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High Court refuses reporting restriction in a defamation claim about an alleged sexual assault

Related Member(s):
Catrin Evans QC, Emma Foubister
Related Practice Area(s):
Media and Information Law

This claim involves the second defendant’s allegation that the claimant raped her and the first defendant’s allegation that the claimant sexually assaulted her. The claimant denies the allegations and brought a claim for defamation, misuse of private information and harassment in respect of social media publications by the defendants, some of which identified the claimant as the subject of their allegations. At a pre-action hearing, without notice to the defendants, the court directed that all parties be anonymised but refused the claimant’s application for an interim privacy injunction to restrain the publications.

Held: This judgment determined the first and second defendants’ subsequent application to lift their anonymity and the claimant’s application for a reporting restriction order under s.11 of the Contempt of Court Act 1981 that neither he nor the defendants should be identified in any publications. By consent, the judge ordered that the first and second defendant’s anonymity should be lifted because they expressly waived their right to anonymity pursuant to s.1-2 of the Sexual Offences (Amendment) Act 1992 and there was no longer any risk of jigsaw identification. There was accordingly no jurisdiction for a s.11 order in respect of the defendants.

The judge refused to make a s.11 reporting restriction order to prevent identification of the claimant. She concluded that, as a s.11 order was not an interim injunction, the rule in Bonnard v Perryman should not apply, but noted the close parallel between the effect of an interim injunction and of the reporting restriction sought. She applied the test in s.12 of the Human Rights Act 1998 because the order sought was relief which, if granted, might affect the exercise of the right to freedom of expression. Weighing the respective Convention rights, she concluded that it was not necessary to make the order and could not say that it was more likely that not that the claimant would succeed in obtaining a final order at trial.

Catrin Evans QC and Emma Foubister represented the first and second defendant. They were instructed by Hodge Jones & Allen Solicitors.

Please find the judgment here.