E v Channel Four & Anor

Where a vulnerable adult may lack capacity to decide whether private information should be published, the court must first determine capacity, then consider best interests, and only if necessary balance the person’s Article 8 rights against the media’s Article 10 rights. Capacity is issue-specific and the burden lies on the party asserting incapacity. On an interim application under section 12(3) of the Human Rights Act 1998, the applicant must ordinarily show that success at trial is more likely than not, although the court retains flexibility in exceptional circumstances. The court refused an injunction because incapacity and adverse best interests were not likely to be established at trial.

E, a 32-year-old woman with a learning disability and dissociative identity disorder, wished Channel Four to broadcast a documentary about her life. The Official Solicitor, acting as her litigation friend, and St Helens Borough Council sought an interim injunction to restrain the broadcast and publication of a related Sunday Times article. They relied on privacy, confidentiality, welfare and the possible effect of publication on E’s care arrangements and an investigation concerning her care.

The application was made under the court’s inherent jurisdiction in relation to vulnerable adults and engaged Articles 8 and 10 of the Convention. The central issues were whether E lacked capacity to consent to the broadcast, whether non-publication was in her best interests, and whether the statutory threshold for interim restraint was satisfied.

1. Jurisdiction and staged inquiry. The court could exercise its inherent protective jurisdiction only if E lacked capacity to make the relevant decision. If she had capacity, her wishes were determinative and no injunction could be granted on her behalf. If she lacked capacity, the court had to consider her best interests, taking close account of her wishes and feelings. Best interests were not themselves ultimately determinative. Only if non-publication appeared contrary to her best interests would the court balance her Article 8 interests against the defendants’ Article 10 rights.
2. Capacity. Capacity was decision-specific, and the Official Solicitor bore the burden of proving incapacity. Applying the approach in Masterman-Lister v Brutton & Co and Sheffield City Council v E, the relevant question concerned capacity to consent to broadcast of the completed film, not capacity to consent to earlier filming. On the evidence, the Official Solicitor had not shown that it was likely, in the sense ordinarily required by section 12(3) of the Human Rights Act 1998, that incapacity would be established at trial.
3. Best interests. Even if E lacked capacity, the Official Solicitor had not shown that non-publication was likely to be in her best interests. The court considered medical, ethical, social, emotional and welfare factors, including E’s strong and consistent wish for the film to be shown, the distress non-publication would cause, the film’s serious and non-exploitative character, and the limited factual evidence supporting concerns about care funding, staff recruitment and the abuse investigation. The balance at the interim stage favoured broadcast.
4. Interim threshold. Following Cream Holdings Ltd v Banerjee, “likely” normally required prospects of success at trial that were more likely than not, while allowing flexibility where particular circumstances justified a lower threshold. No such circumstances existed here.
5. Result. The application for an interim injunction restraining broadcast and publication was dismissed. The court observed that the Convention balancing exercise would have been difficult, but it did not arise because the applications failed on capacity and best interests.
6. Media consultation. The court rejected the proposed general rule that the media must consult the relevant local authority or Official Solicitor before interviewing or filming a vulnerable adult receiving community care. A different approach might be required where a public authority had assumed formal protective responsibility through proceedings or statutory powers.

The judgment was a first-instance decision of the High Court (Family Division) on an application for interim injunctive relief. The court refused permission to appeal after announcing its decision.