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Cite as: [2012] EWHC 766 (QB)

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		Neutral Citation Number: [2012] EWHC 766 (QB)
		Case No: HQ12X00983

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

28/03/2012

B e f o r e :

THE HONOURABLE MR JUSTICE TUGENDHAT
____________________

Between:

	(1) SKA and (2) PLM	Claimants
	- and -
	(1) CRH (2) Persons Unknown who have threatened to reveal private information about the Claimants	Defendants

____________________

Hugh Tomlinson QC (instructed by Mishcon de Reya) for the Claimants
The First Defendant appeared in person
The Second Defendants did not appear and were not represented
Hearing dates: 12 and 19 March 2012
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Tugendhat :

This is a claim for an order that the Defendants be prohibited from disclosing information which is said to be private and confidential, and from harassing the Claimants. In relation to harassment, the claim is a strong one, at least against the Persons Unknown. The claim is also a strong one in relation to much of the information sought to be protected, such as photographs and personal financial information, and intimate details of the private lives of the Claimants. The courts commonly grant injunctions to prevent harassment, and the disclosure of such intrusive or detailed information, and I shall do so in this case.

But there is a particular feature of this case which raises questions which have not hitherto been considered by the courts, or not considered following full argument. Amongst the information sought to be protected is the fact that the Second Claimant is due to give birth to twins in a few weeks time, that the First Claimant is the father, and that the persons to whom it is alleged that the Defendants have threatened to disclose this information are the grown up children of the First Claimant by his first marriage which ended many years ago, and to his second wife, to whom he is still married and with whom he is living (there are no children of that marriage). I shall refer to these persons as his first family. The main subject matter of this judgment is the strength of the claim that the court should prohibit the Defendants from disclosing to the First Claimant's first family the bare fact of the relationship between the Claimants and the fact that the Second Claimant is due to give birth to twins, of whom the First Claimant is the father.

There is also evidence of a threat to disclose the information to friends and business associates of the First Defendant. That raises different considerations.

The First Claimant is in his 70s, he is a citizen of a continental EU member state, and he controls, and is an active director of, substantial companies. He is described as a wealthy man. One of his grown up children works in the same business. Since 2007 the First Claimant has been in a relationship with the Second Claimant. He states:

"9. I was deeply shocked by the contents of this package [of 28 November] and very concerned about the threat of revelation of this private information to my family. My world, and that of my wife and children, would be shattered if they knew, and my relationships with them would be destroyed. I am certain, for example, that my children would be devastated and would not speak to me if they were given this information…"

The Second Claimant was born in Russia. She is not young, but is considerably younger than the First Claimant. For several years she also has been resident in the UK. She does not state what she does in the UK for a living, or what she did for a living before she met the First Claimant, which was shortly before she came to reside in the UK. She states:

"My relationship with [the First Claimant] is secret because he does not want to lose his family, nor be ostracised by his children and I know that he is certain that this would be the result should the information be revealed to them".

The First Defendant is alleged to be the person who, with at least one other person, has threatened to disclose the information. It is alleged that he has threatened to make the disclosure unless he is paid a very substantial sum of money, and that there is no warrant for that demand. In law that is an allegation of blackmail (Theft Act 1968 s.21). There is strong evidence that the threats have been made: copies of the letters containing the threats and demands are in evidence. But the letters are anonymous, and the First Defendant denies that he is the person making the threats.

The First Defendant is from Eastern Europe. His command of English is limited. He has denied the allegations in writing, and he appeared in person at the hearing on 19 March, when he again denied them. He asked for an opportunity to put forward his case in full with the aid of an interpreter and, if possible, a lawyer. The Order that I make will enable him to do that on another occasion, to be arranged as soon as is practicable. In the meantime I must decide whether to make an interim order on the basis of the evidence from the Claimants' side that is before the court.

THE FACTUAL BACKGROUND

It is important that I stress that this is a judgment given on an interim application. I have heard only one side of the case, the Claimants', and nothing I say is a finding of fact. What I say about the facts is a record of what the Claimants state them to be.

