COS v PER & Anor

For an interim non-disclosure injunction, the applicant must ordinarily show that publication is more likely than not to be prohibited at trial. The court may apply a lower threshold where the consequences of disclosure are particularly serious or a short-lived injunction is needed to preserve the position pending fuller consideration. In misuse of private information cases, the court must first assess whether there is a reasonable expectation of privacy. It must then conduct an intense and proportionate balancing of the Article 8 and Article 10 rights, without giving either precedence. The ultimate burden remains on the applicant.

The claimant sought urgent interim relief against the first and second defendants concerning disclosure of information about a private sexual relationship, private communications, images and material identifying her. The causes of action were breach of Article 8 ECHR rights and harassment under the Protection from Harassment Act 1997. The defendants were not notified in advance and did not appear. The court considered whether the statutory threshold for an interim injunction was met, whether the claimant had a reasonable expectation of privacy, and how the competing privacy and freedom of expression rights should be balanced.

1. The claimant’s application for an interim non-disclosure injunction was granted until the return date on 8 March 2021. The order restrained publication of private information and required removal of a specified video.
2. Under section 12(3) of the Human Rights Act 1998, the claimant had to show that she was likely to succeed at trial in establishing that publication should not be allowed. Applying Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the ordinary meaning of likely was more likely than not, but the approach was flexible. A lower degree of likelihood could suffice where the consequences of disclosure were particularly serious or a short-lived injunction was required to enable proper consideration of interim relief.
3. The claimant had a reasonable expectation of privacy in the information. Sexual activity was a classic example of information attracting such an expectation.
4. The court then carried out the required balancing of Article 8 and Article 10 ECHR rights. Neither right had precedence. The court had to focus intensely on their comparative importance, consider the justifications for interference with each, and apply proportionality to each right. The defendant’s Article 8 interest in speaking about their own life was also relevant.
5. On the uncontradicted evidence, the claimant had at least a good prospect of obtaining a permanent injunction. There was no real likelihood of a public-interest justification for publication, and the claimant’s Article 8 rights presently outweighed the defendants’ Article 10 interests. The conclusion remained open to review at the return hearing and at trial.
6. The further witness statement dated 2 March 2021 was not before the court when the injunction was granted and therefore did not form part of the reasons for that decision.

Not stated in the judgment.