Terry v Persons Unknown [2010] EWHC 119 (QB)

John Terry, a high‑profile professional sportsman, sought a wide, largely secret interim injunction to prevent publication of information about a personal relationship. Tugendhat J refused to continue the order, emphasising open justice, the Bonnard v Perryman rule, and rigorous Article 8/10 balancing in privacy injunctions.

Facts

The applicant, John Terry (initially anonymised as “LNS”), a well‑known professional sportsperson with substantial sponsorship and endorsement arrangements, applied urgently for an interim injunction against “Persons Unknown”.

He sought to prevent publication of information in four broad categories: the fact of a specified personal relationship (“the Relationship”) with another named individual; details and consequences of that relationship; information leading to identification of either party; and any related photographs (para 6). The evidence accepted that some of the information was true (para 7).

The application was brought late on Friday 22 January 2010 without notice to any respondent or media organisation, although News Group Newspapers (NGN), publisher of the News of the World, was identified in the evidence as having an interest in publishing a story (paras 2, 20, 46, 114). Tugendhat J granted a holding order after a private hearing, but only until he could give a reasoned decision (para 3).

The evidence was presented via the applicant’s solicitor, using an exhibit largely sourced from two “business partners” rather than from Terry or the other person directly (paras 27–33). The other person had signed a brief side letter and a more formal confidentiality agreement, in which that person expressed a wish to keep information about the alleged relationship private (paras 29–30). The judge was concerned about the indirect and commercialised nature of the evidence, and whether it fully and frankly represented the wishes and position of those other individuals (paras 31–36).

The evidence suggested that rumours of the Relationship were already “rife” within the relevant sporting community, and that many people within that world knew the fact and at least some details of it (paras 45–47). There was a single hearsay reference to the possibility that the media had photographs, but nothing concrete about their nature or imminent publication (paras 45, 65).

Terry also relied on the privacy interests of the other person and certain “interested persons” (e.g. family members), none of whom were parties to the claim (paras 12, 37, 66–67). The judge noted that Terry’s income from sponsorship and endorsements, and the sensitivity of sponsors to reputational issues, were part of the context (paras 32–33, 39, 95, 131).

Issues

Substantive causes of action

The application advanced two substantive causes of action (para 48):

• Breach of confidence.
• Misuse of private information.

The judge also considered whether, in substance, the complaint was one of defamation, engaging the rule in Bonnard v Perryman and its interaction with privacy and confidence (paras 74–83, 95–96, 123).

Human rights and public interest

The core human rights issues were:

• How to balance Article 8 (privacy, reputation and family life) and Article 10 (freedom of expression) under the “ultimate balancing test” in Re S (A Child) (paras 1, 56–63).
• The impact of section 12 of the Human Rights Act 1998, in particular the requirement that the applicant be “likely to establish that publication should not be allowed” before any pre‑trial restraint on publication (paras 58, 121–122, 125).
• Whether any public interest defence based on preventing the public from being misled, or wider scrutiny of the conduct of a prominent public figure, might justify publication (paras 8, 43–45, 56, 59–61, 68–70, 97–105).

Procedural and open justice issues

The draft order sought extensive derogations from open justice and the Civil Procedure Rules (paras 16–18), including:

• A fully private hearing and anonymity for those involved.
• Sealing of the entire court file.
• A prohibition on publishing the existence of the proceedings (a “super‑injunction” element).
• No return date, and an effectively open‑ended extension of time for serving the claim form on persons unknown.
• Exemption from the obligation to supply third parties with the materials read by the judge or a note of the hearing (contrary to CPR PD 25 para 9.2).

The court had to decide whether:

• The combination of these derogations was compatible with Article 6, the principle of open justice, and the requirement to notify those whose Article 10 rights would be affected (paras 16–25, 106–110, 112–120).
• The lack of notice to NGN and other media was justified under HRA s 12(2) and CPR 25.3 (paras 18, 110–120).

Judgment

Breach of confidence

The judge held that Terry was not likely to establish breach of confidence. While the fact of the Relationship had spread within the sporting community, there was insufficient evidence of specific confidential disclosures from which to infer a breach of a duty of confidence owed to Terry (paras 49–52). There was no evidence that any photographs were produced or shared in circumstances importing a duty of confidence (para 52).

Misuse of private information

On misuse of private information, the judge accepted that Terry could arguably have a reasonable expectation of privacy in respect of intimate details or intrusive photographs (paras 54–56, 65, 69). However, he drew a critical distinction between:

• The mere fact of the Relationship and relatively unintrusive details.
• Highly intrusive details and photographs.

He found that there was only a real and evidenced threat to publish the fact of the Relationship and unspecified low‑level details (paras 65, 68). There was insufficient evidence of any real threat to publish intrusive details or photographs; any case on this point was largely inferential (paras 11, 14, 45, 65, 69).

Applying section 12(3) HRA, he was not satisfied that Terry was “likely” to establish at trial that publication of the fact of the Relationship should not be allowed, particularly given the potential public interest arguments and the applicant’s own past public statements about personal relationships (paras 43–45, 56, 68, 70–73, 121–122, 125). He also noted that the information had already circulated widely within the relevant milieu, reducing the proportionality and necessity of any injunction (paras 47, 65, 97–100, 128–130).

By contrast, the judge accepted that, if a real threat to publish intrusive details or photographs were shown, such material would likely be restrained as unjustified and disproportionately intrusive (paras 11, 69).

Defamation, reputation and the Bonnard v Perryman rule

The judge considered whether the substance of the complaint was reputational rather than privacy‑based. He noted that the information, if published, would be capable of lowering Terry in the estimation of right‑thinking members of society (para 9), and that the evidence suggested his primary concern was the impact on his sponsorship and commercial reputation rather than personal distress (paras 32–33, 39, 95–96, 131).

