AMV v TDX

Earlier this morning, I granted the Claimant an interim injunction restraining the publication by the Defendant of certain private and confidential information identified in the Order (the “Confidential Information”), together with other ancillary orders.

The application was made without notice to the Defendant and the hearing took place in private. Given the nature of the Confidential Information I was satisfied for the purposes of section 12(2)(b) of the Human Rights Act 1998 that there were compelling reasons for not giving notice and for holding the hearing in private. While derogations from the principle of open justice can only be justified in exceptional circumstances, I was satisfied that this was an exceptional case where publicity would defeat entire object of the application and that there was sufficient evidence to suggest that the Defendant might take steps to disclose the Confidential Information if forewarned of the application. If they did, then the consequences for not only the Claimant, but also their immediate family would be extremely serious and potentially damaging. For the same reasons, I considered it necessary in the interests of justice also to grant the Claimant’s application for anonymisation.

Before making these orders, I considered whether any less draconian restrictions would provide the Claimant with sufficient protection. However, neither a private hearing without anonymisation, nor anonymisation without a private hearing, would necessarily prevent identification of the Claimant. Either could lead to disclosure of the very information which this application is designed to protect. Accordingly I was not satisfied that anything less would suffice and that it was necessary in the interests of justice for these steps to be taken. However, these are matters which can be further reviewed on the return date.

The Claimant’s witness statement and the documents exhibited, amply demonstrate that the information was by its nature confidential and that it was imparted to the Defendant expressly on the basis that it should be kept private. In all the circumstances, the Defendant ought reasonably to have known or appreciated that it was to be regarded as private and confidential. The Claimant had a reasonable expectation of privacy in that information and there is no public interest in its disclosure. I therefore consider that the Claimant is likely to establish that publication of the Confidential Information should not be allowed within the meaning of section 12(3) of the 1998 Act.

So far as concerns the balance of convenience, I have anxiously considered whether the threats of disclosure on which the Claimant relies have sufficient substance to warrant the grant of interim relief or whether they are to be regarded as no more than empty words uttered in anger and frustration the context of a clearly stormy relationship without any real intention to follow through on them. There is also an argument to be had as to whether (as is alleged) they amount to blackmail properly so called. Plainly these are not issues which I can determine on an interim hearing. However, the fact remains that the Claimant is likely to establish that (i) the Defendant knows that the information is confidential (ii) they have no right to disclose it and there is no public interest in disclosure. The Defendant has sent messages which on their face intimate a threat of disclosure and if those threats are real, then the damage caused to the Claimant and the well-being of their family by disclosure would be disproportionate in comparison to a short-term restriction on the Defendant disclosing information which they do not have any obvious right to disclose.

Notwithstanding the Defendant’s own rights under Articles 8 and 10, I therefore conclude that the balance of convenience at least at this stage falls in favour of the Claimant, although the position can and will of course be reviewed on the return date.