(Queen's Bench Division; Eady J; 8 November 2006)
An order against persons unknown" had been granted, following an ex parte application, designed to prevent the further dissemination of allegations about the state of the claimants' marriage, information said to be inherently confidential in character and subject to a duty of confidence. The newspapers sought the discharge or modification of the injunction on the basis that the order was framed too widely or imprecisely, and that the order did not contain a public domain proviso. It was also claimed that the claimants were not entitled to protection, either because they had by their own media disclosures forfeited any right to privacy, or because by their failure to disclose all their previous dealings with the media they had forfeited the right to injunctive relief.
There was no doubt that most people would regard the sort of information at issue as confidential; it had not been established that this particular couple were entitled to any less privacy or confidence than the general run of married couples. A distinction was to be drawn between matters naturally accessible to outsiders and those known only to the protagonists; separation would not normally be a piece of private information, whereas private incompatibilities or disputes which might have contributed to breakdown would be. It was possible to limit the scope of such an order by attaching a confidential schedule containing the specific allegations said to be private in character which it was believed would be made public unless the injunction were granted. An applicant seeking ex parte injunctive relief had to take all practical steps to reveal material which was reasonably likely to assist the respondent's probable defence at trial; this was not the same as having to dredge up everything about the claimant in the public domain. The court had to be supplied with as complete a picture as possible of the knowledge of the applicants and their advisers, rather than being given general reassurance relying on possibly partisan or incomplete information. The applicant's advocate should make a conscientious determination, in the light of the information obtained, as to which points he or she would wish to make if instructed to represent media defendants on the other side. Any such injunction should include a public domain proviso; such a term could not be implied.