AMM v HXW

An interim injunction may restrain disclosure of private information about marriage or sexual relationships whether the information is true or false. The court must consider freedom of expression, the statutory matters in Human Rights Act 1998 s 12(4), and whether publication is likely to be prohibited at trial under s 12(3). An anonymity order is not discretionary. It requires a balancing of Convention rights and open justice, including any public interest in identifying the applicant. Alleged blackmail does not automatically extinguish Article 10 rights, but may greatly reduce their weight. The public interest in preventing blackmail and the risk of jigsaw identification may strongly support anonymity.

The claimant, a married television personality, sought continuation of an interim injunction restraining his former wife from publishing information about their relationship. He alleged that she had demanded money while threatening to publish claims about their sexual relationship and other private information.

The defendant did not contest the merits of continuation, and Associated Newspapers Ltd did not make representations. Information about the proceedings had nevertheless appeared in the Daily Mail. The court considered the continuation and wording of the injunction, anonymity, private hearings, open justice, freedom of expression and the relevance of alleged blackmail.

Disposition

The interim injunction was continued with variations. The anonymity order was continued, and the applications had properly been heard in private.

1. Privacy injunction. Credible and uncontradicted evidence showed a threat to publish information about the claimant's private and sexual life. Such information was not information which the public had a right to know. Damages would not be an adequate remedy. No public-interest case for disclosure had been advanced. The requirements of Human Rights Act 1998 s 12(3) and s 12(4) were therefore satisfied. The authorities included Argyll v Argyll [1967] Ch 302, Stephens v Avery [1988] 1 Ch 449 and McKennit v Ash [2007] EWCA Civ 1714.
2. Anonymity and discretion. An anonymity order derogates from open justice. The decision is not an exercise of discretion. Under Article 8, Article 10 and Human Rights Act 1998 s 6, the court must balance the competing rights and decide whether an order is necessary. The relevant question was whether there was sufficient general public interest in identifying the applicant to justify the resulting interference with the applicant's and his family's private and family life. The court applied the guidance in Secretary of State for the Home Department v AP (No. 2) [2010] UKSC 26, Guardian News & Media Ltd & Ors. Re HM Treasury v Ahmed & Ors [2010] UKSC 1 and Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274.
3. Blackmail. An allegation that demands were made with threats did not automatically remove the defendant's Article 10 rights. It was, however, relevant to whether those rights were engaged and to the weight given to them. The claimant's Article 8 rights and the public interest in preventing and punishing blackmail weighed strongly in favour of anonymity. The reasoning in Thorne v Motor Trade Association [1937] AC 797 and R v Socialist Worker, ex pa A-G [1975] QB 637 (DC) was applied as relevant guidance.
4. Existing publication and identification risk. Because the Daily Mail article had already disclosed important information, protecting the claimant's identity required an anonymity order. The court followed the course adopted in DFT v TFD [2010] EWHC 2335 (QB), prohibiting disclosure of information liable to identify the parties, subject to exceptions for material in the public domain and material contained in a public judgment. The order addressed the risk of jigsaw identification.
5. Private hearing. An anonymity order and an order that proceedings be heard in private are distinct. In an appropriate case anonymity may sufficiently protect the complainant, allowing the substantive hearing to take place in public. That course is desirable in the interests of open justice, although it may duplicate argument and prolong the hearing.

The judgment records an earlier injunction granted by Edwards-Stuart J on 21 September 2010 and continued, with variations, on 4 October 2010. No appeal is stated.