Reference:  EWHC 2448 (QB)
Court: Queen’s Bench Division
Judge: Tugendhat J
Date of judgment: 11 Sep 2009
Summary: Article 10 - Freedom of expression - Article 8 - Respect for privacy - s.12 Human Rights Act 1998 - Privacy – Confidence – Interim injunction
Instructing Solicitors: Carter-Ruck for C; the D did not appear and was not represented.
About ten years ago the applicant, C, who had some public reputation, had two or three sexual encounters for payment. The encounters took place at C’s home. Two years after the encounters C and the person with whom the encounters took place executed a written agreement which included a provision protecting the confidence of the encounters and ensuring they would not be disclosed. On 14 August 2009 an email was received by C’s agent with the suggestion that the writer had a story about the encounters. It was unknown whether the writer was in fact the person with whom the encounters occurred.
Whether an interim injunction should be granted without notice to restrain any information (1) concerning or relating to the relationship between C and the co-signatory of the executed agreement; and (2) the fact or details or terms or purpose or any other matter concerning the agreement or negotiations between C and the co-signatory relating to maintaining the privacy of their relationship and/or relating to any payment by C to her or her business.
Granting the injunction:
(1) The order was made without notice pursuant to s 12(2)(b) as there was a real prospect that that if notice were given, the defendant may take steps to defeat the purpose of the injunction.
(2) A v B plc and Theakston v MGN were distinguished as (i) the encounters had taken place at C’s home and (ii) the written agreement.
The Judge concluded his judgment with these words: “At some point, the court will have to grapple again with the question of where the principle of Bonnard v Perryman applies, and where it does not, when an application is made on the basis of privacy, but it is an application to restrain publication of material which is arguably defamatory. The court will have to decide how the rule in Bonnard v Perryman is to be applied in the light of such authorities as are then available as to the status of reputation as an Article 8 right and, if it is an Article 8 right, how the exercise of the ultimate balancing test referred to in Re S is to be applied on an interlocutory application. Whether that was this case or not remains to be seen.”