In the recent case of Terry (previously ‘LNS’) v Persons Unknown ( EWHC 119 (QB)) the court addressed the inter-relationship between two principles: the principle that the court may grant an interim injunction to restrain a threatened misuse of private information where the claimant can show that his claim is (at least) more likely than not to succeed, and the rule in Bonnard v Perryman ( 2 Ch 269 (CA)) whereby the court almost invariably will not grant an interim injunction to restrain the threatened publication of a libel, that is to say, material which if published may harm the claimant’s reputation. The question arose because, although the claim was brought for misuse of private information and concerned information which ostensibly was private to the claimant, the court regarded the claim in substance as one brought to protect reputation. For this reason, the court applied the rule in Bonnard v Perryman and dismissed the application for an interim injunction.
In this two part post we argue that if the rule in Bonnard v Perryman is to operate as it did in Terry as a bar to interim injunctive relief in cases where the information at issue is private to an individual claimant but if published would also be apt to damage his or her reputation, the rule needs to be modified if a claimant under such circumstances is to have a meaningful, effective right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR).
Interim Injunctions in Defamation and Misuse of Private Information
Until recently the legal regimes governing the grant of interim injunctions in defamation cases and in misuse of private information (formerly breach of confidence) cases have operated, by and large, independently and in parallel.
In defamation cases—where the gist of the claim is that the words at issue are alleged to be defamatory (that is, tending to injure the reputation) of the claimant and, as such, presumed to be false—the common law rule in Bonnard v Perryman has long governed the availability or, more accurately, the non-availability of interim injunctive relief. The essential principle is that the court will not grant an interim injunction unless it is satisfied that if the words were published and the claimant sued for defamation a jury would be perverse to reject the claimant’s case at trial. The rule stands as an exception to the general practice governing applications for interim injunctions in civil proceedings established in American Cyanamid Co v Ethicon Ltd ( AC 396 (HL)), whereby the court considers whether there is a serious issue to be tried and, if so, where the balance of convenience or justice lies. The principle in Bonnard precludes consideration of the balance of justice and confers on the court little if any discretion. In the post-Human Rights Act 1998 (HRA) era the rule in Bonnard has survived intact. In Greene v Associated Newspapers Ltd ( EWCA Civ 1462) it withstood a challenge mounted on the footing that sections 6 and 12 HRA taken together required a judge considering an application for an interim injunction in a defamation case to ask himself whether the claimant was ‘more likely than not’ to be able to establish at trial that publication should not be allowed (that is, to ask himself the question the HRA would require him to ask if it were a claim for breach of confidence or misuse of private information; see Cream Holdings Ltd v Banerjee  UKHL 44;  1 AC 253). In reaching this conclusion the Court of Appeal indicated that it was content to assume that a person’s right to protect his/her reputation was among the rights guaranteed by Article 8 ECHR (see Greene ).
In breach of confidence cases—where, traditionally, the predicate of the claim is that the information at issue is confidential and true—the position, by contrast, is generally governed by American Cyanamid: the court has the power to grant an interim injunction restraining disclosure if that is where the balance of justice lies. In pre-HRA cases, including claims for breach of confidence, however, where ‘the decision on [the] application for an interlocutory injunction would be the equivalent of giving final judgment and, in particular, where the subject matter of the application … was the transmission of a broadcast or the publication of an article the impact and value of which depended on the timing of the transmission or publication’, the American Cyanamid test was deemed inappropriate and the court was required to assess the relative strength of the parties’ cases before deciding whether an injunction should be granted (Cambridge Nutrition Ltd v BBC  3 All ER 523 (CA)). Since the coming into force of the HRA and the designation of breach of confidence as the appropriate vehicle for the recognition of individuals’ Article 8 ECHR privacy rights in the form of the new tort of misuse of private information (Campbell v MGN Ltd  UKHL 22), the court’s power to grant an interim injunction in any case where the ‘relief … if granted, might affect the exercise of the Convention right to freedom of expression’ has been circumscribed by section 12 HRA. Section 12(3) of the Act was interpreted by the House of Lords in Cream Holdings Ltd v Banerjee ( UKHL 44) to mean that, in order to obtain an interim injunction, the claimant must ordinarily show (at least) that his claim is more likely than not to succeed at trial.
We say that these legal regimes have historically operated independently of one another ‘by and large’ because there have been a handful of cases in which the court has had occasion to consider the two together. In this line of authority the court has taken the view that a claim for (what is really) defamation has been dressed up in the guise of another cause of action, breach of confidence (See Service Corp International plc v Channel Four  EMLR 83 and Tillery Valley Foods Ltd v Channel Four  EWHC 1075 (Ch)) for instance, in an attempt to get round the rule in Bonnard v Perryman and take advantage of the relatively beneficent American Cyanamid or section 12 HRA regime.Applications for interim injunctions in which the court has formed the view that this is what the applicant is up to have been characterised as an abuse of process and dismissed. The proposition that such conduct amounts to an abuse of process received the endorsement of the Court of Appeal in McKennitt v Ash ( QB 73, para 79 per Buxton LJ).
if it could be shown that a claim in breach of confidence was brought where the nub of the case was a complaint of the falsity of the allegation and that was done to avoid the rules of the tort of defamation, then objection could be raised in terms of abuse of process. That might be so at the interlocutory stage in an attempt to avoid the rule in Bonnard v Perryman: a matter, it will be recalled that exercised this court in Woodward v Hutchins.
