosure order, an order anonymising both parties, and a reporting restriction order prohibiting the identification of either party or Mr X.
On 22 February 2015 an article was published on the front page of The Sun on Sunday, under the headline "Prem star's £100k sex blackmail". The story related to the claimant and the defendant. It described them as having had a sexual encounter, quoting a source as saying (inaccurately, by all accounts) that "the pair did everything that a man & woman can do together." It reported that the defendant had attempted to blackmail the claimant. But neither the identities of the parties, nor the images, nor the content of the messages between the claimant and defendant, were made public in that article. It is not suggested that the appearance of this story represented or flowed from a breach of the injunction. Its publication is accepted to have been consistent with the Judge's order.
The claimant's application to continue until trial the orders made by Walker J came before me on 26 February 2015. On the application of the claimant, unopposed by the defendant, I adjourned the application until this hearing, and continued the orders meanwhile. This is therefore the return date of the claimant's application for orders maintaining anonymity and restraining disclosure and until after judgment in the action. The order sought is in a slightly expanded form, to cover the video material. Between 26 February and this hearing the claimant has served Particulars of Claim, the defendant has filed evidence, and the claimant has filed evidence in reply.
The issues
Four issues now arise:-
i) Should the orders of 19 and 26 February 2015 be discharged for material non-disclosure on the part of the claimant? The defendant asserts that the factual picture was not fairly presented. In particular, she says that the sex act between them was not as private as made out, that the accusation of blackmail was false to the knowledge of Mr X, and that Mr X failed, deliberately it is alleged, to disclose a key message sent to him by the defendant, which is inconsistent with the charge of blackmail.
ii) Should there be any privacy injunction for the future? The defendant does not oppose the continuation of an injunction to restrain publication of the photos, or its extension to protect the video material, but she maintains that the court should refuse any injunction for the future. She relies on the claimant's material non-disclosure and what she submits is the weakness of his claim generally. In relation to this last point she highlights the dearth of evidence that the claimant would be distressed by any disclosure.
iii) If the information remains subject to an injunction and anonymity for the claimant, the defendant nevertheless seeks to lift the anonymity order so far as she is concerned, to "out" herself as TNO in order to tell her side of the story. She maintains that there neither was nor is any justification for anonymising her.
iv) The defendant also seeks, if restrained from disclosing information to the public, to be free nonetheless to disclose it to friends and family. A restraint on communication to that extent is unreasonable and unwarranted, she submits.
The hearing was conducted in public without identifying either party by name or otherwise. The orders, including the reporting restriction, granted by Walker J have remained in place pending this judgment, with an unopposed extension to prohibit publication of the video material.
The legal context
The threshold requirement of likely success
The test that has to be satisfied by the claimant on any application for an injunction to restrain the exercise of free speech before a trial is that he is "likely to establish that publication should not be allowed": Human Rights Act 1998 ( HRA), s 12(3). This normally means that success at trial must be shown to be more likely than not: Cream Holdings v Banerjee [2004] UKHL 44, [2005] AC 253. In some cases it may be just to grant an injunction where the prospects of success fall short of this standard; for instance, if the damage that might be caused is particularly severe, the court will be justified in granting an injunction if the prospects are sufficiently favourable to justify an order in the particular circumstances of the case: see Cream at [19], [22]. But ordinarily a claimant must show that he will probably succeed at trial, and the court will have to form a provisional view of the merits on the evidence available to it at the time of the interim application.
Misuse of private information
In order to succeed at trial in a claim for misuse of private information a claimant must establish first of all that he has a reasonable expectation of privacy in respect of the information at issue. The test is an objective one, which depends on all the circumstances. These include "the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher": Murray v Express Newspapers [2008] EWCA Civ 446, [2009] Ch 481 [36]. Some general rules can be found in the authorities, to which I will return, but the determination is always highly fact-sensitive.
If a reasonable expectation of privacy is established, the court must then consider how the balance between privacy and freedom of expression should be struck in the particular circumstances of the case, taking into account the four principles identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 [17]:
"'First, neither article [ 8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.'"
In applying the ultimate balancing test other rights may fall to be taken into account, including any relevant privacy rights of third parties, and the right of the defendant to speak to others about their own life: see A v B plc [2002] EWCA Civ 337, [2003] QB 195 [11xi)]. The right to speak of one's own life is also an aspect of the autonomy protected by Article 8: Re Angela Roddy [2003] EWHC 2927 (Fam), [2004] EMLR 8. The process of striking the balance involves consideration of whether it is likely that the court at a trial would find an injunction to be a remedy which it is necessary and proportionate to grant, in order to protect the claimant's reasonable expectation of privacy.
Because the ultimate balancing test involves consideration of both sides of the case, and often enough other rights and...
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