(Queen's Bench Division; Tugendhat J; 11 September 2009)
The man, who had some public reputation, had sexual encounters with a woman for money on two or three occasions. Some 2 years later the woman contacted the man, threatening to disclose the information unless she was paid. A confidential agreement was reached to maintain the privacy of their relationship. Some 8 years later, someone else contacted the man, claiming that the woman had disclosed the relevant details to him, and that these would be published. The man sought a without notice injunction preventing publication. The application was made not in defamation, but in confidence or privacy.
It was established law that no interlocutory injunction would be granted where the defendant was proposing to publish material that might be defamatory but which the defendant was alleging to be true. However, it was not clear whether that rule applied to a case advanced in confidence or privacy.
The court was concerned whether the claim in this case was properly a claim to protect privacy, or a claim brought to protect reputation, otherwise the application came within Human Rights Act 1998, s 12(3), that is that the applicant was likely to establish that the publication should not be allowed, applying the lower threshold test because this was the interlocutory stage. Also there was the question whether a commercial sexual relationship of this kind would be protected under the confidence laws.
Nonetheless, the interlocutory injunction was granted, as it might be important for the court, having regard to the importance of freedom of expression, to decide whether the protection of reputation was a Convention right or not, within European Convention on Human Rights, Art 8. There was also an issue as to whether the existence of the agreement would be enforced, notwithstanding the commercial nature of the original sexual relationship.