GJE & Anor v SLE

Where a defendant is absent from a hearing involving relief that may affect freedom of expression, the court should first determine whether proper notice was given and then consider whether the evidence justifies an adjournment. If it is just and convenient to proceed, the court may determine the application in the defendant’s absence, while preserving safeguards such as service of the judgment and order.

Interim relief affecting freedom of expression may be granted only where the claimant is likely to establish at trial that publication should not be allowed. In a misuse of private information claim, this requires an engaged Article 8 right, a reasonable expectation of privacy, and effects sufficiently serious to outweigh any countervailing right. Irreversible disclosure and a present risk of repetition may make damages inadequate.

The claimants sought continuing interim injunctions and privacy measures against the defendant. They alleged persistent abusive and threatening communications, demands for money, and threats to disclose information about a past sexual affair.

An earlier order had granted interim protection and anonymised the parties. At the return hearing, the defendant had been properly served but did not appear, was not represented, and had not sought an adjournment. The court considered whether to proceed in her absence, whether anonymity and reporting restrictions should continue, and whether the statutory tests for interim relief were met.

1. Proceeding in the defendant’s absence. The court proceeded under CPR 23.11. Because the relief might affect freedom of expression, section 12(2) of the Human Rights Act 1998 required satisfaction that all practicable notification steps had been taken. The court adopted the two-stage approach identified in Pirtek (UK) Limited v Robert Jackson: first, assess notice; secondly, assess whether the reasons for non-attendance justified an adjournment. Proper service had been established, no adjournment had been requested, and the available explanation did not justify delay.
2. Privacy measures. Continuing anonymisation and restricted access to court papers were necessary because identifying the claimants could undermine the misuse of private information claim before trial. A private hearing and general reporting restrictions were unnecessary on the safeguards adopted.
3. Interim injunction. Under section 12(3) of the Human Rights Act 1998, the claimants had to show that they were likely to establish at trial that publication should not be allowed. They were likely to establish an Article 8 right engaged by information concerning their sexual life, a reasonable expectation of privacy, and serious effects on personal wellbeing, family life and employment. The defendant had no discernible countervailing right to make disclosure or use threats of disclosure to obtain money.
4. The harassment claim involved a separate jurisdictional issue. On the authority of Shakil-ur-Rahman v Ary Network, the tort might require harassment within the United Kingdom. Since the misuse of private information claim independently satisfied the threshold, the court left that issue unresolved.
5. Disclosure would be irreversible and damages inadequate. There was a present risk of disclosure or renewed threats. Although the assessment was provisional and based only on the claimants’ evidence, the legal tests for interim relief were satisfied. Continuing injunctive and privacy measures were ordered, subject to exceptions preserving the defendant’s ability to obtain advice and apply for variation or discharge.