ASG v GSA

At the without-notice stage, section 12(3) of the Human Rights Act requires assessment of the applicant’s prospects at trial, but permits a flexible approach. A short interim injunction may preserve the position pending an inter partes hearing where the prospects are sufficiently favourable in the circumstances, even below the usual more-likely-than-not threshold. The court must assess the competing Article 8 and Article 10 rights. Adultery does not itself prevent Article 8 from being engaged. Where alleged blackmail creates an immediate risk of disclosure, a wider injunction may properly be granted for a limited period pending fuller argument.

The appellant sought urgent relief restraining the respondent from disclosing information about an adulterous relationship. The application was made without notice because the appellant alleged blackmail and feared immediate disclosure to the press or to his wife.

Blair J refused the application. He considered that notice should have been given and that, applying section 12(3) of the Human Rights Act, the appellant was unlikely to succeed at trial. The Court of Appeal considered the appropriateness of proceeding without notice, the threshold for interim relief, and the interaction between Articles 8 and 10. The central issue was whether a short-term injunction should be granted pending an inter partes hearing.

1. Appeal allowed. The court granted an injunction for seven days, with a return date to be sought within that period.
2. It was appropriate to proceed without notice. If the allegation of blackmail were established, giving notice would create a serious risk that the respondent would publish or seek payment for publication.
3. Section 12(3) of the Human Rights Act requires the court to look ahead to the likely outcome at trial. Cream Holdings Ltd v Banerjee [2005] 1 AC 253 establishes a flexible, circumstance-sensitive approach. Usually the applicant should show that success at trial is probably more likely than not. A lesser likelihood may suffice where disclosure consequences are particularly grave or a short-lived order is needed to enable proper consideration of interim relief.
4. The applicant must nevertheless show a sufficient likelihood of success at the inter partes hearing. The court should consider whether Article 8 is engaged, whether Article 10 is engaged, and, if both are engaged, whether publication is likely to be restrained after assessment of the competing rights.
5. Adultery did not prevent Article 8 from being engaged. The approach in CC v AB [2007] EMLR 11 was adopted. The respondent’s Article 10 rights were also engaged, but publication to the media and disclosure to the appellant’s wife might require different treatment.
6. The alleged blackmail made it appropriate, on the evidence then available, to grant the wider injunction temporarily. The factual position and the question whether disclosure to the wife should ultimately be restrained required fuller consideration at the inter partes hearing.
7. As the respondent appeared likely to be outside the jurisdiction, leave was granted for service out. The injunction was framed against disclosure or publication within the jurisdiction, with consequential requirements concerning the claim form, notice, supporting documents and undertakings. The court expressed, but did not finally determine, concerns about notifying the media of the appellant’s name without also identifying the respondent.

• Court of Appeal (Civil Division): The appeal was allowed and a seven-day injunction was granted pending an inter partes hearing.
• High Court, Queen’s Bench Division: Blair J refused a without-notice injunction, holding that the application should not have been made without notice and considering that section 12(3) of the Human Rights Act was not satisfied.