SKA & Anor v CRH & Anor

In an interim privacy application, the court must assess each item of information and each proposed recipient separately. A bare fact of a sexual or family relationship may attract less privacy than intimate details, but the question remains fact-sensitive. The court must identify and balance all affected rights under Articles 8 and 10, including the rights of non-parties and children. Alleged blackmail does not automatically remove the defendant’s Article 10 rights. Section 12(3) of the Human Rights Act 1998 generally requires sufficiently favourable prospects of success at trial, although a flexible approach may apply for short interim protection. A restraint on disclosure to family members was refused where the information was important to them, could not realistically remain secret, and the evidence did not establish necessity or proportionality. Protection was maintained for more intrusive information and disclosure to friends and business associates.

The claimants sought interim injunctions restraining alleged blackmailers and persons unknown from disclosing private and confidential information and from harassing them. The information included details of their relationship, the second claimant’s pregnancy with twins, the first claimant’s paternity, intimate photographs, financial information and surveillance material.

The application followed a without-notice seven-day injunction. At the return hearing, the court considered whether the claimants were likely to establish that disclosure should not be allowed, particularly disclosure of the bare facts to the first claimant’s wife and adult children, and disclosure to friends and business associates.

1. Interim threshold. Section 12(3) of the Human Rights Act 1998 applied. The court therefore had to be satisfied that the claimants were likely to establish at trial that publication should not be allowed. The standard could be applied flexibly where a short-lived order was needed to hold the ring, but the claimants still required sufficiently favourable prospects of success.
2. Privacy and balancing. The reasonable-expectation-of-privacy inquiry required consideration of all the circumstances, including the claimants’ attributes, the activity, the place and purpose of the intrusion, consent and the effect of disclosure. Different information and different recipients required separate assessment. The court had to apply the intense focus and ultimate balancing exercise required by Re S, taking account of the Article 8 and Article 10 rights of the claimants, defendants, adult children, wife and twins.
3. Bare facts. The court adopted the approach in Hutcheson. It was not satisfied that the claimants were likely to establish a reasonable expectation of privacy in the bare facts of the second family, the relationship and imminent birth. Even if Article 8 were engaged, disclosure to the first family concerned speech of substantial importance to them and to the twins. The evidence did not establish that restraint would be necessary or proportionate, and no short breathing-space injunction was justified.
4. Blackmail and recipients. Alleged blackmail did not automatically deprive the defendants of Article 10 rights. The court had to consider the value of the threatened speech. The position differed for friends and business associates, who had no apparent competing rights or interests. If the claimants had a reasonable expectation of privacy in the bare facts, disclosure to those persons should not be allowed.
5. The injunction was granted substantially in the terms sought, but it did not prohibit disclosure of the bare fact of the relationship, the first claimant’s paternity and the impending birth. It continued to protect more intrusive private information and harassment. The court made no determination of the rights of the first family or the twins and did not authorise disclosure.