XLD v KZL

Before granting an interim injunction which may affect freedom of expression, the court must ordinarily be satisfied that the claimant is more likely than not to establish at trial that publication should be restrained. That threshold applied even where the alleged publication formed part of blackmail. The court may proceed without notice where there are compelling reasons not to notify the respondent, including a real risk that notification would trigger the threatened disclosure. Private sexual communications, participation in a dating website and information showing that a claimant is the victim of blackmail may attract a reasonable expectation of privacy. A persistent course of blackmail may also support an injunction for harassment.

The claimant, a United States citizen working in financial services and entertainment, sought interim relief against an absent defendant whom he alleged had persistently demanded money and threatened to disclose private information about his use of a dating website and sexually explicit communications. He relied on misuse of private information and harassment. On 11 June 2020 the court granted an interim injunction without notice, anonymised both parties, heard the application in private and permitted alternative service. The judgment addressed whether those orders were procedurally justified, whether notice could be dispensed with, whether the statutory threshold for relief affecting freedom of expression was met, and whether the evidence established a sufficient basis for interim relief.

1. Procedure and anonymity. In blackmail proceedings, anonymisation of the victim may be necessary because publicity could defeat the protective purpose of the proceedings. On an ex parte application, fairness also justified anonymising the defendant. The hearing could be private under CPR r.39.2(3), but the derogation from open justice had to be no greater than necessary; a public judgment was therefore delivered.
2. Absence of notice. Human Rights Act 1998 s.12 applied because the relief might affect freedom of expression. Although the defendant had not been notified, the compelling-reasons exception in s.12(2)(b) was satisfied. Notice created a real risk that the threatened disclosure would occur, and that risk was reinforced by the recent demands and evidence concerning other alleged blackmail attempts.
3. Threshold for interim relief. Applying Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the claimant had to show, on the evidence then available, that he was more likely than not to establish at trial that publication should not be allowed. That threshold was met. The court found a strong prima facie case of blackmail.
4. Substantive bases. The claimant was likely to establish a reasonable expectation of privacy in his use of the dating website, communications concerning a proposed relationship, sexually explicit messages and information about the alleged blackmail. The balancing exercise under Article 8 favoured the claimant. The evidence also showed persistence amounting to a course of conduct, and the ingredients of harassment summarised in Dowson v Chief Constable of Northumbria [2010] EWHC 2612 (QB) were present. The alleged criminal offence of blackmail under Theft Act 1968 s.21 supported, but did not itself determine, the civil harassment claim.
5. The injunction was continued until a return date at which the defendant could oppose it. Alternative service was permitted.