CHS v DNH

This is my extemporary judgment on an application by CHS against DNH, claim number B30MA281. This is an application made without notice by CHS for interim injunctive relief against her boyfriend - or, I suspect, shortly to be former boyfriend - for interim non-disclosure orders as that expression is explained in Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003. The application is made on a without notice basis by Mr Bruce Walker (of counsel), who appears for the claimant. The application is supported by a witness statement of CHS, which is undated, but was apparently made yesterday or today.

Putting the matter as directly as I can, CHS is a person who is said to have a high public profile. She has been engaged in an adulterous relationship with a married man, who is also said to be a very high profile public figure. At the same time, she has been conducting a relationship with the defendant. On Thursday 29^th January, the defendant is said to have gone through private drawers in the claimant’s bedroom whilst she was away from home and to have located a private journal in which she had recorded intimate details of her on-going relationship with the high profile public figure, who has been identified only as “Mr Y.” The information contained in the private journal, which the defendant has read, is said to be confidential. The defendant took photographs of key parts of the journal and challenged the claimant about its existence and contents, which led to a heated argument extending over several hours.

The claimant challenged the defendant about reading and accessing her private journal without her permission, and with the fact that he had continued reading it with the knowledge that it was private property dealing with the claimant’s own private feelings. At the end of that argument, the defendant is said to have deleted the photographs of the journal which he had taken from his phone in front of the claimant, and he assured her that he had deleted them all. At that stage the relationship continued.

On Sunday 1^st March, the claimant left the defendant’s home, leaving behind her iPad. Upon her return to the defendant’s house, it became apparent that the defendant had accessed the claimant’s iPhone contacts. That must have been done through the iPad, which the claimant had left at the defendant’s house. In doing so, the defendant found a telephone number for Mr Y. The defendant is said to have deleted that contact from the claimant’s iPhone via the iPad.

Later that same evening, the defendant challenged the claimant about having saved Mr Y’s telephone number, despite the fact that she had deleted it some weeks ago in front of the defendant. The defendant said, “I want to expose you both for what you have done. I have got enough evidence to do that.” The claimant says that the only way the defendant could have known that the number was on the claimant’s iPhone was by searching her iPad. There was another heated argument, and the claimant ultimately left the defendant’s home at about 1:30 on the morning of Monday 2^nd March.

Although the defendant had assured the claimant on 30^th January that he had deleted every photograph of the claimant’s journal, she now doubts that to be the case as the defendant had made a clear threat to the claimant on Sunday 1^st March that he could expose the extra-marital relationship and damage both herself and Mr Y. The defendant is said to be aware of Mr Y’s identity and therefore his high public profile. It is said that the potential damage which could be done, both to the claimant, as a public figure of trust, and to Mr Y, as a public figure who is married to someone else, is enormous. The claimant believes that if the documents stolen from her were shared in the public domain, both she and Mr Y would be irreparably damaged, and there would be enormous financial repercussions for both of them. Mr Y is said to be unaware of the present situation.

The reason the claimant makes this application without giving any notice to the defendant is said to be because she fears that it would tip him off, and that he would publish the claimant’s private information before she could prevent him by an order of the court. His threat to publish is said to be vindictive, which would provide equal motive to him to publish quickly if he heard of the application.

Mr Walker opened the hearing by inviting the court to sit in private. I acceded to that application on the basis that the requirements in CPR 39.2 (3) (a), (c), and (g) were satisfied. I agreed to sit in private because (a) publicity would defeat the hearing, (c) it involves confidential information and publicity would damage that confidentiality, and (g) the court considers a private hearing to be necessary in the interests of justice.

During the course of the hearing, I was taken through Mr Walker’s detailed written skeleton argument. The nature of the relief sought is a non-disclosure order. As a result, Articles 8 (the right to respect for private and family life) and 10 (the right to freedom of expression) of the European Convention on Human Rights and Fundamental Freedoms are engaged. Mr Walker has taken me to guidance on the interplay between those competing rights, as set out in the decision of the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2003] UKHL 47, [2005] 1 AC 593 (para 17). In summary, what is said is that neither article has, as such, precedence over the other. Secondly, where the values under the two articles are in conflict, intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with, or restricting, each right must be taken into account. Finally, the proportionality test must be applied to each. That involves an ultimate balancing test.

