No. HQ09X04086
Neutral Citation Number: [2009] EWHC 2448 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Friday, 11th September 2009

Before:

MR. JUSTICE TUGENDHAT
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B E T W E E N :

	  RST	Claimant

-  and  -

	    UVW	Defendant

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MR. A. CALDECOTT QC  (instructed by Carter-Ruck)  appeared on behalf of the Claimant.
THE DEFENDANT  did not appear and was not represented.

J U D G M E N T
(Revised 1)
MR. JUSTICE TUGENDHAT:
1.	 The applicant has come before the court without notice, applying for an interim injunction in the terms which I have already indicated that I will grant (following exchanges with counsel). I ordered that the hearing be in private pursuant to held in private pursuant to CPR 39.2 (3) (a), (c) and (e), but this partially redacted judgment is open. 
2.	The interim injunction will restrain the defendant from disclosing information, referred to as confidential information, in terms set out in para 4 below. The information is identified in the Order at Schedule 3 as:
“any information or purported information concerning or relating to
(a)	the relationship between the Claimant and the co-signatory with him of a letter of agreement dated … 2005 (whether she is identified by name or not) including - 
 
(b)	the fact or details or terms or purpose or any other matter concerning an agreement or negotiations between the Claimant and the said co-signatory relating to  maintaining the privacy of their relationship and/or relating to any payment by the Claimant to her or her business”. 
3.	 I shall refer to that agreement as “the agreement”.  
4.	 In addition, the applicant has sought, and I have indicated that I will grant, orders which protect his identity and that of the lady.  These are made pursuant to the powers of the court, including those under the Contempt of Court Act section 11 and CPR 39.2 (3) and (4), CPR 31.22, CPR 25 PD 9.2, CPR 5.4C(4) (a) and (d). They include the following:
“2. The proceedings are anonymised and the Claimant shall only be referred to as RST and the Defendant shall only be referred to as UVW in all court documents and notices and in open court. 
3. The Claimant need not disclose private and/or confidential material included in the witness statement and/or confidential schedule save as provided elsewhere in this Order.
4. The Claimant is not required to disclose private and/or confidential evidence served in support of the injunction in addition to the documents referred to at paragraph 3 above (including material referred to at a hearing or read by the Judge at a hearing and material prepared after a hearing at the direction of the Judge or in compliance with the order save for a suitably anonymised note of the hearing and a copy of the extempore judgment) if requested to do so by a third party on whom a copy of this order has been served and upon whom the terms of the order are binding. 
5. No person who is not a party to proceedings may obtain from the Court records a copy of the Claim Form or any Statements of Case or other documents filed in these proceedings without the permission of the Court.
6. The Defendant, until trial or further order in the meantime, must not whether by himself, servants or agents or otherwise howsoever publish, republish, syndicate, use, communicate or disclose to any party (save for seeking legal advice or otherwise for the purpose of the proper conduct of these proceedings) any information set out in the Confidential Schedule 3 to this Order or any evidence served in support of the injunction and must not cause or authorize any other person, firm or company to do any of those acts. Nor must the Defendant disclose the name of the Claimant in these proceedings or any other information from which the Claimant could be identified as connected with these proceedings or the nature of these proceedings or the relief sought and/or granted. …
8. The Claimant is permitted to serve a copy of this Order, the Claim Form and any Statements of Case subsequent correspondence or documentation on the Defendant at the email address of - … – and that this email address can be redacted from any copies of this Order subsequently served on any third party to avoid the risk of identifying the Defendant inadvertently….”
5.	 All of these provisions are, of course, in an interim order. The matter may come back before the court. It may do so, either on the application of the defendant, or on the application of some other person in accordance with provisions to that effect in the order, or at some later stage. If the matter does come back before the court any of the provisions of the interim order may be varied or removed altogether. The provisions of the Order include:
“VARIATION OR DISCHARGE OF THIS ORDER
(1) The Defendant may apply to the court at any time to vary or discharge this Order but if it wishes to do so the Claimant's solicitors must first be informed in writing.
(2) Anyone notified of this Order may apply to the Court at any time to vary or discharge this order (or so much of it as affects that person), but anyone wishing to do so must first inform the Claimant's solicitors in writing at least 2 working days beforehand.”
6.	The court has to have regard to s.12 of the Human Rights Act. This provides as follows:
“Freedom of expression 
(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. 
(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied— 
(a) that the applicant has taken all practicable steps to notify the respondent; or 
(b) that there are compelling reasons why the respondent should not be notified. 
(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; 
(b) any relevant privacy code.
7.	 I am making this order without notice pursuant to s.12(2)(b). As will appear, the compelling reason is that the facts are such as to give rise to a real prospect that, if notice is given, the defendant may take steps to defeat the purpose of the injunction.