Although it is since a few years that the First Claimant has been in a relationship with the Second Claimant, and he states that this relationship is not known to his friends, family of business associates, she states that she sees him twice a day, and that she often accompanies him on trips abroad. She states that she only speaks to the First Claimant and close friends about her private life.

The Claimants both wanted the Second Claimant to become pregnant. As the First Claimant states, obviously the Second Claimant's pregnancy will by now be known to those who know her. I infer that by the end of November 2011 the Second Claimant's pregnancy would have been obvious to those that know her. There is no suggestion that the First Claimant's paternity, or any of the other detailed information about her which is contained in the threatening letters, would have been known to members of the public generally. The Second Claimant has said that: "The paternity of my children is known only to a very small group of my most trusted friends". She gives no further information about the numbers or identities of members of that group.

There is no evidence as to how many people who know the Second Claimant also knew that she was seeing the First Claimant and travelling with him as much as she describes. So it is unclear who, if any, amongst such people would have been likely to infer First Claimant's paternity. The only information in the Second Claimant's witness statement about third parties' knowledge of how the twins' conception is the statement that she only told one other person. It is that person's association with the First Defendant (which is specified) that brought suspicion upon the First Defendant as being the blackmailer.

On 28 November 2011 the First Claimant was first approached by a man he claims to be an associate the First Defendant (although he did not then know the identity of either man) who handed him a package, saying "I have something you may be interested in" and then walked away. The contents of the package are in evidence. They include a two page letter, typed in unidiomatic English, which included true information about the relationship between the Claimants and private financial information concerning both of them. The package also included print outs of every e-mail sent by the Second Claimants over a period of some months, and a memory stick containing photos of the First Claimant outside the Second Claimant's address. It appears that the Claimants have been under surveillance for a considerable time.

The letter included a statement that the writer had evidence of the pregnancy, including where the Second Claimant underwent treatment and when the twins are due. The letter contains nothing to identify the writer, but it ends:

"We decided not to inform our client … we don't want this information to destroy your position and relationship with your family, … You shouldn't break long term relationship with your family based on trust …

Our organisation has spent time and resources. We want to ask you to compensate our expenses and time spent in the amount of £1500000 pound. After payment is received we will give you full information and deliver all the material on this case (photos, video, documentation). Also as a present detailed material on your lover (photo and video).

We guarantee to close this case and destroy all the evidence and never return to this issue again.

We think we'll understand each other and everyone would remain in advantage."

There have been a number of further contacts from the alleged blackmailers. On 5 December 2011 a note was left on the First Claimant's car requesting a reply to the earlier demand. On 9 December the Second Claimant received a call on her mobile phone. On 12 December 2011 the First Claimant received a phone call in which the caller said "pay or else". On 21 December 2011 a note was left at the First Claimant's business address with a photograph of the Claimants together and information about the Second Claimant's pregnancy. On 7 January 2012 a further package was left at the First Claimant's office with a note. The same letter was hand delivered to the First Claimant's office on 17, 18 and 19 January 2012, stating that the Second Claimant had been secretly followed on flights (the date and destinations are given).

The First Claimant did not make the payment demanded. He caused investigations to be made. The private investigators submitted reports of counter-surveillance measures they had taken in relation to the First Defendant. The reports in writing are dated 3 and 4 January 2012 and 8 February 2012.

On 9 February 2012 representatives of the investigators of the Claimants' solicitors met with officers from the Kidnap Unit at the Metropolitan Police to report on the matter. A crime reference number was issued. The First Claimant states in his first witness statement:

"31. … The police were sympathetic to my position but made it clear that if I made a complaint against the First Defendant then they could not guarantee that I would remain anonymous and that there was a possibility that my name and details might become public, particularly during the investigation.

33. We are deeply concerned that if we do co-operate in any prosecution of the First Defendant, and he is arrested as a result, he may tell my family and our relationship out of spite and because he will have nothing left to lose. I hope a civil injunction holds a lower risk of this".

The First Claimant states that the private investigators warned the First Defendant that if he continued in his course of conduct, the First Claimant would seek to prosecute him. But, he states, the First Defendant has continued to pursue the Claimants.

