The importance of providing full and frank disclosure in without notice applications was recently evidenced in the case of YXB v TNO ( EWHC 826 (QB)). As a result of the claimant’s material non-disclosure, the High Court discharged orders granted in the claimant’s favour and denied a privacy injunction for the future.
The claimant, a Premier League footballer, had a brief sexual encounter with the defendant in December 2014. After this encounter, the two exchanged messages with a sexual content and the claimant sent the defendant sexually explicit photographs. The defendant sold her story to the Sun on 13 February 2015, agreeing to provide her full and detailed story, alongside all evidence that was relevant to her account.
The claimant’s football club, upon being approached by the Sun in advance of the publication, made a without notice application for an interim order restraining the defendant from disclosing:
- information to the effect that a sex act took place between the two;
- photographs sent by the claimant and any information to the effect that he sent her naked photographs of himself and text messages sent by him; or
- any summary of the information contained in such messages.
The claimant maintained that any such disclosure would represent a misuse of private information and, in respect of the photos, an infringement of copyright. In support of the application the claimant maintained that the defendant had sought to blackmail him by demanding £100,000 for her silence at a meeting with the claimant’s representatives (the “Meeting”). The blackmail allegation was used to justify the without notice nature of the application, which crucially put the claimant under a duty of full and frank disclosure.
The without notice application was heard by Mr Justice Walker on 19 February 2015. He granted an interim non-disclosure order, an order anonymising both parties’ details and a reporting restriction order prohibiting the identification of either party or of Mr X, a friend of the claimant at whose house the original sexual encounter took place. The claimant applied to continue the orders maintaining anonymity and restraining disclosure until judgment in the action.
At the inter partes hearing, which took place before Mr Justice Warby, the defendant asserted that the factual position had not been fairly represented on the without notice application and that the claimant’s claim was weak generally. The defendant’s account of the Meeting was that it was Mr X who had offered her money and not her that demanded it. Critically, the defendant filed evidence that Mr X had failed to disclose a key message sent to him by the defendant, which was inconsistent with the charge of blackmail. In any event, the defendant asserted that she had a right to lift herself from the anonymity order and to disclose the information to the public, or at the very least, to her friends and family.
The evidential picture in front of Mr Justice Warby was “materially different from that which was presented to Walker J”. Mr Justice Warby held that the claimant had failed to fully and frankly disclose all the information which was available to him and could have been put forward had proper enquiries been made, and which it was material for the court to know:
“it was misleading and wrong to suggest to Walker J on 19 February 2015 that the defendant ‘is blackmailing’ the claimant, without disclosing the WhatsApp message she had sent Mr X at lunchtime the previous day, saying that she wanted no further offers. If that message is accepted at face value it destroys any suggestion that there was blackmail at the time”.
Accordingly, it was appropriate to discharge the orders made on 19 February 2015.
It was also just and proportionate to refuse such orders for the future. As well as the importance of highlighting full and frank disclosure, Mr Justice Warby was mindful that, amongst other factors:
- the defendant did not oppose the continuation of the injunction to restrain publication of the photos and video material;
- the claimant’s claim in respect of misuse of private information was weak (the claimant did not provide any evidence as to his privacy rights: “the most remarkable feature of this case is the complete absence of any evidence from the claimant”; the fleeting nature of the relationship meant that any publication would involve limited interference with privacy other than identifying the claimant as the footballer; and the application appeared to be driven by others with commercial motives);
- the claimant was unlikely to establish at trial that the defendant blackmailed him and so policy considerations of protecting blackmail victims were not of great significance to the application (“all of this material supports the conclusion that the main purpose of the meeting was to make sure that the defendant’s story did not get out, and to that end to find out how much evidence she had and what it would take to buy her silence”);
- the rights of other associated partners were not adequately relied on in evidence (the claimant’s partner/girlfriend was briefly mentioned but no substantive evidence was provided from or about her); and
- the defendant had the right to be named and, if she was named, a substantial part of the story would be in the public domain which might lead to unjust speculation and accusations against other footballers.
This case provides a useful reminder of the importance of full and frank disclosure and thorough evidence when obtaining interim injunctions. Any material non-disclosure is likely to be taken very seriously by the court and jeopardise both past and future injunctions.
This post originally appeared on the The Injunctions Blog and is reproduced with permission and thanks.
Note: The claimant footballer “YXB” was subsequently identified as the Manchester United and Argentina defender Marcos Rojo on the expiry of a temporary injunction granted pending appeal.