Ntuli v Donald

In a claim concerning proposed publication of private information, the court must first determine whether the information attracts a reasonable expectation of privacy. If it does, the court must conduct the ultimate balancing exercise between Articles 8 and 10, giving neither article automatic precedence.

Sexually explicit and other intimate personal details of a past relationship may attract protection even though the fact of the relationship may be published. An interim restraint affecting expression requires sufficiently favourable prospects of success under section 12(3) of the Human Rights Act 1998.

Open justice remains the starting point. Anonymity, private procedure and non-disclosure of proceedings must be no more restrictive than necessary to protect the privacy interest at stake.

Howard Donald obtained an interim privacy injunction against Adakini Ntuli after she indicated that she intended to sell her account of their former relationship to a newspaper. Eady J restrained disclosure of sexually explicit and other intimate personal information, but permitted disclosure of the fact of the relationship. The order also anonymised the parties and prohibited disclosure of the proceedings’ existence.

Ms Ntuli appealed against the substantive injunction, its wording, the anonymity and the superinjunction provisions. Mr Donald cross-appealed, contending that the injunction should also restrain publication of the fact of the relationship. The central issues were the proper Article 8 and Article 10 balance, the section 12 threshold for an interim restraint, and whether continuing secrecy was necessary.

1. The appeal was allowed in part. The substantive injunction was retained and the cross-appeal was dismissed. The orders anonymising the parties and prohibiting disclosure of the proceedings and injunction were discharged.
2. The court applied the ultimate balancing exercise in Re:S (a child)(Identification: Restrictions on Publication), [2005] 1 AC 593, and the two-stage approach in McKennitt v Ash, [2006] EWCA Civ 1714. The claimant had a reasonable expectation of privacy in sexually explicit details and in non-sexual but intimate personal details of the relationship. The defendant’s proposed commercial account did not contribute to a debate of general interest. The judge had correctly given it limited value in the Article 8 and Article 10 balance.
3. The prohibition was sufficiently clear. The word intimate was not confined to sexual material. It covered non-sexual intimate or personal details, while the order expressly permitted publication of the relationship’s existence and discussion with family and close friends.
4. Under section 12(3) of the Human Rights Act 1998, an applicant will generally need to show that success at trial is more likely than not, subject to exceptional cases. The evidence did not show that Mr Donald was likely to establish a reasonable expectation of privacy in the mere fact of a relationship which was not wholly secret. Its disclosure would not have particularly grave consequences. The judge had therefore neither erred in principle nor reached a plainly wrong conclusion in declining that further restraint.
5. The costs order remained within Eady J’s broad discretion. Although interim-injunction costs will normally be reserved, that is not an inflexible rule. The judge was entitled to take account of Ms Ntuli’s conduct and her partial success in narrowing the relief.
6. Open justice was the governing starting point. The Convention rights required careful attention but did not dilute the strict necessity standard for restricting publicity. As the public judgment did not disclose the protected information, continued anonymity and a superinjunction went further than necessary. Any privacy of a future trial or judgment would require fresh consideration in light of the issues then arising.

• Court of Appeal (Civil Division): Allowed Ms Ntuli’s appeal only as to anonymity and non-disclosure of the proceedings. Dismissed her substantive appeal and dismissed Mr Donald’s cross-appeal.
• High Court, Queen’s Bench Division: Eady J granted an interim injunction on 25 March 2010 and, on 26 April 2010, continued a modified substantive restraint with anonymity and non-disclosure provisions. He refused to restrain publication of the fact of the relationship and ordered Ms Ntuli to pay two thirds of the claimant’s costs.