Wer v Rew

On an application for an interim privacy injunction, the court may require sufficient candour to assess whether the information has entered the public domain, particularly where relief may restrict the Article 10 rights of numerous media organisations. The claimant need not necessarily disclose whether the allegation is true or false, but the court may properly enquire into the information’s availability and may require greater information about that issue. Any advance notice obligation to media non-parties is confined, as a matter of proportionality and common sense, to organisations whom the claimant has reason to believe have shown an interest in publishing the story. A blanket obligation to notify every organisation intended to be served is not required.

Gross J granted an interim injunction over the weekend restraining publication of information concerning an alleged extra-marital relationship involving the claimant. The defendant did not oppose continuation of the injunction until trial or further order.

The claimant was identifiable to some readers, although neither he nor the family member concerned was named. He declined to say whether the allegation was true or false and provided no information about the extent to which it was already available to the public. The central issues were whether the injunction should continue and whether media organisations intended to be served should have received advance notice.

1. The injunction was continued until trial or further order. The defendant did not oppose that relief, but the court was required to satisfy itself independently that continuation was proper.
2. The Court of Appeal’s statement in McKennitt v Ash [2007] 3 WLR 194, that truth or falsity is not ordinarily relevant to whether information is private, did not prevent the court enquiring into the extent to which the information had entered the public domain. The claimant’s limited disclosure was a legitimate exercise of counsel’s discretion and did not deprive him of an entitlement to interim relief.
3. Where an injunction may interfere with the Article 10 rights of a large number of media defendants, the court must have regard to material facts concerning public availability and to section 12(3) and (4) of the Human Rights Act 1998. The court was unhappy at having to decide the matter while effectively blindfolded, but the explanation of the practical difficulties facing privacy claimants justified continuation of the order.
4. Paragraph 9.2 of the CPR Part 25 Practice Direction requires materials read by the judge, or a note of the hearing, to be supplied promptly to a non-party served with the order unless the court orders otherwise. This created a legitimate concern that disclosure of the claimant’s evidence might reveal that the information was true or partly true.
5. The guidance in X v Persons unknown [2006] EWHC 2783 (QB) did not require advance notification to every media organisation on which the claimant intended to serve the injunction. Proper consideration of media rights required notice to organisations whom the claimant had reason to believe had displayed an interest in publishing the story, subject to the recognised practical exceptions. The approach reflected proportionality, common sense and economy.
6. The judgment was directed to be supplied to third parties only in redacted form.

High Court (Queen’s Bench Division): Gross J granted an interim injunction over the weekend. Sir Charles Gray continued it until trial or further order under [2009] EWHC 1029 (QB).