CHS v DNH

Interim non-disclosure relief may be granted where private information has been accessed without permission and there is a real risk of threatened publication. The court must first determine whether the information is private. It must then balance the claimant’s rights under Article 8 against the respondent’s Article 10 rights, applying proportionality to both. Neither Convention right has automatic precedence. Under section 12 of the Human Rights Act, a without-notice order requires compelling reasons for non-notification, and pre-trial restraint requires sufficiently favourable prospects of success. Anonymity and restricted access may be ordered where identification would defeat the injunction, provided safeguards preserve the respondent’s ability to defend the claim.

The claimant sought without-notice interim non-disclosure relief against her boyfriend. She alleged that he had accessed her private journal and electronic contacts, retained confidential information concerning an intimate relationship, and threatened to expose it publicly. The defendant did not attend and was not represented.

The court also considered whether to sit in private, anonymise the parties, restrict access to the application papers, and make ancillary protective orders. The central issues were whether the information was private, whether the competing Article 8 and Article 10 rights favoured restraint, and whether the statutory requirements for without-notice interim relief were met.

1. Relief granted. The court made an interim non-disclosure injunction in the terms of the draft order. An early return date was fixed before the Vice Chancellor, and costs were reserved.
2. The court adopted the two-stage approach described in DFT v TFD [2010] EWHC 2335 (QB): first determine whether the information is private; then balance the competing Article 8 and Article 10 rights. The information was private and personal, and the claimant had a reasonable expectation of privacy and confidentiality.
3. Neither Article 8 nor Article 10 automatically prevailed. Following the guidance in Re S (A Child) (Identification: Restrictions on Publication) [2003] UKHL 47, the court focused on the comparative importance of the rights in the particular case, the justification for interference with each right, and proportionality. The claimant’s Article 8 right outweighed the defendant’s asserted freedom of expression because the threatened publication appeared motivated by malice.
4. Section 12 of the Human Rights Act imposed additional safeguards. Applying Cream Holdings Limited v Banerjee [2004] UKHL 44, the court required sufficiently favourable prospects of success to justify interim restraint. Compelling reasons existed for proceeding without notice because notification could prompt publication before the application was heard.
5. Following the guidance in H v News Group Newspapers Limited [2011] EWCA Civ 42, anonymity, restricted access to the papers, and ancillary orders were justified. Identification would risk jigsaw identification and defeat the purpose of the injunction. The order nevertheless contained protections enabling the defendant to defend himself.