ERY v Associated Newspapers Limited

A company (“Company A”), owned by ERY, was in a business relationship with another company (“Company B”). Police officers, investigating allegations of financial crime, searched the premises of Companies A and B and interviewed ERY under caution.

On the evening of 15 October 2016, Dove J granted ERY’s application for an interim injunction against Associated Newspapers Limited (“ANL”), prohibiting ANL from using, publishing, communicating or disclosing information or purported information concerning the police’s investigation into ERY. The present proceedings concerned an application by ERY for the continuation of that injunction.

ANL’s evidence was that it wished to publish an article referring to the police’s investigation of Company A for possible financial crime. ANL did not intend to publish the allegation that ERY had been interviewed under caution (and it had conceded that, as matters currently stood, publication of that fact would engage ERY’s Art.8 right, which would not be outweighed by ANL’s Art.10 right). It stated that if its intention were to change (based on developments in the ongoing investigation), it would give ERY 24 hours’ notice before publishing anything about the interview.

Nicol J granted an extension of Dove J’s order, although it was to be amended to allow ANL to use the relevant information for its own investigations. ANL was at liberty to apply for the order to be discharged or varied on 24 hours’ notice to ERY or his legal representatives.

When considering whether to grant a quia timet injunction, the test of whether there was a “real risk” of injury was a useful one (although this may need to be refined if the nature of the feared interference was particularly serious): [41]. ANL had not given an undertaking that it would not publish the fact of ERY’s interview. However, it would be an extremely serious matter for it to resile from its stated position without giving notice to ERY: [52(i)]. 24 hours’ notice to ERY of a change in position was not unreasonable or ineffective: [52(iv)].

Nonetheless, there was a real risk of publication of the fact that ERY was under police investigation more generally: [54].

Since the proposed injunction would affect the right to freedom of expression under Art.10 ECHR, the usual principles set out in American Cyanimid Co Ltd v Ethicon Ltd [1975] AC 396 had to be adjusted, and in particular, the Court had to observe s.12 Human Rights Act 1998: [42]. This required consideration of whether ERY was likely to succeed in restraining publication of the relevant information at trial: [43].

The first stage was to consider whether ERY had a reasonable expectation of privacy in the information proposed to be published. As there was no real risk, as matters then stood, that ANL would publish the fact of the interview, it was not necessary to consider whether ERY had a reasonable expectation of privacy in respect of that specific piece of information: [65]. However, ANL had conceded that ERY had a reasonable expectation of privacy in respect of that information. It was therefore difficult to see how ERY could not have a reasonable expectation of privacy in the information that he was being investigated by the police: [65].

While in many cases there was an overlap between privacy and defamation, it could not be said that the nub of ERY’s claim was protection of reputation (although there was a reputational element to it): [67]-[68].

The second stage of the enquiry was to consider whether ANL’s rights under Art.10 ECHR were likely at trial to prevail over ERY’s rights under Art.8 ECHR. In this case, they were not: [71]; [71(v)]. ANL was not expressly prohibited from publishing matters in the public interest such as the fact that Company A was being investigated, although it was accepted that any such article would have to be written with care to avoid conveying the meaning that ERY personally was the subject of investigation: [71(i)-(ii)].

However, there was force in the argument that an injunction prohibiting ANL from “using” the relevant information would inhibit it from conducting its own investigations into ERY’s alleged crimes (and the order would be amended to reflect this): [71(iv)].

The finding that ERY’s Art.8 rights prevailed was reached independently of factors personal to ERY’s present state of health and his children. The present context was one of business activity, where stress and strain came with the job, and was not one of sexual or relationship issues where the impact of disclosure to children could be particularly acute: [71(v)].