Terry (previously ‘LNS’) v Persons Unknown
Reference:  EWHC 119
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 30 Jan 2010
Summary: Interim injunctions - Privacy - Confidence - Articles 6, 8 and 10, ECHR - Human Rights Act, s 12(3) - CPD25PD
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Instructing Solicitors: Schillings for the Applicant
On 22 January 2010 the Applicant, LNS, sought an interim injunction, without notice, seeking to restrain persons unknown from publishing “all or any part of the information or purported information” and documents in four categories: (1) the fact of a specified personal relationship between LNS and another named person (“the Relationship”); (2) details of that relationship including certain specific consequences of it; (3) information leading to the identification of LNS or the other person; and (4) any photographs evidencing or relating to the fact or details of these matters. The only evidence of a threat to publish was that relating to category (1). The remaining evidence of a threat was largely based on inference and was provided not by the Applicant or the other person but rather the Applicant’s business partners. Part of the evidence also included an interview which LNS gave to a national newspaper in which statements were made about other relationships of his.
Whether the injunction sought should be granted
Refusing the application:
(1) While there was a threat to publish information about the fact of the Relationship the Applicant had failed to prove that the Applicant was likely to succeed on the point within the meaning of s.12(3) HRA. This was in part because of the contents of a previous interview given to a national newspaper and secondly on account of an “uncertainty in the law of misuse of private information”, namely, the extent to which the belief of a person threatening to make a publication is relevant on the issue of public interest;
(2) Notice had not been given to any newspaper when it should have been.
(3)The nub of the applicant’s complaint was to protect reputation, in particular with sponsors, and as such the rule in Bonnard v Perryman precluded the grant of an injunction, and in any event damages would be an adequate remedy;
(4) There was insufficient evidence of a threat to publish photographs or sensitive details about the Relationship.
This decision is a solemn reminder of the evidence that ought to be obtained in order to apply for an interim injunction and the form such evidence should take. It also emphasises the importance of giving notice to potential respondents so that the judge may be able to make an informed decision on the merits of the injunction sought.
The decision also raises a number of unresolved issues in this area, including (i) the extent to which the belief of a person threatening to make a publication is relevant to the issue of public interest and (ii) the relationship between defamation and misuse of private information and the relevance of the distinction to the obtaining of interim injunctions.