X & Y v Persons Unknown

An interim privacy injunction may be granted against persons unknown where the description identifies the intended defendants with sufficient certainty and the claimant is likely to restrain publication at trial. Article 8 and Article 10 rights must be balanced without automatic priority. The protected information must be defined specifically, preferably in a confidential schedule, and the order should ordinarily contain an express public-domain proviso. Applicants must make full and frank disclosure by taking practical steps to identify material reasonably likely to assist realistic defences, but need not conduct an indiscriminate search of everything published about them. Third parties who will be served should normally receive advance notice and a realistic opportunity to address the order.

The claimants obtained an ex parte interim injunction against persons unknown who were said to have offered information about the status of their marriage to newspaper publishers. The order was served on newspaper groups, although they were not parties to the proceedings. MGN and News Group Newspapers applied to discharge the injunction. Associated Newspapers applied to vary it, principally because it affected the publishers’ freedom of expression and was drafted broadly.

The court considered whether the claimants had a reasonable expectation of privacy, whether the injunction was likely to be granted at trial, whether there had been material non-disclosure, and how the order should address third parties, public-domain information, the identity of persons unknown and the scope of the protected material.

1. Article 8 and Article 10. The claimants’ marital stresses and strains were capable of attracting a reasonable expectation of privacy. Being in the public eye did not amount to being a publicity seeker or waive privacy in intimate relationships. Bland public comments and permitted publication of limited lifestyle material did not authorise intrusive disclosure of private marital difficulties. The court had to balance Articles 8 and 10 without according automatic priority to either.
2. Threshold for interim relief. Applying Cream Holdings v Banerjee [2005] 1 AC 253, the relevant question was whether the claimants were likely to succeed in restraining publication at trial. On the evidence, appropriately confined injunctive relief was justified.
3. Disclosure. An applicant seeking relief without notice must take all practical steps to disclose material reasonably likely to assist realistic defences, including arguments that Article 8 is not engaged, that privacy has been waived, or that the public has been misled. This does not require indiscriminate disclosure of everything found by a media cuttings search. The non-disclosure here was not deliberate and, given the urgency and particular circumstances, did not justify refusing relief.
4. Scope and certainty. The injunction should identify the confidential information with precision. A confidential schedule was appropriate because a general prohibition concerning information about a marriage or relationship would be uncertain and disproportionate. Persons unknown could nevertheless be identified by description where those served would know whether they fell within it.
5. Third parties and public domain. A publisher on whom an injunction is intended to be served should ordinarily receive advance notice and a realistic opportunity to make representations. An express public-domain proviso should generally be included; those at risk of contempt cannot safely assume that an unstated qualification exists. Publication of some personal information does not necessarily destroy confidentiality or permit publication of all related details.
6. Service and the Spycatcher principle. The principle prevents third parties from frustrating the court’s purpose of holding the ring, but it is ancillary relief and should not replace an attempt to trace and serve the primary wrongdoer. Best endeavours should be used, tailored to the circumstances, and alternative service under CPR 6.8 may be appropriate.
7. The injunction was retained in narrower and more precise terms, with provision for the public domain and further consideration of the wording. The applications to discharge and vary were dealt with accordingly.

First-instance decision. No prior appellate decision is stated in the judgment.