NPV v QEL & Anor

For an interim injunction restraining publication, s 12(3) of the Human Rights Act 1998 requires a claimant to show that publication is more likely than not to be prohibited at trial. The court may grant short-term relief to preserve the position where justice requires, but the ordinary threshold remains a probability of success. Purely private sexual information will usually attract no public-interest justification for disclosure. Alleged blackmail materially strengthens the privacy claim and reduces the weight given to freedom of expression. A course of oppressive blackmail demands is likely to constitute harassment, and the statutory defence of reasonableness is unlikely to succeed. The court may hear the application privately, anonymise the parties and restrict access to the court file where publicity would defeat the protective purpose of the proceedings.

The claimant, a businessman, alleged that the first defendant, with the assistance of the second defendant, was demanding money in return for not publishing information about their sexual relationship and related messages. The claimant sought interim injunctions restraining misuse of private information and harassment. The application was heard privately and without notice because notification created a real prospect of publication or further dissemination.

The defendants did not attend or make representations. The court considered whether the claimant had demonstrated a sufficient likelihood of success, whether the procedural protections for freedom of expression were satisfied, and what interim restrictions were justified pending a return hearing.

1. Private hearing, anonymity and file restrictions. It was strictly necessary to hear the application in private under Civil Procedure Rules 1998, Part 39.3(a), (c) and (g). Publicity through the court process could itself destroy the information the claimant sought to protect. Anonymity under Part 39.2(4) was justified because serious blackmail allegations had been made and the defendants had not yet had an opportunity to respond. The same considerations justified restricting access to documents on the court file. The court applied the approach in Khan (formerly JMO) v Khan (formerly KTA), [2018] EWHC 241 (QB), and the guidance in ZAM v CFM and TFW, [2013] EWHC 662 (QB), and LJY v Person(s) unknown, [2017] EWHC 3230 (QB).
2. Without-notice relief. Because Human Rights Act 1998, section 12 applied, the court could not grant relief affecting freedom of expression without compelling reasons for non-notification. The evidence disclosed a strong prima facie case of an ongoing blackmail attempt. There was a real prospect that notice would lead to publication, which constituted the required compelling reason.
3. Likelihood of success. “Likely” in section 12(3) meant more likely than not, or a probability of success, following Cream Holdings v Banerjee, [2005] 1 AC 253, and YXB v TNO, [2015] EWHC 826 (QB). The exceptional possibility of a short holding injunction did not alter the threshold on these facts.
4. The claimant was likely to establish a reasonable expectation of privacy in information concerning the sexual relationship and exchanged messages, applying K v News Group Newspapers Ltd, [2011] 1 WLR 1827. Purely private sexual encounters ordinarily lacked a public-interest justification for disclosure, even where adultery was involved, applying PJS v News Group Newspapers Ltd, [2016] AC 1081. The alleged blackmail substantially strengthened the case for restraint, and the claimant’s Article 8 rights were likely to prevail in the balancing exercise described in In re S, [2005] 1 AC 593.
5. The alleged demands were likely to amount to a course of conduct constituting harassment. The defendants were unlikely to establish that the conduct was reasonable under section 1(3) of the Protection from Harassment Act 1997. If the conduct was blackmail, it would amount to harassment. The first defendant was also likely to be liable as a joint tortfeasor. An interim injunction was therefore granted, with wider harassment restrictions justified by the blackmail element, pending reconsideration on notice.