The Claimants state that they have suffered and continue to suffer great distress as a result of the receipt of this letter and subsequent communications to a similar effect. The communications have included unwarranted demands for payment backed by threats to disclose information to members of the First Claimant's family.

As a result of the investigations he caused to be made, the First Claimant in January 2012 identified the First Defendant as the person he suspected to be the blackmailer. They arranged to meet. The First Claimant states that, in circumstances which were both distressing and intimidating, the First Defendant admitted his involvement and repeated his demands and threats to disclose private and confidential information to the family and business associates of the First Claimant. The First Defendant claimed that there were a number of others involved with him, but the investigations carried out for the First Claimant have revealed evidence of only one other person involved.

The First Claimant has made two witness statements. Neither is yet signed because he is at present unavailable to do so, but he has approved them and undertaken to verify them. In the first witness statement, submitted to me on 12 March, he stated:

"19. I am also very concerned for the health of my wife. She is [only a few years younger than himself], and I do not think that she would be able to handle this information, and particularly being told by a stranger or through anonymous communication. I am fearful of the effect that this would have on her…

36. This episode has been extremely distressing for everyone involved and has affected my health. As I explain above, I am very concerned about the effect on my [he repeats her age] wife should she be informed of this information by a stranger. She would be very confused and scared and I fear that it would have a real and destructive effect on her health".

THE LAW

The starting point is the Human Rights Act 1998 ("HRA"). By s.6 the court (as a public authority) is required to act compatibly with Convention Rights. By s.1(1) the court is also required to take into account judgments of the European Court of Human Rights ("the Strasbourg Court"). That is what Parliament, not the judges, has decided. The Convention rights which might possibly arise for consideration in this case are the rights to freedom of expression of the Defendants, and the rights of the First Claimant's children and his wife to receive information, which are protected by Article 10, and the right to respect for private and family life, not only of the Claimants, but also of the First Claimant's grown up children, his wife, and the twins, which are protected by Art 8. So far as material to the present case these provide:

Article 8 right to respect for private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the protection of the rights and freedoms of others.

Article 10 freedom of expression

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

(2) The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the … rights of others, for preventing the disclosure of information received in confidence ...

The exception in Article 10 relating to the protection of the rights of others and the disclosure of information received in confidence can apply only where conditions are satisfied. The restrictions must pursue a legitimate aim or aims, and be necessary in a democratic society for the protection of the legitimate aim or aims: the protection of the rights of others, or for preventing the disclosure of information received in confidence. They must also be proportionate to the end pursued, securing what is necessary for the protection of these aims and no more.

When considering whether the publication of information which is said to be private should be permitted, the first questions the court must is whether the claimant has a reasonable expectation of privacy in respect of that information such that the claimant's rights under Article 8 of the European Convention on Human Rights are engaged. If the answer to the first question is Yes, the second question the Court must address is what are the rights of the defendant. See e.g. Murray v Express Newspapers Plc [2009] Ch 481at [24], [27], [35] and [40]. Finally the Court must weigh the rights claimed by the claimants against the rights of the other individuals concerned.

The Court must have regard to the Art 8 rights of non-parties, and to the best interests of any child whose interests are engaged: K v News Group Newspapers Ltd [2011] EWCA Civ 439; [2011] 1 WLR 1827 paras [19]-[20]. Such persons should, if practicable speak for themselves: Hutcheson (Formerly Known As "KGM") v News Group Newspapers Ltd [2011] EWCA Civ 808 para [26]. (Where children and others lack legal capacity, there are procedures to enable their interests to be represented).

The rights under Art 8 may include the right of persons to know information about their identity: R (Rose) v Secretary of State for Health [2002] EWHC 1593 (Admin); [2002] 2 FLR 962, where Scott Baker J said at para [46]:

"Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them. It also embraces their physical and social identity and psychological integrity.

Respect for private and family life comprises to a certain degree the right to establish and develop relationships with other human beings."

While there will commonly be a reasonable expectation of privacy in respect of the details of a sexual or family relationship, the position is not the same in respect of the bare fact of a sexual relationship, or a parental or other family relationship: Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103, Sir Anthony Clarke MR at [59]; Ntuli v Donald [2010] EWCA Civ 1276; [2011] 1 WLR 294 paras [3] and [55]; Hutcheson paras [8] and [10]; Goodwin v NGN Ltd [2011] EWHC 1437 para [90].

