YXB v TNO (No 2) [2015]
In YXB v TNO (No 2) [2015] EWHC 826 (QB) the Claimant, a professional premiership footballer and the Defendant met at a Christmas party held in a club. During the early hours of the next morning, the 16th December 2014, the Defendant performed a sexual act on the Claimant.
Since that time they had not seen each other but the Claimant made contact with the Defendant and started exchanging messages with her. The Defendant, in response, suggested they have sex and the Claimant, in turn, sent her messages which included explicit photographs of his anatomy together with a video.
The Defendant then contacted The Sun on Sunday with a story of what she said happened between them. On the 13th February she signed a contract with the publishers of the newspaper about her experiences with the Claimant confirming she would provide all details including photographs etc.
In the meantime, on the 19th February 2015, the Claimant made an application, without giving the Defendant notice, for an interim order to be made to prevent her revealing details of their sexual liaison, including releasing photographs, reasoning that this would be a misuse of private information and breach of copyright.
The Claimant alleged the Defendant had attempted to blackmail him for £100,000 to buy her silence which he relied upon as the reason being for not serving her with notice of the application and to support the interim injunction being granted.
Justice Walker granted an interim non-disclosure order which banned the identities of both parties being revealed with a reporting restriction prohibiting their identities being made known and that of another party, referred to as Mr X, who had acted on behalf of the Claimant when dealing with the Defendant.
The newspaper printed the story in their issue of the 22nd February 2015 with a headline alluding to a star in the premiership being blackmailed for £100,000 in relation to a sexual matter. The story read that the footballer and a woman had met, had a sexual liaison and then the woman had tried to blackmail the footballer. Nothing was revealed in the story as to the names of parties, details of any messages between them or anything else.
The Claimant’s application to continue with the interim non-disclosure order went before Mr Justice Warby on the 26th February 2015, which application was adjourned until the hearing before Mr Justice Warby with the order made by Justice Walker continuing.
During the period from the 26th February 2015 to this hearing date of the 16th March 2015 the Claimant had served particulars of claim on the Defendant who had in response filed evidence following which the Claimant then filed his evidence.
Mr Justice Warby had to consider all the issues in the matter:
- (a) whether the orders of 19th and 26th February should be discharged for non-disclosure by the Claimant. The Defendant contended that the sexual encounter between them was not private. The blackmail accusation against her which the Claimant’s representative, “Mr X” had been aware of and where he, the Defendant alleged, failed to inform the Claimant of a very important message she had sent to him, which was contrary to the accusation of blackmail against her.
- (b) whether there should be a privacy injunction in the future
- (c) to assess the position should the Defendant contend that there was not sufficient argument for an anonymity order
- (d) in any event the Defendant may seek a lifting of the order to allow her to discuss the matter with her friends and family submitting that in its current form it was unreasonable.
Mr Justice Warby examined all the evidence before him in great detail which he considered to be vastly different from the hearing before Judge Walker when he granted an interim non-disclosure order for the Claimant. He considered that at that hearing the Claimant had not disclosed in full and frank detail all the matters available to him and which the court should have been made aware of.
- “it was misleading and wrong to suggest to Walker J on 19 February 2015 that the defendant ‘is blackmailing’ the claimant, without disclosing the WhatsApp message she had sent Mr X at lunchtime the previous day, saying that she wanted no further offers. If that message is accepted at face value it destroys any suggestion that there was blackmail at the time”.
He accordingly found that the orders made then should be discharged and continued up to the hearing before him.
Mr Justice Warby considered it inappropriate to exercise the court’s discretion to grant fresh orders and noted that this was the just response to the non-disclosure particularly with regard to the shortcomings in the rest of the Claimant’s case.
At the expiration of the temporary injunction, which had been granted by Judge Walker and whilst awaiting the appeal, the Claimant’s name and details were released to reveal that he was Marcos Rojo of Manchester United.
A cautionary reminder of the importance of full and frank disclosure and thorough evidence when obtaining interim injunctions. Such material non-disclosure is likely to be taken very seriously by the court and put at serious risk both past and future injunctions.