JRV & ARC -v- BRG: Court confirms the ‘will you win test’ and PJS -v- News Group when granting an interim privacy injunction

The comprehensive judgment, which was handed down by Mr Justice Ritchie on 8 September 2023, granted a time limited interim privacy injunction (i) restraining publication of the confidential information of the underlying intimated claim against the Defendant, and (ii) more specifically, prohibited the Defendant from publishing details about an affair that she allegedly had with the First Claimant, JRV. Part (i) of the Judgment will also bind third parties on notice of the Order, including the Media.

Within the Judgment, the Court confirmed that anonymity had been granted on the issuance of the underlying claim brought by JRV and his wife, ARC, against the Defendant, BRG, for breach of confidentiality, harassment, invasion of their private lives and misuse of private information and costs.

The Defendant was not present at the hearing on 06 September 2023 and although the Claimants sought to have the hearing held in private, relying on the grounds in CPR 39.2 (a) that publicity of the underlying claim would defeat the object of the hearing, CPR 39.2(c) that the hearing concerned confidential information and publicity of the claim would risk that confidentiality, and CPR 39.2(g) that it was necessary for the administration of justice that the hearing be held in private, the Judge confirmed that less stringent restrictions could be applied to protect the Claimants, namely permitting the Claimants to issue the claim anonymously, and allow the hearing to take place in public. The Judge also considered that it was not necessary to refer to the underlying allegations in a way that might lead to the identification of the parties.

When considering the Court’s jurisdiction to grant an injunction, Mr Justice Ritchie referenced the ‘will you win test’ that arises from Section 12(3) of the HRA 1998. This is a ‘higher threshold than merely a “serious issue to be tried”’, but it is ‘not as high as needing the Claimant to prove he is likely to win on the balance of probabilities, but it is closer to that threshold’. Mr Justice Ritchie also referenced the opinion of Lord Nicholls of Birkenhead in Cream Holdings Limited and others (Respondents) v. Banerjee and others (Appellants), where Lord Nicholls confirmed that “Section 12(3) makes the likelihood of success at trial an essential element in the court’s consideration of whether to make an interim order”. Lord Nicholls also commented though that this might differ for some cases, such as where “the potential adverse consequences of disclosure are particularly grave”.

Mr Justice Ritchie also addressed the considerations of the Supreme Court in the well-known case of PJS -v- News Group [2016] UKSC 26, where the Supreme Court established that where a ‘kiss and tell’ is absent of any important public interest factors (with there being a distinction between what is interesting to the public and relates to matter of public interest), the publication of a ‘kiss and tell’ story will amount to misuse of private information. Mr Justice Ritchie’s use of the “will you win” test and the PJS -v- News Group is useful to practitioners when advising their clients of the likely consideration for a Court in the granting of an interim privacy injunction.