He reviewed the classic definition of a cause of action (para 74) and the principle that the court will not grant prior restraints on defamatory publications where the defendant asserts an arguable defence of justification, fair comment or qualified privilege, in line with Bonnard v Perryman and later authorities (paras 75–83). He pointed out that a claimant cannot avoid this rule simply by re‑labelling a reputational claim as one for breach of confidence or misuse of private information (paras 78–80, 83–90, 93–96).

On the evidence, he concluded that “the nub” of Terry’s complaint was to protect his reputation, particularly with sponsors, and that the court must therefore apply the Bonnard v Perryman rule (paras 95–96, 123). Given that any newspaper was likely to choose words which it could seek to justify or otherwise defend under defamation law, an interim injunction should not be granted (para 123).

Open justice and procedural safeguards

On the extensive derogations from open justice and ordinary procedure, Tugendhat J strongly reaffirmed the constitutional importance of public hearings and transparency, quoting Lord Woolf MR in R v Legal Aid Board ex p Kaim Todner (para 106). He stressed that Article 8 does not have presumptive priority over Article 6 and that each derogation from open justice or adversarial fairness must be justified under rigorous scrutiny (paras 1, 21–25, 106–109).

He criticised the failure to notify NGN despite clear evidence that it intended to publish a story and had a specific interest in the outcome of the application (paras 46, 114). He also noted the importance of giving notice to media organisations on whom Spycatcher‑type orders are to be served, following Eady J’s guidance in X v Persons Unknown (paras 18, 112–120). Letters from The Guardian and Mirror Group’s solicitor (Mr Partington) illustrated wider media concerns about the growing use of secretive, broad privacy injunctions against persons unknown (paras 115–120).

The judge held that there was no proper evidential basis for prohibiting reporting of the existence of the order (the “super‑injunction” aspect) beyond the limited scenario of preventing temporary “tipping off” before service, and that in any event such provisions should normally be tied to a return date (paras 137–141). He drew a contrast with exceptional national security cases engaging Articles 2 and 3, where more extensive secrecy might be justified (para 142).

He further held that any order made without notice should have a return date, both to permit adversarial argument and to scrutinise the evidence and the progress of service on defendants (paras 20, 22, 134–136). He indicated that indefinite extensions of time for service on persons unknown would not be acceptable and that proceedings must be managed expeditiously (paras 17, 20, 136, 143–146).

Evaluation of evidence and third‑party rights

The judge was troubled by the form of the evidence, which relied heavily on hearsay from business partners rather than direct statements from Terry or the other person (paras 27–36). He doubted whether he had been given full and frank disclosure, particularly in relation to prior media interviews and self‑publicity, which might support a public interest defence (paras 40–45, 95).

He also questioned whether Terry was an appropriate champion of the Article 8 rights of the other person and various interested persons, emphasising that respect for personal autonomy requires, where practicable, that individuals speak for themselves and that Terry lacked the necessary independence to represent their interests (paras 12, 34–37, 66–67, 95, 150).

Application of s 12(3) HRA and discretion

Applying Cream Holdings v Banerjee, the judge held that, save for short‑term holding orders in exceptional cases, applicants must generally show that they are more likely than not to succeed at trial before an interim restraint is granted (paras 121–122). He had applied the lower, short‑term threshold when making the initial ex parte order, but on fuller consideration concluded that Terry’s prospects were not sufficiently favourable (paras 3, 121–122, 125).

Even if the section 12(3) threshold had been met, the judge stated that he would not have exercised his discretion to grant an injunction because the potential adverse consequences of publication were not “particularly grave” on the specific facts, given the applicant’s robust personality, the extent of pre‑existing circulation of the rumours, and the availability of damages for any commercial loss (paras 127–132).

Implications

This decision is a significant authority on privacy injunctions, especially applications made without notice and targeted at media organisations. It confirms that:

• Open justice and adversarial fairness remain fundamental; “super‑injunction”‑type orders and sealing of files require specific and compelling justification, even in privacy and confidence cases (paras 16–25, 21–24, 106–110, 137–141).
• Where the real substance of a complaint is reputational, the court will apply the Bonnard v Perryman rule and refuse prior restraint if a defendant has any realistically arguable defamation defence (paras 74–83, 88–90, 95–96, 123).
• Under section 12 HRA and Cream Holdings, interim privacy injunctions require the applicant to show that he is likely to succeed at trial in establishing that publication should not be allowed, save in truly exceptional, short‑term cases (paras 58, 121–122, 125–126).
• Courts will distinguish between relatively low‑level information (such as the mere fact of an adult relationship) and highly intrusive detail or images, and the evidential burden of showing a real and imminent threat is critical (paras 11, 14, 65, 68–69).
• Applicants cannot use misuse of private information or breach of confidence to circumvent the safeguards developed in defamation or to secure long‑term, effectively final relief without trial, particularly where the real aim is to protect commercial reputation (paras 78–81, 88–90, 95–96, 123, 131–132).
• Media organisations should normally be notified in advance if they are to be bound by privacy orders under the Spycatcher principle, and courts will scrutinise attempts to avoid such notice (paras 18, 112–120).

The case has been widely regarded as a leading example of judicial reluctance to grant or continue far‑reaching, secretive interim privacy injunctions in favour of public figures, and as a practical guide to the evidence, procedure and balancing exercise required in Article 8/Article 10 disputes.

Verdict: The High Court declined to renew the interim injunction and refused to make any of the orders sought by the applicant.

Source: Terry v Persons Unknown [2010] EWHC 119 (QB)