Recent Developments in the Law
Recently, though, there have been two developments in the law of defamation and misuse of private information which have blurred the distinctions between the two causes of action.
The first is the extension of the law of misuse of private information to information that is confidential/private and false. In McKennitt v Ash, the Court of Appeal ruled that, for the purposes of a claim for misuse of private information, the fact that some of the private information at issue was false (or might be false) was not fatal to the claim. Buxton LJ, with whom Latham LJ agreed, held that, ‘provided the matter complained of is by its nature such as to attract the law of breach of confidence, then the defendant cannot deprive the claimant of his article 8 protection simply by demonstrating that the matter is untrue’ (). Meanwhile Longmore LJ stated that:
The question in a case of misuse of private information is whether the information is private, not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry 
The second is the authoritative decision of the United Kingdom Supreme Court (In re Guardian News and Media Ltd & Others  UKSC 1), in light of the (reasonably) clear and consistent jurisprudence of the European Court of Human Rights (ECtHR) (See eg Europapress Holding DOO v Croatia  EMLR 10, para 58) that the right to protection of reputation is a right that falls within the scope of Article 8 ECHR.
The question is what if any consequences these developments have for the court’s approach to interim injunctive relief in misuse of private information and defamation cases. If, for example, false information can properly be the subject of a claim for misuse of private information, how should the court approach an application for an interim injunction where the claimant contends that the private, intrusive information that is about to be published about him is false? And if reputation is an Article 8 right, can it be right that the court should determine an application for an interim injunction to restrain the publication of material which if published would be injurious to the claimant’s reputation without investigating, evaluating or striking the balance between the parties’ competing Article 8 and Article 10 claims, without subjecting the parties’ asserted rights to the ‘intense focus on the comparative importance of the specific rights being claimed in the individual case’ mandated by the House of Lords in Re S (A Child) ( 1 AC 593, para 17 per Lord Steyn)?
In RST v UVW Tugendhat J identified the nature of the problem ( EWHC 2448 (QB))
At some point, the court will have to grapple again with the question of where the principle of Bonnard v Perryman applies, and where it does not, when an application is made on the basis of privacy, but it is an application to restrain the publication of material which is arguably defamatory. The court will have to decide how the rule in Bonnard v Perryman is to be applied in the light of such authorities as are then available as to the status of reputation as an Article 8 right and, if it is an Article 8 right, how the exercise of the ultimate balancing exercise referred to in Re S is to be applied on an interlocutory application.
The opportunity was not long in coming. As it happened, it fell to the same judge to grapple with the question that had been identified.
Terry (previously ‘LNS’) v Persons Unknown
The claimant, as it turned out after his application for an injunction was dismissed, was the professional footballer John Terry (JT), a married man, the Chelsea FC captain and (at the time) captain of the England football team. He applied for an interim injunction, without giving prior notice of his intended application to any respondent (in consequence of which no respondent appeared or was represented at the hearing of the application), seeking to prohibit ‘persons unknown’ from publishing ‘information or purported information’ and documents in four defined categories, as follows: (1) the fact that JT had an intimate personal relationship with ‘another person’, that is to say, a woman who was not his wife (and who we now know was Vanessa Perroncel (VP), the ex-girlfriend of a Chelsea team-mate); (2) details of that relationship, including the fact that VP had become pregnant and that JT had contributed to the cost of VP terminating the pregnancy; (3) information leading to the identification of JT or VP; and (4) any photographs evidencing or relating to the fact or details of these matters. JT’s claim was for breach of confidence and misuse of private information.
The application came before Tugendhat J on 22 January 2010. The judge granted a temporary injunction in the terms sought pending delivery of his decision. He gave his decision refusing an interim injunction a week later. At paragraph 6 of his judgment the judge noted that JT ‘accepts the truth of certain information which is sought to be protected by the draft order’ before commenting somewhat acerbically, ‘I do not know whether or not [the applicant] considers that those matters were acceptable for a person in [his] position in life’.
