LJY v Person(s) Unkown

An interim order restraining publication may be granted without notice where notice creates a real risk of defeating the application. The claimant must ordinarily show that prohibition of publication is more likely than not to be established at trial.

Blackmail substantially reduces the weight accorded to freedom of expression. It strengthens claims based on misuse of private information and harassment, and truth is not ordinarily an answer to either blackmail or harassment. If the defamation rule applies, however, an injunction requires the claimant to eliminate any real prospect of failure.

An interim non-disclosure order against unknown defendants must be actively managed towards a final determination. Alternative service may be ordered where it is reasonably calculated to bring the proceedings and order to the defendants’ attention.

A well-known person received an anonymous letter alleging that he had committed a serious criminal offence. It demanded £50,000 and threatened disclosure to news organisations and online publishers unless payment was made. The claimant denied the allegation, reported the demand to the police and applied without notice for an interim non-disclosure order against the unidentified authors.

The application relied on harassment, misuse of private information and defamation. The court had to decide whether the claimant was sufficiently likely to prevent publication at trial, whether proceeding without notice was justified, and how the claim could be served and progressed while the defendants remained unknown.

1. The application was granted. Section 12 of the Human Rights Act 1998 required the claimant to show that he was likely to establish that publication should not be allowed. “Likely” ordinarily meant more likely than not, as explained in Cream Holdings Ltd v Banerjee [2004] UKHL 44. Giving notice would have created a real risk that the defendants would publish immediately and defeat the application. The without-notice procedure was therefore justified.

2. The claimant was likely to succeed in misuse of private information. The allegation concerned an intimate aspect of private life. Its proposed use as leverage for an apparently unwarranted demand with menaces substantially reduced the weight accorded to freedom of expression. Preventing publication also served the legitimate aim of preventing crime. Although true allegations of crime may sometimes be published in the public interest, truth would not ordinarily prevent restraint where an allegation was being used for blackmail.

3. The threatened multiple publications were likely to constitute harassment. They would form a deliberate course of conduct on at least two occasions, objectively calculated to cause alarm or distress, and sufficiently oppressive and unacceptable to sustain criminal liability. A claimant seeking to restrain threatened harassment need not prove that the tort has already been completed. Truth is not itself a defence to harassment. On the present evidence, neither the crime-prevention nor reasonableness defence under section 1(3) of the Protection from Harassment Act 1997 was likely to succeed.

4. The order was independently justified in defamation. Even if the stricter rule in Bonnard v Perryman applied because protection of reputation was the true object of the claim, the evidence met that standard. The allegation was overwhelmingly likely to be shown false, no credible basis for truth or public interest had been advanced, serious reputational harm was likely, and damages would not be adequate. A bare assertion of truth is insufficient; the defendant must put forward a credible evidential basis.

5. It was arguable, but unnecessary to decide, that a properly evidenced case of blackmail constitutes an exception to the defamation rule. This point was expressly not a ground of the decision.

6. The order permitted disclosure to legal advisers and police and contained a public-domain proviso. It was not a super-injunction. Service was authorised by text message to the temporary number supplied by the defendants. If they failed to identify themselves, the claim form and particulars could be served by filing them at court, with a return date and possible application for default judgment. This ensured active progress towards a final determination.

not stated in the judgment.