YXB v TNO (No 2)

On an application for an interim order restraining publication, the claimant must ordinarily show that success at trial is more likely than not, although a lower prospect may suffice where the potential harm is especially severe. A claim for misuse of private information requires an objective assessment of reasonable expectation of privacy, followed by an intense and fact-sensitive balancing of privacy and expression rights.

Material non-disclosure on a without-notice application may justify discharge without determining the merits. The court retains a discretion to grant fresh relief, but should do so sparingly and proportionately. Anonymity for each party requires separate justification. Where the claimant’s evidence is weak and the non-disclosure is serious, discharge and refusal of further restraint may be the just response, even though particular images remain protected.

The claimant, a Premier League footballer, obtained without-notice interim anonymity, reporting-restriction and non-disclosure orders after the defendant agreed to sell a newspaper her account of their sexual encounter and related messages and images.

On the return date, the defendant alleged that the claimant’s evidence had materially misstated the privacy of the encounter, the purpose of a meeting at which money was discussed, and subsequent communications. She also challenged the allegation that she had blackmailed the claimant and opposed continuing restraint of the information, while accepting protection for the images.

The court had to decide whether the existing orders should be discharged for material non-disclosure, whether fresh privacy relief should be granted, whether the defendant should remain anonymous, and whether disclosure to friends and family should be permitted.

1. Existing orders. The evidence placed before Walker J had failed fully and frankly to disclose material facts. The encounter had been witnessed by other players; the principal purpose of the meeting with the defendant included discovering what it would cost to prevent publication; and a text message in which the defendant rejected further offers of money had been omitted. The last omission alone justified discharge. The claimant was responsible for the failures of his solicitors and agents acting on his behalf.
2. Blackmail. The allegation was materially weaker than it had appeared on the without-notice application. The court should avoid conducting a mini-trial of the offence on an interim application, but the available evidence strongly suggested that the claimant’s representatives had initiated efforts to buy off the defendant. The court was not persuaded that the claimant was likely to establish blackmail at trial.
3. Fresh relief. Applying the discretion recognised in Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, the court refused fresh restraint of the information and identification. The duty of full and frank disclosure must be enforced and fresh relief after material non-disclosure granted sparingly. The remaining privacy claim was weak because the relationship was fleeting, the information was limited, the claimant had provided no direct evidence of his concern or distress, and commercial motives appeared to have driven the application.
4. The images and video were treated separately. The defendant conceded protection for them, and the copyright claim concerning the images appeared strong. That protection did not justify continuing the wider orders.
5. The defendant’s anonymity required separate consideration. It had been justified at the without-notice stage because she had not yet had an opportunity to challenge the allegation against her, but there was no sufficient justification for continuing it. Naming her also served a modest public interest by attaching the story to an additional name and allowing her side of the dispute to be heard.
6. The orders previously made were discharged. Fresh orders were refused except for injunctions protecting the images and video. The question of disclosure to friends and family therefore did not need determination, although a blanket restriction would not have been proportionate.