OPQ v BJM & Anor

A contra mundum injunction may be granted to protect Convention rights, including an adult’s rights under Article 8, whenever it is necessary and proportionate. The jurisdiction is not confined to wardship, children, or persons unable to care for themselves. In a conflict between Articles 8 and 10, neither has automatic precedence. The court must intensely focus on the specific rights and facts, examine the justification for restricting each right, and apply proportionality to each. Confidential private information lacking public interest or any contribution to a debate of general interest will ordinarily weigh strongly in favour of Article 8 protection. An interim injunction may continue under section 12(3) of the Human Rights Act 1998 where the claimant is likely to obtain permanent relief, but the Spycatcher principle ordinarily ceases once the proceedings are concluded by final relief or an equivalent undertaking.

The claimant obtained an interim injunction restraining the first defendant and her partner from publishing confidential information and intimate photographs concerning his private life. The injunction was continued and varied on the return date. The defendants subsequently agreed to settle and undertook to the court not to publish the information, so a trial was unnecessary.

While the interim injunction remained in force, the claimant sought a further injunction against persons generally, to protect the information if the Spycatcher restraints ceased. The application raised whether the court had jurisdiction to grant a contra mundum order in support of an adult’s Article 8 rights, and whether such an order was necessary and proportionate in the circumstances.

1. Disposition. The court granted a contra mundum injunction restraining publication of any report concerning the subject matter of the proceedings or the claimant’s identity, subject to the limitation stated in the judgment.
2. The foundation of the jurisdiction to restrain publicity is the Convention rights protected by the Human Rights Act 1998. Historical distinctions based on wardship and the parens patriae jurisdiction no longer define the jurisdiction. The power is available to protect adults as well as children, and Article 8 rights as well as rights under Articles 2 and 3.
3. When Articles 8 and 10 conflict, neither right automatically prevails. The court must intensely focus on the comparative importance of the specific rights claimed, consider the justification for restricting each right, and apply proportionality to each. The claimant and members of his family had a reasonable expectation of privacy, supported by medical evidence concerning physical and mental health.
4. The court found no evidence that the information was already in the public domain, no legitimate public interest in disclosure, no issue concerning the exposure or detection of crime, and no contribution to a debate of general interest. The information concerned the private life of a private citizen and its publication posed a serious risk of harm. Article 10 rights therefore did not prevail.
5. The existing interim injunction and the Spycatcher doctrine continued to operate until the proposed settlement was implemented. Once final relief or an equivalent undertaking had overtaken the need for a trial, the doctrine would ordinarily cease. In anticipation of that event, a fresh order against the world was necessary and proportionate because there was no other effective means of protecting the claimant’s Convention rights.

First instance decision. The judgment records earlier interim orders made by Cox J and Mr Justice Eady, including [2011] EWHC 160 (QB), but no appeal from the present decision is stated.