JRV & Anor v BRG

For an interim injunction restraining publication of private information, the applicant must satisfy the heightened statutory threshold that publication is likely to be found impermissible. A merely serious issue to be tried is insufficient.

The court must then balance the competing privacy and freedom of expression rights under Articles 8 and 10 of the Convention. It should assess any reasonable expectation of privacy, whether the information is genuinely in the public domain, the comparative importance of the rights, the justifications for interference and proportionality. A time-limited injunction may be granted where damages would be inadequate and the balance of convenience favours protection pending trial.

The claimants, anonymised husband and wife, sought interim injunctions against the defendant, with whom the first claimant had had an affair. They alleged breaches of confidentiality, misuse of private information, harassment and related torts arising from online blogs, communications and threatened further publication.

The application was made ex parte before the return date. The defendant did not appear. The court considered anonymity, notice, the statutory requirements for publication injunctions, and whether the claimants were likely to establish that publication should not be allowed.

1. Interim relief. The court granted a time-limited interlocutory injunction restraining publication and specified forms of contact, harassment and disclosure until the return date. The allegations themselves remained matters for trial.
2. Under section 37 of the Senior Courts Act 1981, the High Court has power to grant an injunction where it appears just and convenient to do so. The section confirms, rather than creates, the court’s equitable jurisdiction.
3. The ordinary American Cyanamid approach is adapted in publication cases. Section 12(3) of the Human Rights Act 1998 requires the court to be satisfied that the applicant is likely to establish that publication should not be allowed. This is a higher threshold than a serious issue to be tried, though it does not require proof on the balance of probabilities.
4. The court must assess the competing Article 8 and Article 10 rights. It must consider whether the claimant has a reasonable expectation of privacy, whether the information is genuinely in the public domain, the comparative importance of the specific rights, the justifications for restricting each right and proportionality. Neither Convention right has automatic priority.
5. On the evidence, the claimants were likely to establish intentional and progressive blackmail, harassment and intrusion into private life. Damages would not adequately remedy continuing embarrassment, anxiety, reputational harm or the loss of privacy. The defendant could express her own life story without identifying the claimants or disclosing their personal details. The limited existing readership and risk of wider journalistic publication favoured interim protection.
6. The claimants’ anonymity was necessary to prevent the proceedings defeating the object of the injunction and to protect confidential information. There were also compelling reasons under section 12(2) of the Human Rights Act 1998 why prior notification was unnecessary.

Not stated in the judgment.