Terry v Persons Unknown (Rev 1)

At an without-notice interim application, the court must balance privacy, freedom of expression, open justice and fair-hearing rights without giving presumptive priority to any of them. Under HRA s.12(3), an injunction restraining publication before trial requires prospects of success sufficiently favourable to justify relief, generally meaning that success is more likely than not. The court must scrutinise the evidence, the alleged public interest, the extent of prior circulation, proportionality and the adequacy of damages. Where the substance of a privacy claim is protection of reputation, the rule in Bonnard v Perryman prevents an interim injunction if the proposed publication may be defensible in defamation. Extensive derogations from open justice, notice requirements and ordinary procedural safeguards require specific justification. A return date is ordinarily required for an order made without notice.

The applicant, initially anonymised as LNS and later identified as John Terry, sought an interim injunction against persons unknown. The proposed order would restrain publication of the fact and details of a relationship, related identifying information and photographs. It also sought a private hearing, anonymity, sealing of the court file, restrictions on reporting the proceedings, exemption from providing materials to notified third parties, and extensions of time for service.

The application was made without notice. The applicant relied on breach of confidence and misuse of private information. The principal issues were whether the evidence established a sufficient threat and sufficient prospects of success under HRA s.12(3), whether publication might be justified in the public interest, whether the claim was in substance concerned with reputation, and whether the proposed procedural derogations were justified.

1. Application refused. The court declined to renew or continue the interim injunction. There was a threat to publish the fact of the relationship, but the applicant had not shown that he was likely to establish at trial that publication should not be allowed.
2. For misuse of private information, the court must first ask whether the claimant had a reasonable expectation of privacy, judged by all the circumstances. If so, it must consider justification for disclosure, including public interest and public domain, and whether an injunction would be necessary and proportionate having regard to Articles 8 and 10.
3. The conflict between Articles 8 and 10 requires an intense focus on the comparative importance of the competing rights, the justification for restricting each, and proportionality. Neither right has presumptive priority. The same approach applies to tensions between privacy, open justice and Article 6.
4. Section 12(3) generally requires the applicant to show that success at trial is more likely than not, although a lower threshold may suffice in exceptional circumstances, such as particularly grave consequences or the need for a short-lived order enabling proper consideration of interim relief.
5. The court considered the nub of the complaint likely to be protection of reputation, particularly in relation to sponsorship. In that event, the rule in Bonnard v Perryman precluded an injunction because the proposed publication might be defended in defamation. The court was bound by existing authority.
6. The evidence was double hearsay and did not establish a likely breach of confidence. There was insufficient evidence of a real threat to publish intrusive details or photographs, although such material would have attracted stronger protection if a real threat had been shown. Damages would also be an adequate remedy on the evidence.
7. Open justice and the respondent’s opportunity to be heard required careful protection. Notice should have been given to the newspaper publisher known to be interested in publication. Any injunction would require a return date, personally verified evidence, and narrowly tailored confidentiality measures rather than wholesale sealing of the court file.