England: judge rules footballer should be named in ‘kiss-and-tell’ story after overturning anonymity order
An English Premier League footballer who was granted a gagging order against a woman selling a “kiss-and-tell” story to The Sun has had an application to maintain his anonymity rejected by a judge at the High Court in London.
The player had claimed that the woman “blackmailed” him by demanding £100,000 to cancel a contract she had agreed to sell her story to the newspaper, but the court was told that in fact it was a friend acting on the player’s behalf who had offered her the money in a bid to “buy her silence”.
Mr Justice Warby ruled that the original injunction should be discharged and the anonymity order lifted, meaning that the woman – who said she wished to “out herself” – and the footballer should not have their identities protected.
However, the woman cannot publish photographs or video footage of the player performing a sex act which he had sent her.
The judge refused the player permission to appeal, but allowed him 10 days within which to apply directly to the Court of Appeal.
The court heard that the woman referred to as “TNO” and the player referred to as “YXB” met on 15 December 2014 at a Christmas party organised his football club.
Later that evening they went to the home of “Mr X”, a friend of the player, where the woman performed oral sex on the player.
The pair never met again, but a month later the claimant initiated an exchange of messages between the two, via their mobile phones, during which they wrote about having sex together.
YXB also sent the woman “explicit images” of himself, and video of himself performing a sex act.
In February, the woman signed a contract to sell her story to The Sun.
The newspaper approached the player’s club and his representatives discovered that it planned to publish the story.
An application was made on behalf of the claimant, without notice to the defendant, for an interim order restraining the defendant from disclosing information to the effect that a sex act took place between the two, photographs sent by the claimant, any information to the effect that he sent her naked photographs of himself, and text messages sent by him or any summary of the information contained in such messages.
A judge granted the interim non-disclosure order, an order anonymising both parties, and a reporting restriction order prohibiting the identification of either party or Mr X.
The claimant then applied to continue the orders maintaining anonymity and restraining disclosure until after judgment in the action.
Refusing to renew the injunction Mr Justice Warby said that the player had failed to make “full and frank disclosure” and that there was “material non-disclosure” in relation to the blackmail allegation, as the player failed to disclose that the £100,000 was an offer made to the woman by Mr X on his behalf and that woman had told Mr X in a message that she wanted no further offers from him.
That message “destroys any suggestion that there was blackmail at that time”, the judge said.
The case for discharging the present injunction was “compelling”, the judge said, adding that there was “little to put in the scales against it”.
Mr Justice Warby said: “In my judgment the importance of the duty of full and frank disclosure, and the seriousness of the material non-disclosure in this case, lead to the conclusion that the injunction, anonymity order, and reporting restriction granted by Walker J and continued by me must be discharged.”
The judge also refused to grant a fresh privacy injunction.
Giving his judgment, Mr Justice Warby said: “I have given careful consideration to this question, bearing in mind that the case is of the ‘kiss-and-tell’ variety, and that there is in general no public interest in the disclosure of details about matters of this kind. However, the issue at this stage is not simply whether an injunction would be granted on the evidence as it now appears, although the merits are a relevant factor.
“It seems to me that I should approach the question of whether the discharge of the existing order should be accompanied by the refusal of fresh restraints on disclosure and identification by asking myself whether the refusal of further relief would in all the circumstances be a just and proportionate response to the non-disclosure. I have reached the conclusion that it would, and that I should refuse further restraint on disclosure of information.”
He added: “The evidential picture now before the court is materially different from that which was presented to Walker J, in a number of ways. In my judgment, the evidence on behalf of the claimant at that hearing failed fully and frankly to disclose all the information which was available to the claimant and could have been put forward had proper inquiries been made, and which it was material for the court to know. It is appropriate to discharge the orders made then and continued until this hearing.
“The discharge of the past orders and the refusal of orders for the future is a just and proportionate response to the non-disclosure, having regard to the protection that there will be for the images, and the relative weakness of the remainder of the claimant’s case.”