NEJ v Wood & Anor

On an application to continue an interim privacy injunction, the court must assess whether the applicant is likely to establish at trial that publication should be prohibited. The threshold is not invariably a balance of probabilities test; the applicant’s prospects must be sufficiently favourable to justify relief in all the circumstances. The court must then balance the applicant’s Article 8 rights against Article 10 rights, including the respondent’s and the media’s interests in publication. Restrictions must be necessary and no wider than required. Publication may be permitted in general terms to support public debate while preventing identification, including jigsaw identification. A prior or apparent breach of the order does not automatically make continuation futile.

The applicant, a well-known actor, sought continuation of an interim injunction made by Mr Justice Blake on 9 April 2011. The order restrained publication of information identifying him and details of sexual encounters with the first respondent, while also imposing anonymity, private-hearing and document-access restrictions. The first respondent, a prostitute, wished to publish her account through The Sun. The publishers appeared as an interested party and argued that some information was already in the public domain and that public debate required fuller description. The central issues were whether the statutory threshold for interim relief was met, what degree of publication could be allowed without identifying the applicant, and whether the remaining restrictions should continue.

1. Interim-relief threshold. The applicant was likely to establish at trial that the information was private and protected by Article 8. Applying [2005] 1 AC 253, the word “likely” in section 12(3) of the Human Rights Act 1998 did not invariably require proof that success was more likely than not. The prospects had to be sufficiently favourable to justify interim relief in all the circumstances; ordinarily, the applicant would probably succeed at trial.
2. Balancing rights. There was no demonstrated public interest in publishing the applicant’s identity or the full details of the encounters. The applicant’s Article 8 rights had to be balanced against the respondent’s and media’s Article 10 rights. The court accepted that public debate about privacy injunctions was itself a legitimate public interest. Publication could therefore identify the respondent’s relationship with a leading actor, a world-famous celebrity, who was married and a father, provided the description did not identify the applicant.
3. Necessity and identification. The restrictions on freedom of expression had to be necessary in a democratic society. The risk of jigsaw identification was relevant, but the permitted description did not create a sufficient risk to require a wider restraint. The applicant’s identity and the detailed sexual information remained protected.
4. Public-domain material. The apparent publication in the Daily Mail did not compel the conclusion that the injunction had become pointless. The court had to assess the extent and practical effect of dissemination and continue to weigh the competing rights. The court should not readily condone an apparent breach of an existing order.
5. Ancillary restrictions and order. The injunction was continued in principle, subject to the permitted publication. The applicant remained anonymous, the hearing was private, and restrictions on access to the court file and disclosure of documents and information were maintained under CPR Part 39.2(3)(a), (c) and (g), so that the purpose of the order was not frustrated.

The judgment records that Mr Justice Blake made the interim order on 9 April 2011. On the return date, Mr Justice King continued the injunction in principle, subject to specified provisos. No appeal history is stated.