AXB v CYD & Ors

Interim relief restraining publication engaging freedom of expression requires the applicant to satisfy the threshold in Human Rights Act 1998, section 12(3). The court must assess whether the applicant is likely to establish at trial that publication should not be allowed, applying a flexible standard which will generally require prospects of success better than even. In defamation cases, the rule in Bonnard v Perryman remains an additional and more stringent barrier where there is any real prospect that the claim may fail, unless the allegation is plainly untrue. Misuse of private information requires a reasonable expectation of privacy followed by an intense, necessity-based and proportionate balancing of competing rights. Interim harassment orders should identify specific acts rather than abstractly prohibit harassment.

AXB sought interim injunctions against CYD, EYD and FZG before issuing or serving a claim form. The proposed claims concerned defamation, harassment contrary to section 1 of the Protection from Harassment Act 1997, and misuse of private information arising from social-media publications concerning the claimant and the account known as Mr Fake Flex.

The claimant relied principally on witness evidence and later produced draft pleadings. The court considered whether the evidence justified restraints on publication, restrictions concerning private information, and orders relating to alleged harassment. It also considered undertakings, anonymity and limits on access to evidence.

1. Defamation and freedom of expression. The court applied section 12(3) of the Human Rights Act 1998. The claimant had to show that she was likely to establish at trial that publication should not be allowed. Following Cream Holdings Ltd v Banerjee, the standard is flexible, but an injunction will generally require prospects of success better than even. A lesser degree of likelihood may suffice in exceptional circumstances, including particularly grave consequences or a short-lived order needed to preserve the position.

2. The court also applied the rule in Bonnard v Perryman. In a defamation claim, an injunction should not be granted where there is a real prospect that the claim may fail. None of the allegations relied on was plainly untrue. The evidence was finely balanced, credibility was central, and the defendants had a credible case on substantial truth. Relief restraining the alleged defamatory publications was therefore refused.

3. Misuse of private information. The claimant first had to show a reasonable expectation of privacy. If that threshold was met, the court had to conduct an intense scrutiny of competing rights, treating them as inherently equal in value and resolving the conflict by necessity and proportionality. The court granted a narrowly drafted order against FZG restraining disclosure of the claimant’s home address, telephone number, images of her child, and private communications or correspondence not already in the public domain, subject to exceptions for litigation and legal advice. Equivalent undertakings from EYD and, informally, CYD were recorded.

4. Harassment. Section 12 applied, but the Bonnard v Perryman rule did not. Any order should identify specific acts, rather than prohibit harassment in the abstract. The evidence did not establish a sufficient threat from the defendants of the specified conduct, so no harassment injunction was granted.

5. The court ordered anonymity and restrictions on non-party access to evidence because derogation from open justice was strictly necessary in the unusual circumstances, including evidence of death threats, relocation and exceptional online abuse.

First-instance interim decision. The judgment records earlier interim hearings before Farbey J and Hill J, but no lower-court judgment was under appeal.