RST v UVW (Rev 1)

An interim injunction restraining publication may be granted in a privacy or confidentiality claim where the claimant is likely to establish that publication should not be allowed under section 12(3) of the Human Rights Act 1998. The lower threshold explained in Cream Holdings v Banerjee applies at this stage.

The rule in Bonnard v Perryman, which ordinarily prevents an interlocutory injunction in defamation where the defendant alleges that potentially defamatory material is true, may raise a distinct issue where the claim is advanced in privacy or confidence. The court must distinguish a genuine privacy claim from an attempt to evade the safeguards applicable to defamation. The interaction between privacy and freedom of expression requires the Article 8 and Article 10 balancing exercise identified in Re S.

The claimant applied without notice for an interim injunction restraining disclosure of information concerning paid sexual encounters, a related confidentiality agreement and the identity of the claimant and another person. The defendant was neither present nor represented.

The application was brought in privacy and confidence rather than defamation. The claimant relied on the private setting of the encounters, the written agreement and an alleged threat to publish. The central issue was whether the rule in Bonnard v Perryman applied where the threatened publication might be defamatory and true, but the claim was framed as one protecting privacy or confidential information.

1. Order granted. Mr Justice Tugendhat granted the interim injunction, together with anonymity, confidentiality and related procedural protections. The application was heard without notice because there was a real prospect that notification would defeat the purpose of the injunction.
2. Section 12(2)(b) of the Human Rights Act 1998 permitted relief without notice where there were compelling reasons not to notify the respondent. The alleged threat to publish despite the warning of legal issues supplied that reason.
3. The court was satisfied for the purposes of section 12(3) that the claimant was likely to establish that publication should not be allowed. The applicable interlocutory threshold was the lower threshold explained by the House of Lords in Cream Holdings v Banerjee.
4. The court identified an unresolved issue concerning the relationship between privacy and defamation. The rule in Bonnard v Perryman ordinarily prevents an interlocutory injunction where potentially defamatory material is alleged to be true. It remained to be decided whether, and to what extent, that principle applies to a claim genuinely based on privacy or confidence.
5. The claimant’s case differed from the examples discussed in A v B plc and Theakston v MGN Ltd. The encounters occurred at the claimant’s home and there was also a written confidentiality agreement. Those matters supported the arguability of a legitimate privacy claim, although the substantive classification of the claim could be debated at trial.
6. Where Articles 8 and 10 are engaged, neither has automatic precedence. The court must focus intensely on the comparative importance of the specific rights, consider the justification for restricting each right and apply proportionality to each, following the ultimate balancing test in Re S.
7. A claimant may choose between available causes of action, but an injunction may be refused where a privacy or confidence claim is in substance an attempt to circumvent the rules of defamation. The court expressly left the wider application of Bonnard v Perryman for determination when the matter returned.
8. The order was subject to undertakings, including service of an anonymised note of the hearing and transcript. The defendant or any other affected person could apply to vary or discharge the order.