TRK & Anor v ICM

Interim injunctions restraining harassment and disclosure of private information may be granted without notice where there are compelling reasons and a real risk that notice would defeat the application. Under section 12(3) of the Human Rights Act 1998, the applicant must show prospects of success at trial sufficiently favourable to justify interim relief. The usual threshold is a probable success, but a lesser degree of likelihood may suffice where a short-lived injunction is needed to hold the ring pending an inter partes hearing.

The court must scrutinise the actual rights engaged, including competing rights under Articles 8 and 10. Unauthorised access to private correspondence, followed by threatened disclosure or harassment using information obtained through that wrongdoing, is a powerful factor supporting restraint.

The claimants sought without-notice injunctions against ICM. They alleged that he had accessed BVP’s email account without authority, obtained private correspondence concerning her relationship with TRK, and threatened to disclose that information to TRK’s wife while communicating with and harassing the claimants.

The defendant was not represented. The application concerned whether the hearing should proceed without notice, whether there was a real risk of continued harassment or disclosure, and whether the statutory threshold for interim relief under section 12(3) of the Human Rights Act 1998 was met.

1. Interim relief granted. The court granted seven-day injunctions restraining harassment and disclosure, pending a hearing on notice to the defendant. The application was properly made without notice because the defendant’s inconsistent threats created compelling reasons to proceed in that way under section 12(2) of the Human Rights Act 1998.
2. There was a real risk that, unless restrained, ICM would continue communicating with the claimants or disclose information to WRK. The evidence showed repeated and inconsistent threats, including threats to inform WRK of TRK’s infidelity.
3. The threshold in section 12(3) of the Human Rights Act 1998 was satisfied. The court followed the approach in ASG v GSA, [2009] EWCA Civ 1574, and the guidance in Cream Holdings Ltd v Banerjee, [2005] 1 AC 253. The question was whether the prospects of success at trial were sufficiently favourable to justify a short ex parte injunction pending an inter partes hearing. A flexible approach was required; the ordinary threshold is probable success, but a lesser likelihood may suffice where a short-lived order is needed to hold the ring.
4. Following In re S (A Child), [2005] 1 AC 593, the court rejected decision-making by broad generalities. It scrutinised the actual rights engaged. TRK’s Article 8 autonomy rights had to be balanced against the Article 8 and Article 10 rights of WRK and ICM.
5. On the evidence, unauthorised access to BVP’s private emails was highly likely to be wrongful. The fact that BVP had been two-timing ICM did not justify hacking. Disclosure, or continued use of information obtained through that wrongdoing to threaten or harass the claimants, would risk allowing the wrongdoing to operate as a springboard. The apparently vengeful purpose of the threatened disclosure also supported restraint.
6. The hearing was held in public, with anonymity and restrictions on access to the court file. The injunctions were limited to seven days, and the claimants were expected to provide better evidence at any further substantive hearing concerning disclosure to WRK.