Case No: A2/2009/1815
Neutral Citation Number: [2009] EWCA Civ 1574
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE BLAIR)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 21st August 2009
Before:

LORD JUSTICE WALLER
Vice-President of the Court of Appeal, Civil Division

LORD JUSTICE WARD
and
LORD JUSTICE STANLEY BURNTON
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Between:

	ASG	
Appellant	
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GSA	

Respondent	

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(DAR Transcript of 
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Mr H Tomlinson QC (instructed by Schillings Solicitors) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Waller:

1.	This is an appeal from a decision of Blair J who refused to grant an injunction on a without notice application restraining the disclosure of certain information.  The appeal has been held in private for reasons which are or will become obvious, that is to say, unless the proceedings are held in private the very remedy which the appellant is seeking will be denied him.  For the same reason, the least said about the facts in this judgment the better.  Suffice it to say, a well known person, married with children, had an adulterous relationship with a girl that he met at a night club.  He says that she is now attempting to blackmail him, demanding money under threat that she will otherwise publish in the press and/or tell his wife.  

2.	Blair J refused a without notice injunction on two bases: first, that the claim should not have come to the court without giving notice to the defendant girl; second, he expressed the view, applying section 12(3) of the Human Rights Act, that the claimant was unlikely to succeed at trial and therefore the injunction should not be granted.  

3.	As regards the point about the application being made without notice, it seems to me that if the allegation of blackmail is established, it would also be established that there was a serious risk that if given notice of the application of an injunction, the girl would have simply gone to the media and either sought to obtain money for publication or simply published.  I would therefore respectfully disagree with the judge that it was not appropriate to bring this without notice application.  

4.	As regards the chances of success at the trial, I accept that section 12(3) of the Human Rights Act does require the court to look ahead and only grant an injunction at an interlocutory stage if the claimant is likely to succeed at trial.  But I would also say that there will be cases where it may be necessary to grant an injunction ex parte to hold the ring until a proper inter partes hearing can be held and in which it can be finally explored as to whether the claimant will succeed at trial.  In such cases, of course, the claimant must show even at the ex parte stage a sufficient likelihood that he will succeed at the inter partes hearing, but a more flexible approach is appropriate.  Lord Nicholls put the matter in this way in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at paragraph 22:

“Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”

5.	The question I would therefore pose is: is there a sufficient degree of likelihood that the claimant will succeed at trial to justify an ex parte injunction for a short period pending an inter partes hearing?  As Browne v Associated Newspapers [2007] EWHC 202 and indeed other cases show, the court must first consider whether this is a case in which Article 8 is engaged.  It must then consider whether Article 10 is engaged.  If both are engaged, the court must then make an assessment of whether there is a likelihood at trial that, having regard to the claimant’s Article 8 rights, the publication sought by the defendant will be restrained.  

6.	It seems to me that the claimant is likely to establish that his Article 8 rights are engaged.  The sexual relationship with the girl was private as between them.  The cases indicate that the fact that it was adulterous will not affect the conclusion that Article 8 is engaged.  In CC v AB [2007] EMLR 11, a case where the cuckolded husband was seeking to publish details of a relationship between his wife and the other man, it was argued that an adulterer simply had no rights under Article 8 and Eady J said this at paragraphs 24 and 25:

“24. The other proposition which Mr Warby sought to derive from Stephens v Avery, since one of the protagonists happened to have been a married woman, is that it is hardly likely that a modern court would regard an adulterer as beyond the pale when it comes to the protection of intimate personal relationships. Indeed, if the commission of a crime does riot deprive a citizen of the opportunity to enforce his or her Article 8 rights (see e.g. Polanski v Condi Nast Publications Ltd [2005] 1 WLR 637), it is difficult to see how adultery could do so. 
25. Judges need to be wary about giving the impression that they are ventilating, while affording or refusing legal redress, some personal moral or social views, and especially at a time when society is far less homogeneous than in the past. At one time, when there was, or was perceived to be, a commonly accepted standard in such matters as sexual morality, it may have been acceptable for the courts to give effect to that standard in exercising discretion or in interpreting legal rights and obligations. Now, however, there is a strong argument for not holding forth about adultery, or attaching greater inherent worth to a relationship which has been formalised by marriage than to any other relationship.”

In looking at the question of arguability at this stage, I would adopt that approach of Eady J.  

