A privacy injunction binding on the whole world

25 April 2011 by

OPQ v BJM [2011] EWHC 1059 (QB – Read judgment

The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution.  Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case.   This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties. 

The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).

The problem to which this judgment is a potential solution arises because the law takes a different approach to “interim” and “final” injunctions.   Most privacy cases begin with an application for an interim injunction.   If granted, such an injunction will “bind” third parties who have notice of it.  This is the so-called “Spycatcher” doctrine.  This is often (though not always) the purpose of obtaining the injunction in the first place.

However, the claimant’s problem is that once the injunction is made final it loses its Spycatcher effect and binds only the defendant (see Jockey Club v Buffham [2002] EWHC 1866 (QB)).  This means that, in practice, most privacy cases are left in a state of “suspended animation”: the claimant does not wish to progress them to final judgment because if this happens the very protection against publication which was sought in the first place is no longer available.   The OPQ case provides one possible “way out” of this unsatisfactory state of affairs.


Eady J described the case as a “straightforward and blatant blackmail case” [1].  The defendants threatened to sell intimate photographs and other information relating to the claimant to Associated Newspapers.  Their representative demanded a large sum from the claimant’s solicitor.  On 29 January 2011 Cox J granted an injunction to restrain publication.  On 2 February 2011 Eady J held that the Article 8 rights of the claimant and his family were engaged and there was no public interest in publication [5].  As a result, he continued the interim injunction, which was served on the media in accordance with the “Spycatcher” principle [7].

As the defendant had no answer to the claim, the parties reached an agreement to bring the action to an end – including an undertaking not to publish [8].  At that stage, as the Judge said

“It is generally thought that once a permanent injunction has been obtained following a trial, or by consent, or an undertaking has been given to similar effect, the Spycatcher doctrine will no longer apply. That is because the court’s purpose, in holding the ring until trial, has been overtaken by events – there will be no need for a trial.” [9]

The claimant’s concern was how to proceed when the interim injunction ceased to have effect.

His solution was to seek an “injunction contra mundum”  – that is, an order taking effect against the whole world. There was an apparent jurisdictional problem – such injunctions have, traditionally, only been granted in a very limited range of circumstances.  However, in Venables and Thompson v News Group Newspapers([2001] EWHC 32 (QB)) Butler-Sloss P held that such an injunction could be granted in support of an action for breach of confidence.  She held that

in light of the implementation of the Human Rights Act, we are entering a new era, and the requirement that the courts act in a way that is compatible with the Convention, and have regard to European jurisprudence, adds a new dimension to those principles. I am satisfied that the injunctive relief that I grant should, in this case, be granted openly against the world“  [100].

An injunction was granted in that case because of the real and strong possibility of serious physical harm and death, however Eady J held that the jurisdiction was not confined but was available

wherever necessary and proportionate, for the protection of Convention rights, whether of children or adults” [18]

The judge referred to the cases of X (formerly Bell) v O’Brien [2003] EWHC 1101 (QB)and Carr v News Group Newspapers Ltd ([2005] EWHC 971 (QB)) in which contra mundum injunctions were granted to protect Article 8 rights.  He held that

there is solid medical evidence as to the health, including the mental health, of the Claimant and various family members. Their rights plainly need to be taken into account… It is clear that publicity relating to the subject-matter of the present dispute could have very serious consequences. It may well be that this is one of the main reasons why opposition was withdrawn by various newspaper groups shortly before Mr Price made his application before me [24].

He concluded that, the Article 8 rights of the claimant and other members of the public were engaged and that there was “no reason why the Article 10 rights of the Defendants or indeed of anyone else should prevail” [26].  Most importantly he noted that

in view of the clear risk of publication in the media, there is unfortunately no other means open to the court of fulfilling its obligation under the Human Rights Act to protect those rights than to grant a contra mundum injunction. [26]


The novel nature of the injunction granted in this case does not, as some media comments appear to suggest, relate to its “worldwide” nature – the English courts have always had “an unlimited jurisdiction” over persons in England and can  order such a person in England to do something – or not to do something – anywhere in the world.   Rather, what is new is the grant of a contra mundum injunction in a case where it appears that there is no threat to life or limb. This will come as a surprise to many privacy lawyers.

Keith Mathieson draws attention in his case comment on the RPC Privacy Blog, to the recently published Second Edition of the authoritative Tugendhat and Christie: The Law of Privacy and the Media (OUP, 2011) where in the chapter on “Remedies” by James Price QC, Iain Christie and David Hirst, it is said

Contra mundum orders are at the extremity of the court’s power, and would not commonly be granted in aid of a private right, except where life or limb was at risk. (para 13.35).

However, as appears from the case law discussed by Eady J, this statement (which reflects a widely held view) is too restrictive: the jurisdiction is available wherever it is necessary to protect the Article 8 rights of claimant.  Although Eady J makes specific reference to adverse impact on the “health and wellbeing of various members of the Claimant’s family” [2] (and to “solid medical evidence as to the health, including the mental health, of the Claimant and various family members” [24]) it is not suggested that such evidence is a necessary precondition to the exercise of the jurisdiction.

Although all privacy injunction decisions are fact sensitive this case opens up the possibility of final “contra mundum” injunctions being sought in many of the “ordinary” privacy cases which are currently before the courts.    If a final order does not take Spycatcher effect and if an order is necessary to protect the claimant’s Article 8 rights then the conclusion seems inevitable: a contra mundum injunction should be granted.  In terms of the applicable principles, it is not clear why the “threshold” which applies in relation to contra mundum injunction should be any higher than that which is applied to the making of a final privacy injunction against a specific defendant.

The making of contra mundum injunction is one possible solution to the Spycatcherissue.  The other possibility would be to follow hints in some of the speeches in theSpycatcher case itself (and earlier authority such as Seaward v Paterson ([1897] 1 Ch 545) and hold that “final orders” also affect third parties.  As Eady J mentions in his judgment, this issue may be determined by the Court of Appeal shortly [9].

Two further practical issues can mentioned.  The first is the extent to which a person needs to have notice of a contra mundum injunction before being “bound” by its terms.  In the case of Attorney-General v Greater Manchester Newspapers ([2001] EWHC QB 451) Butler-Sloss P held that it was sufficient if someone was “well aware of the spirit of the order” [19]   Although the position is not wholly clear, it appears that this is the same test as is applied in relation to the application of the Spycatcherprinciple to third parties.

Second, there is the question as to the variation or discharge of the injunction.  Interim injunctions invariably contain a provision which enables third parties to apply to vary or discharge the order.  This provision can be invoked where, for example, new information comes to light which provides a “public interest” in publication and changes the balance between Article 8 and Article 10.  Final orders of the court do not, in general, contain such a provision.  One should obviously be included in contra mundum orders – or in final orders which take “Spycatcher effect”.

The OPQ case has the potential to bring about a radical revision in the practice relating to privacy cases.  If followed to what appears to be its logical conclusion it would lead to the end of the twilight wolrd of the “indefinite” interim injunction and its replacement by something clearer and more straightforward.  It is a solution which will, inevitably, be controversial.

This post originally appeared on Inforrm’s Blog and reproduced here with permission and thanks.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

1 comment;

  1. Gabriel says:

    Whilst Eady J’s judgment seems to remedy the curious advantage of the claimant with an interlocutory injunction over the claimant with a favourable final judgment, it also increases concerns regarding the Article 6 rights of third parties, who can be bound indefinitely by the injunction without having had the opportunity to make representations in court. Tricky.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: