In CHS v DNH, a woman (“CHS”) with a “high public profile” was granted a non-disclosure injunction against her boyfriend (“DNH”) (or as HHJ Hodge QC predicted, “shortly to be former boyfriend”) to stop him publishing information about her relationship with a third party: “because the reasons for publication [were], on the evidence, motivated by malice entertained by the defendant towards the claimant”.
CHS had been engaged in an adulterous relationship with a married man – “Mr Y” – also a high profile public figure, at the same time as she had been conducting a relationship with DNH. DNH allegedly went through CHS’ private drawers in her bedroom whilst she was away from home and located a private journal in which she had recorded confidential details of her affair with Mr Y. DNH then took photographs of the key parts of the journal.
CHS challenged DNH for accessing her private journal and reading it despite having knowledge that the journal contained private feelings. After this confrontation, DNH told CHS that he had deleted all of the photos he had taken of the relevant extracts of the journal and the couple stayed together.
One month later, CHS left her iPad in her house and DNH used it to access her iPhone contacts. In doing so, DNH found the telephone number for Mr Y and deleted it from CHS’ iPhone. This led to another confrontation, in which DNH allegedly threatened “I want to expose you both for what you have done. I have got enough evidence to do that”. This warning caused CHS to have doubts as to whether DNH had deleted every photograph he had taken of her journal. DNH was said to be aware of Mr Y’s identity and high public profile.
CHS made a without notice application for interim injunctive relief against DNH. She claimed that the potential damage to both her and Mr Y (who was married) if the relationship became public “was enormous”; CHS stated that she and Mr Y would be irreparably damaged and face enormous financial repercussions. Mr Y was unaware of the application or the situation surrounding it.
HHJ Hodge QC agreed for the court to sit in private on the basis of three requirements in CPR 39.2:
- publicity would defeat the hearing;
- the hearing involved confidential information and publicity would damage that confidentiality; and
- a private hearing was necessary in the interests of justice.
CHS sought a non-disclosure order, engaging Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression) of the European Convention of Human Rights. In accordance with the guidance to be found of Mrs Justice Sharp in DFT v TFD  EWHC 2335 (QB), HHJ Hodge QC considered the necessary two-stage test:
- The court must determine that the information is private: HHJ Hodge QC was satisfied that the information in question was clearly private and personal information to which CHS had a reasonable expectation of privacy and confidentiality. This was evidenced by the fact that the information was deleted by DNH himself when he was asked to do so.
- The court must carry out the exercise of balancing the competing rights under Articles 8 and 10: HHJ Hodge QC noted that the relevant information was personal and private only to CHS and not to DNH. Whilst the information may have been of interest to the public, DNH had wrongfully accessed CHS’ personal and private information without her permission and “has no right to retain it or use it, still less a right to publicise it; but he has threatened to do so”. CHS’ Article 8 right clearly weighed more heavily in the balance than DNH’s Article 10 right.
HHJ Hodge QC was also satisfied that there was compelling reason not to notify DNH that the application was being made, in light of his threat to publish CHS’ private information, and that anonymisation was appropriate to ensure that the substantive order was effective. Following the guidance in H v News Group Newspapers Limited  EWCA Civ 42, HHJ Hodge QC was satisfied that the facts and circumstances of the case were sufficiently strong to justify an encroachment upon the open justice rule and that restrictions on publication could be fashioned in a way that minimised the extent of the restrictions.
CHS v DNH  EWHC 1214 (Ch)