I was next taken to s.12 of the Human Rights Act. That section is engaged:

“If the court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

By subsection 12 (2):

“If the respondent is neither present nor represented, no such relief is to be granted unless the court is satisfied that there are compelling reasons why the respondent should not be notified.”

By subsection (3):

“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”

By subsection (4):

“The court is required to have particular regard to the importance of the Convention right to freedom of expression.”

Guidance as to the application of s.12 is to be found in the decision of the House of Lords in Cream Holdings Limited v Banerjee [2004] UKHL 44, [2005] 1 AC 253. Section 12 is intended to buttress the protection afforded to freedom of speech at the interim stage by setting a higher threshold for the grant of interim injunctions than the previous test of a real prospect of success at trial in the claim for a permanent injunction. The effect of s.12 (3) is that the court should not make an interim restraint order unless satisfied that the applicant’s prospects of success at trial are sufficiently favourable to justify the order being made in the light of all the circumstances of the case. That may require the applicant to satisfy the court that he will probably succeed at the trial, although there could be cases where it is necessary for the court to depart from that general approach and a lesser degree of likelihood would suffice as a pre-requisite.

In accordance with guidance to be found in the judgment of Mrs Justice Sharp in the case of DFT v TFD [2010] EWHC 2335 (QB), the approach to granting an order is a two-stage one. First, the court must determine that the information is private. Secondly, it must then carry out the exercise of balancing the competing rights under Articles 8 and 10. I am satisfied in the present case that the information in question is clearly private and personal information in relation to which the claimant had a reasonable expectation of privacy and confidentiality. That is evidenced by the fact that the information was deleted by the defendant himself when he was asked to do so. In conducting the balancing exercise, I bear in mind that the information which may be published by the defendant is only that which is private and personal to the claimant. It may be of interest to the public; but the defendant has, without her permission, wrongly accessed the claimant’s personal and private information. He has no right to retain it or use it, still less a right to publicise it; but he has threatened to do so. I am satisfied on the evidence presently before the court that the claimant’s Article 8 right to respect for her private life clearly weighs more heavily in the balance than the defendant’s desire to exercise any Article 10 freedom of expression in publishing that private life. That is because the reasons for publication are, on the evidence, motivated by malice entertained by the defendant towards the claimant.

I am satisfied therefore that it is appropriate to make an injunction in the terms of paragraph 6 of the draft minute of order. I am satisfied also that there are compelling reasons not to notify the defendant that the application is being made in the light of his threat to publish the claimant’s private information: If told of this application, the defendant could publish before the application could be heard, rendering the application otiose and worthless.

I am satisfied at this stage, and on the evidence presently before the court, that anonymisation, together with ancillary supportive orders, is appropriate to ensure that the substantive order is effective. I have been taken to guidance in the case of H v News Group Newspapers Limited [2011] EWCA Civ 42, [2011] 1 WLR 1645. I am satisfied at this stage, first, that the facts and circumstances of the case are sufficiently strong to justify an encroachment upon the open justice rule by restricting the extent to which the proceedings can be reported. I am satisfied that restrictions on publication can be fashioned by the way in which I have phrased this judgment, in such a way that minimises the extent of the restrictions. This judgment is being delivered in a form which is capable of being made public as a result of the anonymity and other orders the court is making. If the names of the parties were to be inserted in the order, the purpose of the injunction would be negated since the injunction order is clearly about the exposure of private matters. Speculation would inevitably follow if any of the relevant parties were to be identified. The application papers expose the nature of the application and therefore it is appropriate to restrict access to such documents. If the documents were not restricted in that way, what has been described as “jigsaw identification” might well occur, negating anonymisation, as has occurred in newspapers in the past.

I am satisfied that appropriate protections have been inserted in the order, designed to ensure that the defendant can properly defend himself. I am satisfied that the relief included within the order is appropriate, at least at this without notice and early stage of the proceedings. I am satisfied that there should be protection against on-going disclosure to the extent set out in the draft.

Therefore, for those reasons I will make an order in the terms of the draft that has been put before me, which complies with the standard form of order annexed to the practice guidance. There will be an early return date before the Vice Chancellor at 9:30 next Tuesday morning, 10^th March. Costs will, in the usual way on a without notice application, be reserved.