Winch & Ors, (Persons Formerly Known As) (Contra Mundum Injunction)

A contra mundum injunction may exceptionally be granted where cogent evidence establishes a real and immediate risk of death or serious physical harm if identifying information is published. Where Articles 2 or 3 are engaged, that risk is not balanced against Article 10. If the threshold for Articles 2 and 3 is not reached, the court must undertake an intense Article 8 and Article 10 proportionality assessment. The interim threshold under section 12(3) of the Human Rights Act 1998 is normally a likelihood of success, but a lower degree of likelihood may suffice where disclosure would have particularly grave consequences. A contra mundum claim may proceed without naming every person bound by the order, and service may be dispensed with under CPR 6.16.

The claimants were persons formerly known by other names. The first claimant had pleaded guilty to serious criminal offences and had acted as an assisting offender and witness in prosecutions against organised criminals. The claimants relied on evidence that disclosure of photographs, descriptions or other identifying information would expose them to death or serious violence.

Following the expiry of reporting restriction orders made in the Crown Court, the claimants issued a Part 8 claim against persons unknown and sought a permanent injunction effective against the world. Interim relief was granted and continued pending trial. The issues included whether the exceptional Venables jurisdiction was engaged, whether the interim statutory threshold was met, and whether procedural steps were required for a contra mundum application.

1. Interim relief granted. The court was satisfied that the claimants were more likely than not to succeed at trial and that the evidence demonstrated a significant and weighty risk of death or very serious violence if organised criminal groups could identify and locate them. The order would materially mitigate that risk.
2. The court applied the principles identified in RXG v Ministry of Justice [2019] EWHC 2026 (QB). A real and immediate risk of serious physical harm or death engaging Articles 2 or 3 is not balanced against Article 10. If that threshold is not met, the court must intensely focus on the comparative importance of the Article 8 and Article 10 rights and apply proportionality.
3. The order was justified despite the first claimant’s criminality. The critical issue was the existence and nature of the threat. This case was stronger than earlier cases because the threat arose from assisting law enforcement and giving evidence, and protection would support the criminal justice system and incentivise informers.
4. The restriction on reporting was modest. It did not prevent reporting the claimant’s crimes or use of his former name, but withheld information capable of identifying and locating the claimants. That protection outweighed the limited reporting interest in that information.
5. For interim purposes, section 12(3) of the Human Rights Act 1998 ordinarily required the claimants to show that success was more likely than not. A lower likelihood threshold could apply where disclosure had particularly grave consequences. The evidence satisfied either formulation.
6. Procedurally, a contra mundum order binds persons whether or not they are parties. “Persons Unknown” should not be used as a synonym for everyone. It was unnecessary to name every person bound, and the court could dispense with service under CPR 6.16. Although section 12(2) was not engaged because there was no respondent to the interim application, notification of the media was ordinarily appropriate. The injunction was continued pending final judgment, with directions for further evidence and trial.

First-instance decision. Interim injunction granted and continued pending final judgment; directions were given for further evidence and the final hearing.