Emphasis on need for proper evidence when seeking privacy injunctions

This story has been updated: Manchester United’s Marcos Rojo has been named as the footballer involved in an extra-marital affair

An anonymity order protecting a Premier League footballer who had had a one-night stand, despite having a long term partner and child, has been lifted by the High Court.

In YXB v TNO [2015] EWHC 826 QB, the currently anonymous footballer was originally granted the injunction, on an application without notice to the woman, to prohibit the publication of the identity of both parties.

The apparently well-known player, who is represented by Manleys Solicitors, claimed the woman had attempted to blackmail him to the amount of £100,000 to keep quiet about the affair.

Liverpool-based Cassell Moore solicitors acted for the woman to have the injunction lifted. She denied the blackmail allegation and insisted the footballer had offered her a financial incentive to keep quiet.

Allegedly, she had already been offered £17,500 for her kiss-and-tell story from a national newspaper.

At the hearing to determine whether the injunction should continue, High Court judge Mr Justice Warby found that a failure by the player’s agents to disclose a text message which was entirely inconsistent with the allegations of blackmail was ‘highly culpable’ and sufficient by itself to discharge the injunction.

‘I do not consider it likely that the claimant will establish at trial that the defendant blackmailed him,’ he said. ‘Assessing the case on the evidence now before the court the strong probability is that a court would find that the claimant’s representatives decided to buy off the defendant.’

Warby J added that: ‘the court had not been presented with any evidence that the player was concerned about his privacy for his sexual conduct but felt the application for the anonymity order had been driven by “commercial motives”‘.

The court ruled there were no grounds for the footballer’s identity to be kept secret and ordered him to pay the woman’s legal costs, estimated at £25,000.

The injunction remains in force pending any potential appeal to the Court of Appeal, which must be made by 7 April. If no appeal is lodged, or if the appeal fails, the football star’s identity will be revealed to the public.

Dominic McGinn, a partner at Cassell Moore, commented: ‘The refusal by the judge to grant a continuation of the injunction on the grounds of material non-disclosure by the claimant is a first in a privacy case. This decision brings home to the profession the duty to ensure that full and frank disclosure is given when applying for a privacy injunction.’

Lawyers say that this case emphasises the decision in Terry (previously ‘LNS’) v Persons Unknown [2010] EWHC 119 which concerned the need for proper evidence from a claimant seeking a privacy injunction.

The case shows that material non-disclosure may be a reason for discharging an interim injunction in privacy, and also a highly relevant factor in considering whether any further injunction should be reimposed.

This news story was first published on Solicitors Journal on 31 March 2015 and is reproduced with kind permission