Cynthia Nkiruka Tooley MBE v Times Media Limited

Where interim relief is sought to restrain publication, the court must identify the essential purpose of the application. If its gravamen is protection of reputation, the defamation rule applies, even where privacy or confidence claims are also pleaded. The rule permits relief only where the publication is unarguably defamatory, cannot arguably be true, has no potentially successful defence, and is intended to be repeated.

A Norwich Pharmacal order requires a good arguable case of wrongdoing, necessity for disclosure, and involvement by a person able to provide the information. Necessity requires a necessary and proportionate response. The protection of journalistic sources may be overridden only where disclosure is really needed in the interests of justice or another statutory legitimate purpose, and no reasonable less invasive alternative exists.

The claimant brought claims arising from a Times article concerning her alleged arrest and treatment by the police. The claim initially pleaded defamation and malicious falsehood, and the claimant later added misuse of private information and breach of confidence.

She applied to amend applications for an interim injunction and Norwich Pharmacal relief. The injunction sought removal and non-publication of the article and related material. The Norwich Pharmacal application sought identification of the person who supplied a video recording to the defendant. The central issues were whether the applications could properly be reframed on privacy and confidence grounds, whether interim relief was available, and whether disclosure of the journalistic source was necessary and proportionate.

1. Amendment of injunction application. The essential purpose of the injunction application was to protect reputation. The claimant’s original claim and application focused on alleged defamatory meanings, reputational harm, damages, apology and correction. The later addition of privacy and confidence causes of action did not alter that purpose. The amendment was therefore refused insofar as it concerned the injunction.
2. Interim injunction. The defamation rule applied. The claimant had not identified the words complained of as required by Practice Direction 53B. In any event, the pleaded statements were not unarguably defamatory, and one statement was defensible as true on the claimant’s own recording. The injunction application was refused. The proposed order was also impermissibly wide because it sought removal of the whole article, prohibition of reader comments that had already been removed, and preservation orders unsupported by evidence.
3. The judge stated that, even if the amendment had been allowed, the application would fail under section 12(3) of the Human Rights Act 1998. The confidence claim was insufficiently pleaded. Although the arrest information engaged a reasonable expectation of privacy, the claimant had not shown that her Article 8 rights were more likely than not to outweigh the defendant’s Article 10 rights. The public interest in reporting the circumstances, the delay of 11 months, and the fact that substantially similar information was already public were material.
4. Norwich Pharmacal application. The amendment was unnecessary because the application already identified misuse of private information and breach of confidence as the alleged wrongdoing. The threshold conditions were met or arguably met, but disclosure was not necessary. The claimant had identified the person she believed to be the source and could ask that person directly. Disclosure was also not necessary and proportionate in all the circumstances. The potential claims were not particularly strong, less invasive alternatives existed, and the interests of justice were not sufficiently pressing to override journalistic source protection under section 10 of the Contempt of Court Act 1981.
5. All applications—to amend, for an interim injunction, and for a Norwich Pharmacal order—were refused.