In Murray the Court of Appeal said at [35] that the question at the first question is "a broad one" which "takes account of all the circumstances of the case". The Court of Appeal also quoted with approval Lord Hope's formulation of the test in Campbell v MGN [2004] 2 AC 457, [99]:

"The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the Claimant and faced the same publicity"

Relevant considerations include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent, whether it was known or could be inferred that consent was absent and the effect (of disclosure) on the claimant (see Murray at [36]).

The Court should approach the ultimate balancing exercise in accordance with the guidance given by the House of Lords in Re S (A Child) (Identifications: Restrictions on Publication) [2005] 1 AC 593, Lord Steyn at [17]. Where both Article 8 and Article 10 rights are involved: (i) neither Article as such has precedence over the other (ii) 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; (iii) the justifications for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test – or "ultimate balancing test" - must be applied to each.

Mr Tomlinson submits that in the present case the second question is: is there some proper justification for the disclosure of that information, that is to say disclosure to the First Claimant's grown up children, his wife, his business associates and others. I shall assume that that formulation of the second question is appropriate for the purposes of the application that is before the court.

In considering the questions the Court must give separate consideration to different items or classes of information, and the different persons to whom disclosure is at risk of being made, eg the public at large, or those who may have a particular interest in the information in question. See, for example, Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103, Sir Anthony Clarke MR at [36], [47], [49] and [62] (in that case difference considerations applied to information about the use by the claimant's sexual partner of property and facilities of the claimant's employer).

Since the injunction sought will affect the Convention right to freedom of expression of the Defendant and others, the Human Rights Act s12 applies. In this case the description of the Second Defendants in the title to the action ("Persons Unknown who have threatened to reveal private information about the claimants") is wide enough to include persons who have not attempted to blackmail the claimants, or made any demands upon them, whether warranted or unwarranted. HRA s.12 includes the following:

"12. - (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.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-

(a) the extent to which-

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published; ….

As the Court of Appeal explained the position in ASG v GSA [2009] EWCA Civ 1574 at para [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." (emphasis added)

The Protection from Harassment Act 1997 provides:

""(1) A person must no pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other…

(2) The person whose course of conduct is in question ought to know that it amounts to … harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to … harassment of the other…"

In Thorne v Motor Trade Association [1937] AC 797 at 817 (a case under the Larceny Act 1916 s.29(1)) Lord Atkin said:

"The ordinary blackmailer normally threatens to do what he has a perfect right to do namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure, as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a 'menace' ... or in itself provides a reasonable or probable cause for the demand" (at pp. 806-807)". (emphasis added)

The Court of Appeal in Hutcheson also made this observation which is relevant to whether an injunction is a proportionate measure in cases such as the present:

"There is an important distinction between the desire to keep information private and invoking the full panoply of the Court's jurisdiction in order to do so. It is and should remain a strong thing to impose a prior restraint on publication."

THE HEARING ON 12 MARCH

On 12 March I granted an interim injunction without notice to the First Defendant prohibiting the Defendants for the seven days (until the return date on 19 March) from disclosing the Claimants' private and confidential information and from harassing the Claimants.

In so far as it was a non-disclosure order it was substantially in the form of the Model Order in the Guidance of the Master of the Rolls issued in August 2011.

I ordered that the names of the Claimants be anonymised, so that the Court at the return date could then decide whether to maintain the anonymity, and what information could be published in this judgment. If the Claimants' names are not anonymised the court cannot give a detailed explanation of its reasons for making the order without disclosing the information which it is the purpose of the proceedings to protect. In the present case it is in the public interest to disclose the explanation of the court's reasons, rather than the identities of the Claimants.

I ordered that the name of the First Defendant be anonymised because the allegation made against him is blackmail. His name has not previously been published, and it would not be just for that allegation to be published before he had had an opportunity to state his case to the court.

