Reference:  EWCA Civ 1276
Court: Court of Appeal
Judge: Lord Neuberger of Abbotsbury MR, Kay LJ, Sedley LJ
Date of judgment: 16 Nov 2010
Summary: Privacy - Injunctions - Arts 8 and 10 ECHR - Anonymity of parties - Non-disclosure of fact of injunction
David Sherborne (Claimant)
Instructing Solicitors: Schillings for the Claimant; JMW for the Defendant
The Claimant was a member of a boyband in the 1980s. The Claimant had conducted a relationship with the Defendant on and off since 2000. An ex parte on notice application was made for an interim injunction. A superinjunction anonymising the parties and restraining the defendant and third parties from referring to the fact of the injunction was sought and obtained in April 2010. The Judge’s order contained a proviso that the Defendant could discuss information about the Claimant already disclosed to family and close friends with those individuals. The Defendant appealed seeking the discharge of the injunction and, in the alternative complaining that the orders for anonymity and non-disclosure of the fact the application had been obtained were unnecessary. The Judge prohibited publication of “any intimate, personal or sexually explicit details about the relationship …
including any facts of a sexual nature.” Reference to the fact of the relationship was permitted under the Judge’s order. The Defendant contended that publication of non-sexual, non-salacious information about the relationship should not have been restricted and was not core private information. The Claimant cross-appealed that the injunction did not go far enough and ought to include a prohibition on disclosure or communication of the fact of the relationship, subject to the family and close friends proviso.
(1) the superinjunction should be discharged in its entirety
(2) the additional orders to protect privacy should be made
(3) orders for anonymity of the parties and non-disclosure of the application and injunction were necessary
Held, dismissing the cross-appeal and the appeal in part:
(1) The substantive injunction remained in force. The argument that the publication of non-core information ought not to be restricted was rejected. The Judge had rightly considered within the intense focus on competing rights the Claimant’s past admissions and the Defendant’s interest in telling her story but placed a relatively low value on it.
(2) The injunction did not lack clarity. The word “intimate” from the prohibition on disclosure did not have merely sexual connotation but referred to non-sexual but personal information about the relationship that the Claimant was likely to establish was covered by a reasonable expectation of privacy at trial.
(3) There were no grounds for extending the prohibition on disclosure and communication to the fact that a relationship took place. There was no evidence that the relationship was entirely secret. Disclosure of it carried no particularly grave adverse consquence
(4) The orders for non-disclosure of the fact that an injunction had been obtained was unnecessary in view of the terms of the substantive injunction and circumstances of the case. Orders for non-disclosure of the proceedings are essentially case-sensitive. The test is essentially one of necessity.
(5) Anonymity was unnecessary. It would have been possible and appropriate for the Judge to have written a judgment in publishable form. The benefit of not anonymising was removing the risk of misidentification of the parties, although continued anonymity may be justified where identification risked serious consequences for a person’s private life.
Other than where the protagonists have taken measures to conduct a purely clandestine relationship or revelation will lead to particularly grave consequences, disclosure of the mere fact of a relationship ought to be permitted. The super-injunction elements (i.e. non-disclosure of the fact of the injunction and anonymity of the parties) are essentially case-sensitive issues, with an emphasis on ‘necessity’ and the production of published judgments wherever possible. Such orders may be superfluous when the privacy issues are appropriately addressed by the terms of the substantive injunction.