Reference:  EWCA Civ 1574
Court: Court of Appeal (Civil Division)
Judge: Waller, Ward and Stanley Burnton LJJ
Date of judgment: 21 Aug 2009
Summary: Privacy – Injunction - Interim injunction - Without notice - Appeal against refusal to grant injunction – Section 12 Human Rights Act 1998 - ECHR, Articles 8, 10
Instructing Solicitors: Schillings for C; D did not appear and was not represented
C, a well-known person, married with children, had an adulterous relationship with D. C claimed that D was now attempting to blackmail him, demanding money under threat that she would otherwise publish in the press and/or tell his wife. C applied, without notice to D, for an interim injunction to restrain D from disclosing information about their relationship, pending trial.
C was not seeking any relief in terms of anonymity as it was intended to disclose his name to the media and the fact that an order had been made were he to be successful in obtaining an interim injunction without notice.
Blair J refused to grant the injunction on two bases:
(1) the application should not have been made without notice;
(2) applying s.12(3) of the Human Rights Act, C was unlikely to succeed at trial and therefore the injunction should not be granted.
(1) Whether, in the circumstances, the fact that the application was made without notice was a legitimate ground for refusing it;
(2) Whether, applying Cream Holdings v Bannerjee, C was likely to succeed at trial
Allowing the appeal and granting the interim injunction sought:
(1) There was a serious risk that if given notice of the application of an injunction, D would have simply gone to the media and either sought to obtain money for publication or simply published. The judge was therefore wrong to find that it was not appropriate to make the application without notice.
(2) There was a sufficient likelihood that C would succeed at trial to justify the injunction sought. Article 8 was engaged: the sexual relationship was private. D’s Art 10 rights of D were also engaged. Aside from the blackmail element, C would have been likely to succeed in respect of publication to the media, but it was doubtful if he would in respect of publication to his wife. However, as there was a blackmail element, it was appropriate to grant a wide injunction for a limited time.
The case is of interest for Waller LJ’s confirmation that the court will distinguish between publication to the media and to interested parties, such as the wife of a man having an affair, and for the impact of evidence of blackmail upon even that level of disclosure (at least at the injunction stage).