I ordered that the application be heard in private. I considered that to be necessary because public disclosure of the details of the information would defeat the purpose of the proceedings (in so far as that purpose is to prevent disclosure of private and confidential information). For the same reasons I ordered that there be restrictions on access to the papers on the court file.

I said that I would give my reasons in writing later, and they are in this judgment.

The reasons why I ordered anonymity for the Claimants and the First Defendant, and that the proceedings be heard in private, apply as much today as they did on 12 March. So I have continued those orders.

The statements of the Claimants showed then (as they do now) a prima facie case of harassment within the meaning of the Protection from Harassment Act 1997.

I was also satisfied (in accordance with HRA s.12(3)) that the Claimants were likely to establish that publication of the information should not be allowed. But in relation to the bare fact of the First Claimant's paternity of the twins, that was only to the standard necessary for the purposes making an order for 7 days, pending a full hearing (as in ASG v GSA).

In relation to the fact of the First Claimant's paternity, I made clear to Mr Tomlinson that I was concerned as to the likelihood of his obtaining a permanent injunction at trial to prohibit the disclosure of that information to his grown up children and to his wife. I observed that I thought it unlikely that his grown up children would remain indefinitely in ignorance of the birth of the twins, their half siblings. I also queried why no injunction had been sought for so long (that is the three months since the end of November 2011). I said that if the order was to be continued after the return date the court would want to know the timetable that the Claimants had in mind for dealing with the matter. I said I thought it unlikely that any injunction restraining the disclosure of information to the First Claimant's family could be expected to last beyond the birth of the twins.

I was satisfied in accordance with HRA s.12(2) that there were compelling reasons why the First Defendant should not be notified (namely the risk that, if he were a blackmailer, he would carry out his threat before the order had been made), and that there were no practicable steps that the Claimants could take to notify the one collaborator of whom there is evidence, or any other unknown collaborator who the First Defendant is alleged to have said does exist.

EVENTS AND EVIDENCE SINCE 12 MARCH 2012

The Claim Form was issued on 13 March and served personally on 14 March. As an extra measure the Claimants had the covering letter, the order and the note of the hearing translated for service on the First Defendant. They also informed the police.

On 14 March 2012 the First Defendant sent an e-mail in which he denied being involved in blackmail, and said he did not know who is involved. He agreed he had met the First Defendant, but said he had explained the position to the First Defendant. He wrote that he would be happy to come to court, as in fact he did, on 19 March.

In a second witness statement the First Defendant says again that he is deeply concerned not to endanger his wife's well being. He states that her health is not particularly good, while giving no further details about that. He states that how he deals with this matter should be at the time and manner of his own choosing, and that it should be an entirely private matter between his wife, his children and himself. He repeats that he is concerned that his relationship with his children would be destroyed. He says it is his intention to make a police report at the earliest possible opportunity after he returns from his travels abroad. But he gives no dates for any these plans.

The Second Claimant's second witness statement includes the following:

"I understand that the court had some queries about the next steps to be taken in this matter. [The First Claimant] and I have discussed the birth of our children, and agreed that he will not be registered as the father so there will be no public record of the children's paternity. The paternity of my children is known only to a very small group of my most trusted friends, and obviously to [the First Claimant]. I do not believe that the information will find its way into the public domain unless [the First Defendant] and his associates disclose it".

So the emphasis of the further evidence of the First Claimant is that his family is to be told at a time and in circumstances of his own choosing. But he says nothing at all as to when that might be expected to be. The Second Claimant says nothing about the First Claimant's family being told. And she gives no further reasons for the proposal that the paternity of the twins be not registered. I infer that the reason is to keep the birth of the twins secret from the First Claimant's first family, as she explained in her first witness statement (see para 5 above). Neither Claimant's evidence contains any mention of the interests of the twins. It is clear whether or not they have considered those interests.

SUBMISSIONS FOR THE CLAIMANTS

Mr Tomlinson submits that the court can be satisfied that at a trial the Claimants would establish that they have a reasonable expectation of privacy in relation to the information that the Claimants are in a relationship and that he is the father of her twins.