25.	I then turn to the Article 10 rights of the defendant girl.  Clearly those are also engaged.  Leaving aside for the present any question of blackmail, the question is whether the claimant would be likely to succeed in obtaining an injunction restraining publication by the girl, and it seems to me the answer to that question could be different depending on whether the girl was seeking to sell the story to the newspapers and the media or simply informing the claimant’s wife.  This seemed to be a point which Eady J was referring to at paragraph 32 of his judgment in CC v AB.  In A v B Plc [2003] QB 195, which is a case referred to in that paragraph, the original decision of Jack J, he in fact confined his injunction to publication by the girl to the media, and it may thus be that there is a distinction between publication to others and publication to the media.  Thus, though without any blackmail element, there is as it seems to me a sufficient likelihood of the claimant succeeding at a trial to justify an ex parte injunction restraining publication by the girl from publication to the media, I am more doubtful as to whether without the blackmail element there would be a case for restraining the claimant from divulging the information to the claimant’s wife.

26.	Does the blackmail element make any difference?  What is said is that the claimant is entitled to an injunction to take away the basis on which the blackmail can operate.  That as it seems to me raises possibly a good point.  On the one side it could be said that until the girl stops blackmailing threats, she cannot rely on her entitlement to exercise her rights of freedom of speech.  On the other side it could be said that the claimant’s remedies are available without having to go to the court.  He could refuse to bow to the blackmail and he can report the matter to the police.  It is then up to the girl whether she exercises her right to divulge the information to, for example, the claimant’s wife without insisting on any payment.  But at this stage we are only concerned with whether an injunction should be granted for a short period of time pending full argument as to whether an interlocutory injunction should be granted until trial.  While there is (as there is) on the evidence before us, a blackmail element, it seems to me that the right course is to grant the wider injunction for a limited period of time.  By the time the inter partes hearing comes on, the factual situation may become clearer and the point can be more fully considered.  Thus I would allow the appeal and grant an injunction.

27.	But there are aspects so far as determining the terms of that injunction are concerned which it is important just to record.  First, it is actually not known where the defendant is at present.  The evidence would indicate that she was in communication with the claimant while she was in Portugal and that she was on her way to Brazil, so that the likelihood is that she is outside the jurisdiction.  It follows from that that in order for these proceedings to be served on her, there is a requirement that leave be given to serve out of the jurisdiction.  When one examines the paragraphs of 6BPD.3, which established the gateways for service out of the jurisdiction, the obvious candidate is one in which an injunction is sought ordering the defendant to do or refrain from doing an act within the jurisdiction.  That Mr Tomlinson ultimately accepted, and thus the injunction should be in the terms of must not disclose or publish within the jurisdiction, and then continue as the draft we have got, and leave to serve out should be granted.  It should appear under paragraph six, that leave has been given, and there should be an undertaking that a statement in accordance with the requirements for leave to serve out should be adduced and served with the claim form.

28.	So what will be necessary is that a statement is prepared and on that undertaking leave to issue a concurrent claim form for service out of the jurisdiction should be granted.  In the present draft order it should also be made clear that under paragraph 8 the appellant should not be required, (and there should appear at the end of that paragraph) without further order from the court; and in the schedule of undertakings the undertaking four should be the appellant will as soon as reasonably practicable give notice of this order to the respondent and will take all practical steps to serve the defendant with this order and all supporting documents.  

29.	I think I should also record finally that we have in debate with Mr Tomlinson recorded some anxiety about precisely the way in which this order might operate.  Clearly it will be the intention of those acting for the claimant to notify newspapers or members of the media of the existence of the order.  In so doing Mr Tomlinson has told us that the name of the claimant will be disclosed, so that if any person were to contact the newspaper or media suggesting that they have some confidential information about the claimant, the newspaper will be on notice that some form of order has been obtained from the court and the media or newspaper will then be able to get in contact with those acting for the claimant.

30.	The anxiety which I have so far as that process is concerned is that it seems to put the newspaper and media in a difficult situation insofar as they may be contacted by any person, and any person with some confidential information about this claimant will then impose on the newspaper or the media the requirement to ring those acting for the claimant.  My understanding is that that may be putting the burden the wrong way round, and I would have thought it possible that the right course is that if notification is going to be given to the media of the name of the claimant so that they at least know about whom disclosure might be made, they also ought to be told of the name of the defendant so that they appreciate precisely in relation to whom the injunction has been obtained.  But having listened to argument, I would not be prepared myself to make it a condition of the granting of this order at this stage that a notification should be given of both claimant and defendant.  It is a matter that needs further consideration and should be considered on the inter partes hearing.  

31.	But with those observations I would allow the appeal and I would grant an injunction in the terms indicated for a period of seven days, a return date being sought within that period.

Lord Justice Stanley Burnton:  

32.	I agree.

Lord Justice Ward: 

33.	And I also agree.

Order: Application granted; appeal allowed