Poi v "Lina"

On 26 January 2011 I continued the injunction granted by Mr Justice Tugendhat on 12 January 2011 to restrain publication of private information, and other related orders until trial or further order.

The information the subject of the order was identified in the order as follows:

“(a)

Any information concerning the subject matter of these proceedings or any information identifying or tending to identify the Applicant save for that contained in this Order and in any public judgment of the court given in this action.

(b)

All or any of the private photographs (‘the Photographs’) or video (‘the Video’) of the Applicant or any information as to their contents or circumstances in which they were taken, as more particularly described in Confidential Schedule A at the end of this Order (‘the Confidential Information’); and

… PROVIDED THAT nothing in this paragraph of this Order shall prevent the Respondent from publishing, communicating or disclosing any material that before service of this Order was already in, or that thereafter comes into, the public domain as the result of national media publication (other than as a result of breach of this Order or a breach of confidence or privacy).”

The Respondent was not present or represented at the hearing before me. However the injunction granted by Mr Justice Tugendhat was served on the Respondent by e-mail at 19.10 on 12 January 2011. The Respondent was informed that an application may be made to the court to vary or discharge the Order. The Respondent was also informed that the Order provided for a Return Date on 26 January 2011 when the Claimant would be returning to court to seek the continuation of the Order. The Respondent was told that the Respondent was free to attend this hearing and make representations should the Respondent so wish. The Claim Form was subsequently served on the Respondent on 13 January 2011. No response has been received from the Respondent.

On 25 January 2011 the Applicant’s solicitors e-mailed the Respondent informing the Respondent that they would be serving a copy of the application to continue the injunction that afternoon. Immediately afterwards, the Claimant’s solicitors received a failure notice informing them that the message had not been delivered to the address to which it was sent. It would appear therefore that the e-mail account for the address to which the injunction and related documents and the Claim Form was served may have been closed down by the Respondent at some point following service of the Injunction and Claim Form on 12 and 13 January 2011 respectively.

In JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB) Tugendhat J set out at para 36 the principles that apply when the issue of anonymity is being considered. In the present case the material principles are as follows:

“(1)

As a general rule, the names of the parties to an action should be included in orders and judgments of the court…

(2)

There is no general exception for cases where private matters are in issue…

(3)

An order for anonymity is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4)

Where the court is asked to restrain the publication of the names of the parties and the subject matter of the claim [on the ground that restraint is necessary under Art.8] the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party to justify any resulting curtailment of his right and his family’s right to respect for their private and family life…

(6)

An anonymity order made by a Judge, on the first hearing of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date…”

I have applied those principles and reviewed the anonymity order made by Tugendhat J on 12 January 2011.

In my judgment the Photographs and/or the Video were taken in circumstances where the Applicant has a strong basis for submitting that he has a reasonable expectation of privacy. The evidence of the Applicant is that no permission was sought or given either for the taking of the images or the publication of them. In my view the Applicant also has a strong basis for submitting that the Respondent is attempting to blackmail him. I am satisfied in accordance with the Human Rights Act 1998 s.12(3) that the Applicant is likely to establish that publication should not be allowed. I have had regard to the matters set out in s.12(4). On the evidence before me there is no real likelihood of the Respondent being able to succeed in, or even to advance, an argument that it is or would be in the public interest for the material to be published.

In my view the position with regard to the Art.8 rights of the Applicant and any rights of the Respondent under Art.10 has not changed since the hearing before Tugendhat J.

I bear in mind the observations of Tugendhat J in AMM v HXW [2010] EWHC 2457 (QB) which are relevant on the facts to the present case. As the judge said:

“38.

The fact that a person is making unwarranted demands with threats to disclose information does not of itself mean that that person has no right to freedom of expression. … But if a person is making unwarranted demands with threats to publish, that is a factor in deciding whether that person has any Art.10 rights, and, if so, then the weight to be accorded to them in balancing them with the applicant’s Art.8 rights.

39.

In my judgment, the need to have regard to the Art.8 rights of the Claimant, and to promote the public interest in preventing and punishing blackmail are both factors which weigh strongly in favour of the grant of an anonymity order. There is a strong case that [the] Defendant has no right to publish the information which she seeks to publish about a relationship with her former husband. On this view her Art.10 rights are not strong. And as an alleged blackmailer, her Art.10 rights are much weaker. …”

There is plainly a strong argument that the Art.8 rights of the Applicant are engaged; on the other hand the argument in support of any rights of the Respondent under Art.10 is weak. The balance, in my view, falls, as before, to be struck in favour of the protection of the Art.8 rights of the Applicant. It is strongly arguable that the interference with the Claimant’s right to respect for privacy and family life under Art.8(1) cannot be justified under Art.8(2).

In the circumstances of this case an order for anonymity is, in my judgment, necessary in the interests of justice. As Tugendhat J said at para 8 when giving his reasons for granting an injunction on 12 January 2011,

“The evidence of attempted blackmail includes evidence that there is some information about the case that has been put in the public domain. If the name of the Applicant were to be identified, then it is likely that persons who knew, or learned, both that the Applicant had issued these proceedings and what is already in the public domain would be able to deduce information about the contents of the images, or the circumstances in which they were taken, which is private information, and which the Applicant is likely to establish should not be published. It is likely that the policy of the law to protect those alleging they are victims of a blackmailer would be defeated.”

I was satisfied that the hearing of the application before me should take place in private pursuant to CPR39.2(3)(a) and (c) and for the reasons set out in this judgment that the order of Tugendhat J should continue until trial or further order.