Ho v Bragg

An interim injunction may be granted without formal notice where the statutory conditions for proceeding without notice are met. In an application affecting freedom of expression, Human Rights Act 1998, section 12 must be considered. For an interim non-disclosure order, the applicant must show that publication is likely, meaning more likely than not, to be prohibited at trial. Relevant considerations include the private and confidential nature of the material, the absence of apparent justification for publication and any blackmail element. The court may balance immediate delivery up against the respondent’s need to retain access to material required to present a defence at the return hearing.

The applicant sought urgent interim relief against a former partner. She alleged that he had removed private and confidential documents from her home and had threatened to disclose them unless she paid a substantial sum. The respondent was notified by email shortly before the hearing but did not attend or obtain representation.

The application initially focused on delivery up of the documents and was expanded to include an interim non-disclosure order. The claim form had not yet been issued. The central questions were whether relief could be granted without the respondent’s attendance, whether the statutory threshold for restraining publication was met, and what terms were appropriate pending the return day.

1. Interim relief granted. The court granted an interim injunction requiring delivery up of the documents, prohibiting disclosure of them or their contents, and requiring information about any previous disclosure. The orders were to remain in force until the return day on 14 February 2018.
2. Because the respondent was neither present nor represented, Human Rights Act 1998, section 12(2) applied. The email sent shortly before the hearing was relevant notification. In any event, the apparent blackmail element constituted a compelling reason under section 12(2)(b) why relief could be granted if the respondent had not in fact been notified.
3. The proposed delivery-up injunction was assessed under the familiar principles in American Cyanamid Co Ltd v Ethicon Ltd [1975] AC 396. The court considered the apparent strength of the proprietary claim and the applicant’s legitimate interest in preventing disclosure.
4. Section 12(3) imposed a higher threshold for the non-disclosure order. Following Cream Holdings Ltd v Banerjee [2005] 1 AC 253, “likely” meant more likely than not. The applicant satisfied that threshold because the documents appeared confidential and private, there was no apparent justification for publication, and the demand for money indicated blackmail. The respondent retained an opportunity to raise a public-interest justification or other defence at the return hearing.
5. The terms of the order had to preserve the respondent’s practical ability to answer the claim. Although the documents were ordered to be delivered to the applicant’s solicitors, they had to be copied and supplied to the respondent on an irrevocable undertaking that the copies would be used only for the proceedings. The respondent remained subject to the non-disclosure order pending the return day.

First-instance interim application. The judgment states that the claim form had not yet been issued and records no prior judicial decision.