Full case report

OPQ v BJM

Reference [2011] EWHC 1059 (QB)
Court Queen's Bench Division

Judge Eady J

Date of Judgment 20 Apr 2011


Summary

Privacy – Human Rights – Injunctive relief – Injunctions – Spycatcher – Contra mundum – third parties – media


Facts

The defendants threatened to sell intimate photographs and other private and confidential information relating to the claimant to Associated Newspapers and through a representative attempted to blackmail the claimant for a large sum of money.  On 29 January 2011 Cox J granted an injunction to restrain publication or use of the information.  On 2 February 2011 Eady J continued the interim injunction on the grounds that the Article 8 rights of the claimant and his family were engaged and there was no public interest in publication.  The interim order was served on the media in accordance with the “Spycatcher” principle. Without a defence, the defendants agreed to provide undertakings in order to settle the action,  including an undertaking not to publish.  The claimant was concerned that once the interim injunction had been replaced by a final undertaking he would lose the protection of the Spycatcher doctrine.


Issue

The Claimant returned to court to seek a contra mundum order to prevent third parties from publishing the private and confidential material once the binding nature of the Spycatcher restraint ceased to have effect.


Held

The Judge held that he had the jurisdiction to grant a permanent injunction contra mundum and made the order.

Such injunctions have traditionally only been granted in a very limited range of circumstances, such as in the case of Venables and Thompson v News Group Newspapers  where Dame Elizabeth Butler-Sloss P held that such an injunction could be granted in support of an action for breach of confidence where there was a real and strong possibility of serious physical harm and death.

Eady J held that the jurisdiction was available “wherever necessary and proportionate, for the protection of Convention rights, whether of children or adults”: Re S (A Child) [2005] 2 AC 593; Re BBC [2010] 1 AC 145 relied on.


Comment

This case illustrates the difficulties faced by privacy claimants who find themselves, on the current understanding of the law, without protection against non-parties publishing private information once the Spycatcher effect ceases to operate, following a permanent injunction being obtained either at trial or by consent.

As Eady J noted in his judgment at [9], the question of whether a final injunction has enforceability against third parties may be determined by the Court of Appeal shortly.

It remains to be seen whether this judgment will introduce a new era where final injunctions are commonly granted contra mundum. Given the exceptional circumstances in which similar orders have historically been granted, it might be expected  that relief of this nature will be confined to circumstances, such as in the present case, where there is a ‘clear risk’ of publication in the media, and the harm that would be caused to the claimant and various family members by publicity about the subject-matter of the dispute would be of an unusually severe kind.


Instructing Solicitors

Carter-Ruck for the Applicant