In relation to details of any medical procedures undergone by the Claimants, photographs of them together, details of the times they have spent together, where they have been, and such like intrusive or intimate detail, I am satisfied at this stage that the Claimants are likely to establish at any trial that disclosure of this information to the public, or to the grown up children and the First Claimant's wife and business associates (unless it is relevant to any business matter) should not be allowed.

Where there is need at this stage for consideration and argument is in relation to the information as to the bare fact of the Claimants' relationship and the First Claimant's paternity of the twins, and the date of their birth.

Mr Tomlinson cites two cases where the court has considered the disclosure of information about a second sexual relationship to an existing partner of one of the parties to the second relationship. No children of the second relationship were involved in any of these cases.

In ASG v GSA the claimant was a well known person, married with children. He had an adulterous relationship with a girl that he met at a night club. He said 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. The judge at first instance had declined to grant an injunction, in part because he was not satisfied that the claimant would succeed at trial, as required by HRA s.12(3).

On 21 August 2009 the Court of Appeal granted an injunction to run for a few days until a full hearing. Waller LJ said:

"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. " (emphasis added)

So the Court of Appeal in that case considered that there might not be a basis for prohibiting the defendant from telling the claimant's wife, and left the relevance of the blackmail to be considered a later hearing. Mr Tomlinson was counsel in that case and has produced a note of the ex tempore judgment of Nicol J, although not, apparently, in a form approved by the Judge. Nicol J heard the matter on the return date on 28 August 2009. He decided not to make an exception to the injunction permitting the Defendant to make disclosure to the claimant's wife. But as is to be expected of an ex tempore judgment, it contains no guidance on matters of principle.

The second case cited to me by Mr Tomlinson is CTB (later named as Ryan Giggs) v NGN [2011] EWHC 1326 (QB) (the judgment of 23 May 2011 – an earlier judgment had been handed down on 16 May, namely [2011] EWHC 1232 (QB)). On 23 May NGN sought various orders, including a variation of the injunction which Eady J had granted on 20 April. He argued that in any event NGN should be allowed to pass on such information as it has, accurate or not, to the Claimant's wife. Eady J rejected that submission. He made his decision on the facts, setting out no new principles.

Mr Tomlinson submitted that it is no business of the Defendants in the present case to be giving information to the First Claimant's wife and grown up children. He accepts that it is just arguable that the Art 10 rights of the Defendants are engaged, but submits that they are extremely weak. He submits that there would be no contribution to public debate (a reference to newspaper cases such as Von Hannover v Germany (No 2) [2012] ECHR 228) and he notes that the Claimants have not waived any rights.

In his oral submissions Mr Tomlinson accepted that this was not a case where a court at trial would be likely to award a permanent injunction prohibiting disclosure to the First Claimant's grown up children and his wife. But he submitted that the court would be likely to grant an injunction for a limited period, what he called a breathing space, for say 6 months, to enable the First Claimant to prepare himself and his first family for the disclosure. He accepted the interests of the grown up children would have to be taken into account, as would those of the twins, at least once they were born. The interests of the twins would include there being as little disruption to the peace of mind the relationships between the different relatives of the First Claimant with himself, and with one another.

DISCUSSION

I remind myself that if HRA s.12 applies (as in my judgment it does) I have to be satisfied that the Claimants are likely to succeed at the trial of this action (assuming it gets to trial) in establishing that disclosure to the First Claimant's first family should not be allowed. If HRA s.12 is not engaged the test would be the lower one: I would have to be satisfied that the Claimants have a good arguable case, and that the balance of justice favours the grant of an injunction.

The first question is whether the Claimants have a reasonable expectation of privacy in respect of the bare facts of the existence of the First Claimant's second family, the identity of the Second Claimant as the soon to be mother in that family, and the imminent birth of the twins.

I recall that the test set out in Murray requires consideration of many circumstances of the case, including the attributes of the claimant, and the nature and purpose of the intrusion. The Claimants have given little information about the attributes of the Second Claimant: only her age, country of birth and country of residence, her relationship with the First Claimant and other information, mainly of a financial nature, in respect of which the Claimants do have a reasonable expectation of privacy, and as to which I shall grant an injunction. On this limited information it is not easy to consider what a reasonable person of ordinary sensibilities would feel if placed in the Second Claimant's position. Since it is the Claimants who must satisfy the court that they are likely to succeed at trial, the less of the potentially relevant information they give the court, the more difficult it will be for the court to be satisfied that they are likely to succeed at trial.