8.	 The facts as alleged by the applicant can be briefly summarised as follows.  About ten years ago, he had two or three sexual encounters for payment.  These took place at his home.  The applicant has some public reputation.
9.	 Some two years after these encounters, the lady took an opportunity to remind him of their previous meeting. As a result the agreement was reached for consideration.  The agreement includes the sentence that:
	“This arrangement is made in confidence and neither this letter nor its terms should be disclosed by you to anybody else”.
10.	 The applicant states that that agreement was made against a background in which the lady threatened to publish information about their previous encounters unless he paid her money. 
11.	Mr Caldecott submits that the circumstances of the sexual encounters between the applicant and the lady were private and that they are matters in respect of which the applicant has a reasonable expectation of privacy.  He submits that the information described as confidential in the order is also private and personal information.
12.	 Some three weeks or so ago, on 14th August 2009, an email was received by someone acting on the applicant’s behalf (“the agent”), from a person giving a name which neither the agent nor the applicant recognise. The applicant’s case is that it may be the genuine name of the writer of the email, but it may not be a genuine name.  The response from the agent to the suggestion that the writer had a story about the applicant was that he should get in touch with the agent about it. The writer then sent another email, indicating that the gist of the story was the sexual encounters and the agreement.
13.	 The response from the agent was that there were legal issues arising out of that. The writer of the email wrote back, apparently undiscouraged. He expressed himself in terms which seem to me to be capable of being understood as a threat to publish in any event. It is on that basis that I am satisfied that there is the need for the injunction to be issued without notice.
14.	 Mr. Caldecott has very helpfully prepared a fully argued skeleton argument.  In the course of exchanges, I indicated to Mr. Caldecott that I was minded in principle to grant the order that he sought, but that I was concerned that this case raised an issue of principle.  Although it is not known what it is that the defendant is threatening to publish, the likelihood is that, whatever it is, it may well arguably be defamatory. And, on the basis of the information provided to me by the applicant, it may also be true.  
15.	 This claim is not advanced in defamation. But the established law in relation to claims in defamation is that no interlocutory injunction will be granted where the defendant is proposing to publish material that may be defamatory but which the defendant is alleging to be true.  See, for example, Greene v. Associated Newspapers [2004] EWCA Civ 1462; [2005] QB 972. The principle is better known as the rule in Bonnard v. Perryman. In para 81 of the judgment in Greene the Court said:
“We need to stress the distinction between a defamation case (where the claimant’s right to a reputation has been put in issue and the issue cannot be effectively resolved before trial) and a case which raises direct issues of privacy or confidentiality”. 
16.	 The issue of principle is whether or not the rule in Bonnard v Perryman applies to the present case, even though it is not advanced in defamation, but in confidence or privacy.
17.	Mr. Caldecott has recited in his skeleton argument (and I shall not set this out in detail) a number of well known authorities which establish the nature of the relatively new cause of action recognised by the courts to protect against the publication of information about a person’s private life.  The cases are well known, as are the principles for which they stand as authority.  They include Campbell v.  MGN [2004] 2 AC 457, Murray v. Express Newspapers [2008] EWCA Civ 446, McKennit v. Ash [2006] EWCA Civ 1714; [2008] QB 73 and von Hannover v. Germany (59320/00); (2005) 40 EHRR 1. All of those are cases which can be relied on by claimant suing in privacy in support of an application for an injunction of a kind that is now commonly granted. 
18.	 Mr. Caldecott also rightly drew attention to the exercise that is now required to be performed by the court when faced with applications which raise issues under both Article 8 (the right to protection of private life), and Article 10 (freedom of expression), namely the well known passage in the decision of Steyn L. in Re S (A Child) (Identification: Restriction on Publication) [2004] UK HL 47 at para.17.  That, in substance, makes clear that neither of these two articles has, as such, precedence over the other and the court must take into account the factors there set out in what is called the ultimate balancing test. Lord Steyn said:
“17. The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article 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.”
19.	Mr. Caldecott also referred to s.12(3) of the Human Rights Act, cited above, and to Cream Holdings v Banerjee [2004] UKHL 44; [2005] 1 AC 253.
20.	I am concerned as to whether the claim in this case is properly to be regarded as a claim to protect the applicant's privacy, or whether it is a claim brought to protect his reputation. Subject to that concern I am satisfied that this application comes within s.12(3); that is to say that the applicant is likely to establish that publication should not be allowed. The test at this interlocutory stage is the lower threshold test explained by the House of Lords in Cream Holdings at para 22.
21.	 There is also a problem, candidly set out by Mr. Caldecott in his skeleton argument, and which I have considered. It is that there are a number of authorities which suggest that the court may not give the protection of an injunction to information about sexual encounters such as have been described by the applicant to me.   One such case is A v. B plc [2003] QB 195, in particular at para.43, citing with approval the judgment of Ouseley J in Theakston v. MGN Limited [2002] EMLR 398 at para.60, where he said:
	“Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity.  A transitory engagement in a brothel is yet further away”.
22.	 As Mr. Caldecott points out, the facts here do not fit in any of the categories referred to by Ouseley J, because the encounter was at home, not in a brothel or other public place, and there is the additional feature of the written agreement.  So Mr. Caldecott submits that the claim here can properly be advanced as one which is intended to protect a legitimate privacy right.  
23.	As to whether this action is brought to protect the claimant’s right to protect private information, or whether it is brought to protect his reputation, Mr Caldecott submits that a claimant is entitled to choose his cause of action. He cites Joyce v. Sengupta [1993] 1 WLR 337, at p 342 where Sir Donald Nicholls V-C said:
“When more than one cause of action is available to him, a plaintiff may choose which he will pursue.  … He may pursue one to the exclusion of another, even though a defence available in one cause of action is not available in another. Indeed, the availability of a defence in one cause of action but not another may be the very reason why a plaintiff eschews the one and prefers the other… I have never heard it suggested before that a plaintiff is not entitled to proceed in this way… I have never heard it suggested that that he must pursue the most appropriate remedy, and that if he does not do so he is at risk of having his action struck out as a misuse of the court’s procedures”.
24.	 On the other hand, there are cases where statements have been made to the effect that it is an abuse of process, or may be an abuse of process, or that there may be other reasons why a claimant should not be granted an injunction in privacy or confidentiality, if the court takes the view that the real issue at stake is one of reputation.  
25.	Examples are discussed in Gatley on Libel and Slander 11th ed paras 22.12 to 22.13 and 27.14 to 27.23. They go back as far as Gulf Oil v. Page [1987] Ch. 327, where the court did grant an injunction in conspiracy which enabled the plaintiff to circumvent the rule in Bonnard v Perryman, but Parker LJ said at p334 that the court “would require to be satisfied that [a claim in conspiracy] was not merely an attempt to circumvent the rule in defamation”. In McKennit v. Ash Buxton LJ said that 
“if it could be shown that a claim in breach of confidence was brought where the nub of the case was a complaint of the falsity of the allegation and that was done to avoid the rules of the tort of defamation, then objection could be raised in terms of abuse of process. That might be so at the interlocutory stage in an attempt to avoid the rule in Bonnard v Perryman…” 
26.	 In some cases, applications for injunctions based on a claim in confidence and other causes of action have failed on this basis; one example of which Mr Caldecott reminded me is Service Corporation International Plc v. Channel Four Television Corporation [1999] EMLR 83, where the claims were in trespass and breach of copyright.
27.	 Mr. Caldecott submits that the present case is, in truth, a genuine claim to protect privacy, and not to protect reputation.  But it seems to me, and as I think he accepts, that that is a question that could be realistically debated at a substantive hearing of this matter in the future.  
28.	One of the uncertainties in this area of the law has been the status of reputation.  In having regard to the importance of freedom of expression, it may be important for the court to decide whether the countervailing interest is a Convention right or not. There are dicta recognised, for example, in the case of Greene v. Associated Newspapers at para 68, that reputation is an Article 8 right.  On the other hand, Mr. Caldecott submits that this is not always so, referring to the recent case of  Karako v. Hungary (39311/05).  
29.	 Mr Caldecott further submits that, if the principle in Bonnard v. Perryman would otherwise apply, it would be overridden by the agreement signed by the applicant and the lady.  Agreements are given contractual force (see, for example, His Royal Highness the Prince of Wales v. Associated Newspapers Limited [2007] 3 WLR 222).  
30.	Accordingly, I have stated that I am minded to, and I do grant the injunction sought in the terms which were set out in a revised draft, subject to the terms of undertakings which are given in that order.  
31.	It will be for the defendant and any other party who may wish to apply, if so advised, for the matter to be brought back before the court. One of the terms which I required to be inserted into the undertakings to be given includes that a note which is being taken of these proceedings be served (suitably anonymised) on the defendant, together with the claim form and application notice, and that it also be served on any other person upon whom the order is served. 	That is a form of undertaking which ought to be in any interlocutory injunction of this kind, so that the parties served know what has happened and what the judge has said and what he has been told.  
32.	 In addition, I have asked for and received an undertaking for the provision of a transcript. So the undertaking is that:
“The Claimant will provide with every copy of this Order served a suitably anonymised note of the hearing and, as soon as it is available, a suitably anonymised copy of the transcript of the ex tempore Judgment”. 
33.	 At some point, the court will have to grapple again with the question of where the principle of Bonnard v. Perryman applies, and where it does not, when an application is made on the basis of privacy, but it is an application to restrain publication of material which is arguably defamatory. The court will have to decide how the rule in Bonnard v. Perryman is to be applied in the light of such authorities as are then available as to the status of reputation as an Article 8 right and, if it is an Article 8 right, how the exercise of the ultimate balancing test referred to in Re S is to be applied on an interlocutory application.  Whether that was this case or not remains to be seen.