Tugendhat J summarised his reasons for reaching the conclusion that he did at paragraph 149 of his judgment. So far as concerns the topic under consideration in this article, they were as follows:
(i) there was insufficient evidence of a threat to publish photographs or sensitive details of the relationship between JT and VP (ie the matters forming the subject of categories (2) and (4));
(ii) there was a threat to publish information about the fact of the relationship (ie the matters forming the subject of categories (1) and (3)), but he was not satisfied that JT was likely to establish at trial that publication should not be allowed (ie the test in section 12(3) HRA had not been made out on the evidence before the court);
(iii) this was so principally (See the structure of paras 124–32 of the judgment) because it was likely that the nub of JT’s complaint was to protect his reputation, in particular with sponsors, and so (a) the rule in Bonnard v Perryman precluded the grant of an injunction and (b) in any event damages would be an adequate remedy for JT;
(iv) he was not satisfied that JT was likely to establish that there had been a breach of a duty of confidence owed to him;
(v) having regard to the extent to which it would be in the public interest for the material to be published, but without having heard any respondent including the media, he was not satisfied that JT was likely to succeed in defeating a defence that it would be in the public interest for there to be publication; and
(vi) he did not consider that an interim injunction was necessary or proportionate having regard to the degree of the interference with the private life of JT that would occur in the event of publication of the fact of the relationship, or that JT could rely in this case on the alleged risk of interference with the private life of anyone else.
At paragraphs 95 and 123 of his judgment Tugendhat J expanded upon his reasoning regarding reason (iii) (the reputation/ defamation issue) as follows:
 On the evidence available to me now, I have reached the view that it is likely that the nub of [JT]’s complaint in this case is the protection of reputation, and not of any other aspect of [JT]’s private life. I note that in the evidence the most [JT] is said to have expressed is ‘grave concern over the possibility of intrusion into [his] private life’. There is no mention of any personal distress … It does not seem likely to me that the concern expressed on [JT]’s behalf for the private lives of [VP] and [other] interested persons is altruistic. This claim is essentially a business matter for [JT]. This is why the assembling of the evidence has been put into the hands of the business partners and not of the solicitors. My present view is that the real basis for the concern of [JT] is likely to be the impact of any adverse publicity upon the business of earning sponsorship and similar income …
 Having decided that the nub of this application is a desire to protect what is in substance reputation, it follows that in accordance with Bonnard v Perryman no injunction should be granted. I do not know what words any newspaper threatens to publish. But it is likely that whatever is published, the editors will choose words that they will contend are capable of being defended in accordance with the law of defamation.
So, in short, so far as the court’s decision in the case was concerned, on the basis of the form and content of the evidence placed before him, Tugendhat J was prepared to draw the inference to which Buxton LJ made reference in McKennitt v Ash (at paragraph 79), namely that JT’s claim, albeit framed in terms of breach of confidence and misuse of private information, was in truth one for defamation, and in such circumstances, considering himself to be bound () by existing authority (Greene v Associated Newspapers Ltd) to apply the rule in Bonnard v Perryman, he concluded that the application fell to be dismissed.
However, ‘before leaving the topic of defamation’ and in the context of an observation that ‘it is only in limited classes of cases that the law of privacy gives rise to an overlap with the law of defamation’, Tugendhat J took the opportunity at paragraph 96 to draw up a taxonomy of factual scenarios in which there would or would not be such an overlap and to identify, where there was an overlap, how it might matter:
“In broad terms the cases may be considered in at least four different groups.
The first group of cases, where is no overlap, is where the information cannot be said to be defamatory (eg Douglas v Hello!  QB 125 (CA) and Murray v Express Newspapers plc  Ch 481 (CA)). It is the law of confidence, privacy and harassment that are likely to govern such cases.
There is a second group of cases where there is an overlap, but where it is unlikely that it could be said that protection of reputation is the nub of the claim. These are cases where the information would in the past have been said to be defamatory even though it related to matters which were involuntary eg disease. There was always a difficulty in fitting such cases into defamation, but it was done because of the absence of any alternative cause of action.
There is a third group of cases where there is an overlap, but no inconsistency. These are cases where the information relates to conduct which is voluntary, and alleged to be seriously unlawful, even if it is personal (eg sexual or financial). The claimant is unlikely to succeed whether at an interim application or (if the allegation is proved) at trial, whether under the law of defamation or the law of privacy.
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).
These obiter remarks by a judge with arguably peerless knowledge of this area of law are naturally of considerable interest, but it is perhaps significant—and not entirely surprising given the disarrayed state of the law—that what Tugendhat J does not specifically address is which test would be apposite to an application for interim injunctive relief in each of these four factual scenarios. It seems tolerably clear to us that section 12(3) HRA would supply the relevant test in relation to the first and second groups of cases. But what of the third and fourth groups – section 12(3) HRA or Bonnard v Perryman?
Godwin Busutill and Patrick McCafferty are Barristers, 5RB (Chambers of Desmond Browne QC & Adrienne Page QC), 5 Raymond Buildings, Gray’s Inn, London, UK. A fuller version of this post was first published by Hart Publishing in the Journal of Media Law  2, pp.1-13. It is reproduced with permission and thanks.