Although not cited to me, I found that the two decisions of the Court of Appeal in K v News Group Newspapers Ltd and Hutcheson, in both of which Mr Tomlinson also appeared, more helpful to me in what I have to decide. Hutcheson is closer to the facts of the present case than the two which Mr Tomlinson did cite.

In that case the claimant had two families. For many years the first family did not know of the existence of the second family, although the second family always knew of the existence of the first family. The claimant asked the court to prohibit News Group Newspapers Ltd from publishing information in the following categories: (i) As to the fact of his relationship with [the mother of the children of his second family]; (ii) As to the fact that he is the father of [the children in his second family]; (iii) As to [that lady] and their children … being [the claimant]'s "second family". By the time that judgment was given in that case the first family had learnt about the second family, so the question that I have to decide in this case no longer arose in that case. That case was concerned with a threatened publication in The Sun newspaper.

As recorded by the Court of Appeal at paras [8] and [10] of its judgment, Eady J had held that it was not necessary or proportionate for the protection of the Art 8 rights of the claimant to restrict the freedom of expression of any of the respondents in that case. Eady J held that they failed at the first question. He had said this in his judgment:

"36. I would accept that article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the 'second family' or to the Claimant's extra-marital relationship. It is a 'bare fact' case; that is to say, the court is concerned only with the bare fact of the familiar relationship… Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the 'second family'."

The Court of Appeal found it unnecessary to decide whether the claimant had succeeded at the first stage or not. Gross LJ said that it was at most a borderline case whether the claimant had a reasonable expectation of privacy in relation to the bare facts that he had a second family, and the identities of the mother and the children. See para [41].

On the first question, I would adopt the approach of Eady J in Hutcheson. I am not satisfied that the Claimants are likely to succeed at trial in establishing that they have a reasonable expectation of privacy in relation to those bare facts. My conclusion is based on the objective test laid down in the authorities (such as Murray at par [35]) as to what reasonable persons of ordinary sensibilities would feel if placed in the same positions as the Claimants and faced with disclosure to the wife and grown up children of the father in question. I would have held that she had a reasonable expectation of privacy in respect of her pregnancy at a time before it was obvious to those associating with her that she was pregnant. But since (as the First Claimant himself says) it is now obvious that she is pregnant, that time has passed.

If that conclusion is correct, that is an end of this application in so far as it concerns those bare facts. But in case I am wrong on this first question, I go on to consider the second question, set out in para 30 above: is there some proper justification for the disclosure of that information, that is to say disclosure to the First Claimant's grown up children and his wife? That requires consideration of the other Convention rights engaged, and the balancing of rights explained in Re S.

Mr Tomlinson was correct to accept that it is arguable that the Art 10 rights of the Defendants are engaged.

In AMM v HXW [2010] EWHC 2457 at para 38 I concluded from the passage for Lord Atkin's speech in Thorne:

"The fact that a person is making unwarranted demands with threats to disclose information does not of itself mean that that person has no right to freedom of expression. As Lord Atkin pointed out in Thorne, the blackmailer may even be under a duty to disclose the information. But if a person is making unwarranted demands with threats to publish, that is a factor in deciding whether that person has any Art 10 rights, and, if so, then the weight to be accorded to them in balancing them with the applicant's Art 8 rights."

I do not, therefore, accept that alleged blackmailers forfeit Art 10 rights, or that their rights are necessarily always weak, just because of the unwarranted demands that the blackmailers make. In a case of alleged blackmail, it remains necessary for the court to consider the value of the speech that would be made if the Defendants were permitted to make the disclosure they threaten to make.

At this point I interpose to note that, as stated above at para 32 above, the definition of the Second Defendant is wide enough to include persons who have not attempted to blackmail the Claimants, (and people who have not made any demands upon the Claimants, whether warranted or unwarranted). So an injunction against the Second Defendants could not be justified on the basis that they were all alleged to be blackmailers.

