65.
In my view, the case for lifting the interlocutory injunction imposed in
January 2016 has not been made out. The publication of the story and the
identification of PJS in the electronic media since January 2016 has undoubtedly
severely undermined (and probably, but not necessarily, demolished) PJS’s claim
for an injunction in so far as he relies on confidentiality. However, I am
unconvinced, on the basis of the evidence and arguments we have heard, that it has
substantially reduced the strength of his claim in so far as it rests on intrusion.
Bearing in mind those factors and the lack of public interest in the story being
published, as well as the factors mentioned by Lord Mance and Lady Hale, I
consider that the interlocutory injunction should be continued until trial (or further
order in the meantime).
66.
One argument for discharging the injunction which I have not so far
mentioned is that it may be arguable that things have got to the stage where it would
be less damaging to PJS for the story to be published in the Sun on Sunday and other
newspapers and got out of the way in one go, with all the intrusion that that would
entail, as opposed to the potential drip-feeding of the story on the internet coupled
with oblique references in the print media, often coupled with indignation at being
unable to report the story. It is very hard indeed to assess the strength of that
argument at least on the basis of the evidence which we were taken to. Further, it is
a point which was scarcely, if at all, relied on by NGN, and it is a point on which
the view and experience of PJS and his family should, I would have thought, carry
some weight. Accordingly, I am not persuaded that it should carry the day for NGN
at least at this stage.
Concluding remarks
67.
I would therefore grant PJS permission to appeal to this Court, set aside the
decision of the Court of Appeal given on 18 April 2016, and continue the injunction
granted on 22 January 2016, until trial or further order in the meantime.
68.
In summary terms this is because it seems likely that PJS will establish at
trial that (i) publication of the story in the Sun on Sunday would be an unlawful
breach of his rights, and (ii) he should be entitled to an injunction to restrain it,
because of the consequential intrusion into his and his family’s private lives. It is
one thing for what should be private information to be unlawfully disseminated; it
is quite another for that information to be recorded in eye-catching headlines and
sensational terms in a national newspaper, or to be freely available on search engines
in this jurisdiction to anyone searching for PJS or YMA, or indeed AB, by name in
a different connection. If, as seems to me likely on the present state of the evidence
and the current state of the law, PJS will succeed in obtaining such an injunction at
trial, then it follows that he ought to be granted an injunction to restrain publication
of the story in the meantime.
Page 32
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents