Sophie Mitchell, representing the Claimant/Applicant in a ‘kiss and tell’ case about the threatened release of a sex tape, successfully obtained an emergency interim injunction for harassment, privacy and blackmail. Her client had been subjected to a foul campaign of online abuse and threats.
Sophie successfully sought an Order from HHJ Gosnell at the High Court in Leeds, on behalf of her client, that:
- the hearing be heard in private pursuant to CPR 39.2(3)(a), (c), (d) and (g);
- the Court anonymise the parties pursuant to CPR Part 39.2(4) and restricted access to certain private documents on the Court file (including naked photographs);
- an injunction to restrain the Defendant from harassment and misuse of his private information (that was listed in a Confidential Schedule, which included the sex video);
- an ‘unmasking order’ to compel the Defendant to disclose, inter alia, her full name and residential address, so that she could be traced for service and enforcement purposes;
- for permission to serve the Order and the Claim Form on the Defendant by email (CPR 6.15) (as her address could not be traced by a private investigator).
The application was made ex-parte (CPR 25.3(1) applied) and pursuant to s.12(2) of the Human Rights Act there were compelling reasons why the Defendant had not been notified. Practice Guidance (Interim Non-disclosure Orders)  1 WLR 1003 applied.
Sophie relied on the case of NPV v QEL  EWHC 703 (QB), which HHJ Gosnell found was on all fours with her client’s case, where it was held:
“26. In relation to the misuse of private information, I am satisfied that the Claimant is likely to succeed at trial in showing that publication of the Information should not be allowed. My reasons for this are:
- i) The Information relates to a sexual relationship, and includes messages exchanged between the Claimant and the First Defendant. The Claimant is likely to establish that he has a reasonable expectation of privacy in this information: K -v- News Group Newspapers Ltd  1 WLR 1827 .
- ii) Although each case must be assessed on its own facts, the starting point is that there is not usually any public interest justification for disclosing purely private sexual encounters, even if they involve adultery: PJS -v- News Group Newspapers Ltd  AC 1081 .
- iii) The blackmail element strengthens the claim. Such conduct considerably reduces the weight to be attached to any freedom of expression argument and correspondingly increases the weight of the arguments in favour of restraining publication: LJY -v- Person(s) unknown  EWHC 3230 (QB) .
- iv) In the ultimate balancing of the competing interests that might be advanced (see In re S  1 AC 593 ), the Article 8 rights of the Claimant are likely to prevail and a final injunction granted.
27 As regards the claim for harassment… The Second Defendant is unlikely to succeed in showing that he has a defence under s.1(3) PFHA… On the contrary, if this was blackmail then that will amount to harassment: LJY ”.