As noted in para 21 above, apart from any Art 8 rights of the Claimants, and the Art 10 rights of the Defendants, the other rights which may well be engaged include the Art 8 rights of the twins, and the rights under both Art 8 and Art 10 of the grown up children and the First Claimant's wife. All of these rights may well have to be considered by the court at any trial of this action.

In my judgment to tell a grown up child that his or her father aged in his 70s is, or is about to be, the father of twins, is speech of a high order of importance (that is on the scale of relative importance recognised by the Strasbourg Court). It is certainly not trivial. It is of importance to the grown up children and it is important for those about to be born. The First Claimant, an elderly father, is not likely to have a sufficiently long active life to assume parental responsibility for the twins for the period until they reach maturity. The grown up children, or anyone else who might control, or influence the control of, the First Claimant's wealth, upon which the twins might have a claim, may need to consider the responsibilities they wish, or ought, to assume, as well as any rights of their own which they wish to protect.

It is not clear on the evidence what position the Second Claimant will find herself in if the First Claimant is no longer able to carry on the existing relationship with her.

There is little comparison to be made between telling a married man's wife and young children that he has had an affair of the kind in question in ASG and CTB, and telling his wife and grown up children that he is about to become the father of twins in his 70s. So the two cases Mr Tomlinson cited are clearly distinguishable. It is not apparent from the note of Mr Tomlinson on what basis Nicol J reached the decision he did in ASG. In CTB Eady J based his decision, at least in part, on the view he formed of importance (for the purposes of Art 10) of the information in question in the particular circumstances of that case.

While Mr Tomlinson did not give a reasoned explanation for his accepting that a court at trial would be unlikely to grant a permanent injunction, in my judgment he was right to do so.

In the course of submissions I had suggested to him reasons why a court might be unlikely to grant a permanent injunction. There is likely to be a strong argument that the twins would have a right to know who their father is (R (Rose) v Secretary of State for Health [2002] 2 FLR 962). And since the First Claimant is the age he is, the rights and interests of his grown up children and of the twins that would arise on his death are likely to require consideration in a timescale which those expert in these matters can read off from actuarial tables. Both Art 8 and Art 10 include rights to receive, or have access to, personal information, the above mentioned case being one of a number of examples, all of which are fact sensitive. A court at any trial of this action may well invite submissions to be made as to the best interests of the twins, if the Claimants maintain the present position of not telling the First Claimant's first family. Since the birth of the twins is due so soon, and since there would little point in an injunction which lasted only until their birth, I have not thought it necessary to consider whether the rights of the twins are already engaged before their birth, or whether it is only at their birth that the court would be bound to have regard to their rights and best interests.

As to the concern the First Claimant has expressed for his wife, I have to say that I find his evidence particularly unimpressive on this point. First, it is not uncommon for claimants in the position of the First Claimant to tell the court that their wives or other existing partners are unaware of the second relationship which they wish to keep private. The court must be sceptical of these assertions. He does not explain how he claims to know that she does not know. Wives and partners do not have to declare it when they believe that they are being deceived. They may choose to keep that information to themselves.

Even if made in good faith, such subjective assertions by claimants are not on that account necessarily credible to judges who are required to adopt an objective approach to the facts. Claimants have a tendency to confuse the interests of their wives and partners with their own interests. Even if the wife or partner is truly in ignorance of the relationship which the claimant seeks to keep secret, it does not follow that the court should accept the claimant as being in a position to speak for the best interests of the wife or partner (or children).

In Hutcheson the claimant had stated that he was not concerned about his own reputation but that his concern lay with the distressing intrusion into the lives of the mother and children of the second family. But as the court remarked, there was no evidence from any of these persons, but only from the claimant himself. Gross LJ adverted to the this lack of evidence from the persons whose interest the claimant purported to be concerned with at para [26] and again at para [47], where he said:

"it is noteworthy that there is no evidence whatever from any family members (first or second) in support of the claim for injunctive relief. … if practicable, the family members should have spoken for themselves; there is no explanation before this Court as to why they have not done so here,…"