COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE EADY
REF NO: HQ10X01177
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE SEDLEY
| Adakini Ntuli
|- and -
Mr David Sherborne (instructed by Schillings) for the Respondent
Ms Heather Rogers QC for Guardian News & Media Ltd (Intervener)
Hearing date : 5 October 2010
Crown Copyright ©
Lord Justice Maurice Kay :
"Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?"
"PROVIDED THAT nothing in this paragraph of this Order shall prevent the Defendant from publishing, communicating or disclosing the following
(a) any material that before service of this Order was already in, or that thereafter comes into, the public domain …; or
(b) the fact that the Claimant had a relationship with the Defendant; AND PROVIDED FURTHER THAT nothing in this paragraph of this Order shall prevent the Defendant from discussing any of the material which she has already discussed or wishes to discuss with any family member or close friend, nor from disclosing to any such family member or close friend the existence of these proceedings or the Claimant's interest in them."
"Any intimate, personal or sexually explicit details about the relationship … including any facts of a sexual nature."
Another category referred to "intimate or sexual activity". The order also contained undertakings by Ms Ntuli.
1. Should Eady J have granted an injunction?
"First, neither Article [8 or 10] has as such precedence over the other. Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test."
"Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
"… in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by Article 8? If 'no', that is the end of the case. If 'yes', the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10? The latter inquiry is commonly referred to as the balancing exercise."
"The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too obtrusive and demeaning."
"… these would be matters in respect of which the Applicant would have a reasonable expectation of privacy, unless it could be shown that there was a countervailing public interest or that such matters were already genuinely in the public domain."
(1) "Other information"
"I would certainly grant an injunction in respect of 'salacious details' (to adopt Lord Hoffmann's phrase), but I would go further and restrict the communication, with a view to publication to the media, of information as to intimate conversations or activities. Wording of that kind would not prevent references to appearances or activities in public or social circumstances. A similar distinction was recognized in Lord Browne of Madingley. It has been acknowledged in that case and, for example, in McKennitt v Ash that private communications between intimates will generally give rise to a reasonable expectation of privacy under Article 8 …
The mischief towards which the injunction is directed is that of revealing publicly, for no good reason, intimate details relating to a personal relationship in which each party has a reasonable expectation of privacy."
As I have related, the injunction does not extend to discussions with close friends and family.
"I am not persuaded that there is any substantial argument for publication based on public interest. Applying the strict modern criteria to be found in the Strasbourg cases …, it seems to me that there is no reason to suppose that the revelation of the relationship would in any way contribute to a debate of general interest. Nor would it serve to prevent the public being misled or lead to the exposure of hypocrisy."
"… the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life."
"The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model's private life."
(2) The terms of the injunction
"should be to the highest degree clear and precise so that no publisher would be in any doubt whether he was infringing it or not." (Times Newspapers Ltd v MGN Ltd  EMLR 443 at page 447, per Sir Thomas Bingham MR).
"any intimate, personal or sexually explicit details about the relationship."
"… the court's protection should be extended to any facts communicated by the Defendant of a sexual nature or other intimate personal details about their past relationship."
2. The cross-appeal
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."
"Section 12(3) makes the likelihood of success at 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 paper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied that the applicant's prospects of success at 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 prospect 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 that he will probably ('more likely than not') succeed at 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 these 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 … 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."
With this in mind, I turn to the particular circumstances of the present case.
"There seems to be something of a conflict, or at least a difference of interpretation, on how private the relationship actually was. I cannot resolve such a conflict on an application of this kind. It seems to me right, therefore, to conclude that in this respect the Applicant has failed to persuade me that he is 'likely' to establish at trial that the relationship between them had been kept so private that he retained a reasonable expectation of privacy in respect of the mere fact that it existed. To put it another way, it has not been demonstrated that it is necessary and proportionate to extend the injunction so far as to restrict the Defendant's freedom of expression in this respect."
"The Defendant shall pay two-thirds of the Claimant's costs of and occasioned by this application (including, for the avoidance of doubt, the hearings on 30 and 31 March 2010 and on 26 April 2010), such costs to be assessed if not agreed."
4. Superinjunction and anonymity
"Upon it appearing to the Judge (1) that these proceedings are likely to attract publicity, (2) that publicity revealing the identity of the Claimant or the Defendant [is] likely unfairly to damage the interests of the Claimant and (3) that accordingly publication of details revealing the Claimant's or Defendant's identity ought to be prohibited."
"… the existence of these proceedings or the Claimant's interest in these proceedings."
(1) The superinjunction element
"[The point] is one of principle … turning not on convenience but on necessity."
Lord Atkinson added:
"… in public trial is to [be] found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect."
See also Lord Shaw of Dunfermline (at pages 476-478).
"… since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice … "
"Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it."
"… whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
Lord Justice Sedley:
The Master of the Rolls: