On 7 October 2010 Mr Justice Tugendhat handed down judgment in the privacy injunction case of AMM v HXW [2010] EWHC 2457 (QB).  This was the return date of an injunction which had been granted on 21 September 2010 by Mr Justice Edwards-Stuart.  On 4 October, there was the return date hearing where the claimant, who was anonymised,  sought to continue the injunction until trial  to  restrain publication of allegations of an affair. Mr Justice Tugendhat decided that he would extend the injunction until trial and also the anonymity order, with reasons to follow.  

On 7 October 2010 the judge he handed down judgment explaining why he continued the injunction until trial or further order and why he had continued  the anonymity order.  In this case (unlike the decision in Terry v Persons Unknown), the claimant denied the allegations of an extra-marital affair and further filed evidence that the Defendant was seeking to blackmail him. It was therefore a claim in “false privacy”, which we have discussed a number of times recently. The case therefore potentially came within the category of a disguised libel action.

In Terry this category of case was discussed in the following terms;

“The fourth group of cases, where it may make a difference which law governs, is where the information relates to conduct which is voluntary, discreditable, and personal (eg sexual or financial) but not unlawful (or not seriously so). In defamation, if the defendant can prove one of the libel defences, he will not have to establish any public interest (except in the case of Reynolds privilege, where the law does require consideration of the seriousness of the allegation, including from the point of view of the claimant). But if it is the claimant’s choice alone that determines that the only cause of action which the court may take into account is misuse of private information, then the defendant cannot succeed unless he establishes that it comes within the public interest exception (or, perhaps, that he believes that it comes within that exception).”

However, in the AMM judgment there was no mention of these issues or of the Terry case.  It is not clear whether these issues were discussed at the hearing.  The Judge decided to continue the injunction on the following basis:

There is credible and uncontradicted evidence from the Claimant that the Defendant has threatened to disclose information about his private life, in particular about his sexual life, which the public has no right to know, and which the Defendant has no right to publish or disclose. Injunctions prohibiting the disclosure of information about a marriage and about sexual relationships have been granted by the courts since at least 1967: see Argyll v Argyll [1967] Ch 302; Stephens v Avery [1988] 1 Ch 449. They have become more frequent in recent years. Such injunctions may be granted whether the information threatened with publication is true or false: McKennit v Ash [2007] EWCA Civ 1714; [2007] EMLR 113″ [14]

This approach is consistent with the Court of Appeal decisions  in McKennitt v Ash and ASG v GSA [2009] EWCA Civ 1574.

In relation  to anonymity the Judge held that the court’s decision whether or not grant anonymity to a party or witness to proceedings could not be an exercise of a discretion, but must be a matter of obligation: a judge will either have a duty to make an anonymity order, or a duty not to make one. In this case Mr Justice Tugendhat held:

In my judgment, the need to have regard to the Art 8 rights of the Claimant, and to promote the public interest in preventing and punishing blackmail are both factors which weigh strongly in favour of the grant of an anonymity order. There is a strong case that Defendant has no right to publish the information which she seeks to publish about her relationship with her former husband. On this view her Art 10 rights are not strong. And as an alleged blackmailer, her Art 10 rights are much weaker. If the Claimant fails at trial to establish any part of his case, then position of the Defendant and her rights will fall to be considered afresh.[49]

It is interesting to note that Mr Justice Tugendhat was concerned about the possibility of “jigsaw identification” by the media, like Mrs Justice Sharp in the recent case of DFT v TFD ([2010] EWHC 2335 (QB)) to which there were a number of references in the Judgment (we have discussed the DFT case in a previous post here). The Judge said that although an  article in the “Daily Mail” (which was published after that newspaper had been served with the order and before the return date) was not in breach of the original order,  it did nevertheless reveal information which was the subject matter of the action.   The Judge held:

“In the present case, the article published in the issue of the Daily Mail dated 30 September discloses some of the important items of information which are the subject of the action.” [22]