Finding for D, Tugendhat J held that the order was to be continued with the variation in the form sought by D and without C’s proposed conditions. He began by identifying the Convention rights which might arise for consideration in the case. These were C’s privacy rights under Article 8, and, for D, the rights to freedom of expression under Article 10 and of access to the Employment Tribunal under Article 6. Noting the approach in Murray v Express Newspapers Plc  Ch 481 to deciding whether the publication of information which is said to be private should be permitted, the Judge concluded as follows:
(a) Whilst there was no doubt that a personal normally had a reasonable expectation of privacy in respect of sexual activity, that could not be the case where the activity was abusive or amounted to sexual harassment. The fact that the activity occurred in a relationship between employees was relevant in deciding what a reasonable person of ordinary sensibilities would have felt if placed in the same position as C, as the place of activity was one of the circumstances specifically mentioned in Murray.
(b) It was also relevant that C was a more senior employee than D, as a person of ordinary sensibilities in such a position would be expected to appreciate the possibility that information that might otherwise be private would be disclosed to those responsible for determining work place disputes, including an Employment Tribunal.
(c) As regards the concerns expressed by C for his family, the Judge noted the absence of any direct evidence from C’s wife and declined to accept at face value C’s claim to speak for her. With regard to the position of the children, no submissions were put before the court on their behalf.
(d) It was accepted that persons involved in legal proceedings might attempt to abuse the process of the court by seeking to publicise under the protection of absolute privilege allegations for which they would not have such protection elsewhere. To seek to put before a tribunal material known to be irrelevant which interfered with the rights of others would be an abuse. The risk of this happening would normally be much reduced where the parties were legally represented. C’s allegation of blackmail, if well founded, might have given some basis for finding that there was a significant risk of abuse. However, D was advised by solicitors, and had expressed regret for the occasion on which he made a threat to disclose allegations to the public. Moreover, C was no longer seeking to describe D’s conduct as blackmail. There was therefore no basis for the court to apprehend a real risk that D might attempt to abuse the process of the Employment Tribunal.
(e) Where litigation is heard in public, the courts treat the interests of the public in open justice as necessary and proportionate reasons for overriding what would otherwise be the rights of litigants and third parties to confidentiality and privacy.
(f) The conclusions above sufficed to refuse to continue the injunction in the terms ordered by Bean J. However, even if the Judge had been satisfied that there was a real risk that D might disclose to the Employment Tribunal irrelevant material in respect of which C had a reasonable expectation of privacy, he would still have refused an injunction in its present form (ie without the variation in the terms proposed by D) on the ground that it was neither necessary nor proportionate. The Employment Tribunal had its own rules and powers to deal with such a risk, and would be incomparably better placed to decide what was, and what was not, proper to be put before it by D.
(g) The court should be very reluctant to give to a person accused of such serious wrongdoing the opportunity to cause delay to, or place obstructions in the way of, the complainant’s attempts to seek redress for the alleged wrongdoing. There was a high public interest in litigants having their right under Art 6, which was also a right under Art 10, to commence proceedings in a tribunal unfettered by interventions from another person against whom the litigant was making allegations.