ERY v Associated Newspapers Ltd

A quia timet injunction requires proof of a real and appreciable risk of a threatened wrong. For interim relief restricting publication, Human Rights Act 1998, section 12 requires a real prospect that publication will be restrained at trial, subject to the exceptional threshold recognised in Cream Holdings Ltd v Banerjee [2005] 1 AC 253. Privacy claims require a fact-sensitive two-stage analysis: reasonable expectation of privacy, followed by a balance between the competing Convention rights. Article 8 has no presumptive priority over Article 10. An injunction may restrain publication conveying that an individual is under police investigation while permitting accurate reporting of an investigation into a company, provided the order is sufficiently precise.

The claimant sought continuation of an interim injunction granted urgently by Dove J. The defendant, publisher of national newspapers, wished to report a police investigation into companies connected with the claimant. The claimant alleged that publication might disclose that he had been interviewed under caution or might convey that he personally was under investigation for financial crime.

The defendant stated that it did not presently intend to publish the interview under caution, accepted that publication of that fact would engage Article 8, and offered 24 hours’ notice of any change. The central issues were whether there was a sufficiently real risk of threatened publication, whether the information engaged a reasonable expectation of privacy, how Articles 8 and 10 should be balanced, and whether an injunction could be framed precisely enough.

1. Quia timet relief. The court applied the principle that a claimant must prove more than apprehension: there must be a real, appreciable or otherwise sufficiently substantial risk of infringement. That threshold was satisfied in relation to the possibility that publication would convey that the claimant personally was under police investigation.
2. Interview under caution. The application failed at the first stage in relation to publication of the interview under caution because the defendant did not presently intend to publish it. The defendant’s concessions materially distinguished the case from Weller v Associated Newspapers Ltd. Twenty-four hours’ notice of a change of position was reasonable on the evidence, given the claimant’s access to lawyers and the speed with which an injunction could be sought.
3. Privacy and Convention rights. Misuse of private information required first an inquiry into reasonable expectation of privacy and then an intense, fact-sensitive balancing exercise between Article 8 and Article 10. Neither right had presumptive priority. The defendant’s concession that publication of the interview would engage privacy rights supported the conclusion that information about the claimant’s police investigation also attracted a reasonable expectation of privacy.
4. Balance and precision. Article 10 did not prevail over the claimant’s Article 8 rights concerning publication that he personally was under investigation. The injunction did not prevent reporting that Company A was under police investigation, provided the article was written carefully to avoid conveying the prohibited personal meaning. The order was sufficiently precise, but the word “using” was removed so that the defendant could continue its investigations without publishing, communicating or disclosing the protected information.
5. The injunction was continued in amended form. The defendant was permitted to apply for discharge or variation on 24 hours’ notice, although such an application would have no prospect of success absent a significant change of circumstances.