TUV v Persons Unknown

Prior notification in privacy injunction applications affecting media non-parties is governed by proportionality and the individual facts. There is no blanket obligation to notify every media organisation which might theoretically be interested. Notification should generally be given where there are solid grounds to believe that the organisation has shown an interest in publication. The court must balance Article 6 and Article 8 rights against Article 10 rights, with an intense focus on the particular circumstances. Where materials are supplied to a third party under CPR 25 APD 9.2, an undertaking restricting use of both the documents and their contents may properly be required.

The applicant obtained an interim injunction against persons unknown after a burglary in which a laptop containing private information and visual images was stolen. On the return date she sought continuation of the protections, an extension of time for service, and a requirement that third parties receiving materials under CPR 25 APD 9.2 give an undertaking limiting their use.

MGN Ltd questioned the undertaking and submitted that CPR 31.22 and CPR 32.12 provided sufficient protection. It also contended that an applicant intending to serve media organisations should notify every such organisation in advance. The court considered the proper scope of those obligations.

1. Protection of supplied materials. CPR 31.22(1) applied only to parties and concerned documents disclosed under Part 31. MGN Ltd was a third party, and materials supplied under CPR 25 APD 9.2 were not documents disclosed in that procedural sense. CPR 32.12(1) did not provide adequate protection because it concerned witness statements served in proceedings and did not cover other materials, a hearing note, or information contained in the documents.
2. It was therefore appropriate to require an undertaking governing the use of documents supplied under CPR 25 APD 9.2 and the information contained in them. Such protection would often be reasonable to protect the relevant claimant’s Article 8 rights.
3. Prior notification to media organisations. The court had to balance the potentially competing Article 6, Article 8 and Article 10 rights. A blanket rule was inappropriate. Whether prior notification was proportionate had to be determined by an intense focus on the particular facts, including the expense, delay and inconvenience imposed on the applicant and the protections available to the media.
4. Applicants should generally notify media organisations which they have solid grounds to believe have shown an interest in publishing the information. They need not notify every organisation merely because it might theoretically become interested. The media remained protected by the applicant’s duty of full and frank disclosure, the opportunity to seek variation or discharge at short notice, and CPR 25 APD 9.