The Court of Appeal yesterday lifted a super-injunction preventing the naming of Take That’s Howard Donald but an order restraining publication of confidential information by a former girlfriend will remain in place.
Donald won the injunction in April after receiving a text message from musician Adakini Ntuli which said: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”
Before solicitors became involved, Ntuli, who is a single mother of two children of whom Donald is not the father, secured the services of publicist Max Clifford and entered into negotiations with the News of the World.
The order granted by Mr Justice Eady restrained her from doing specified but unpublishable things and prevented her and others from publishing the fact that the injunction has been obtained.
Master of the Rolls Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sedley dismissed Ntuli’s appeal seeking the discharge of the injunction but allowed her appeal in relation to the super-injunction and anonymity issues.
In the judgment, Lord Justice Maurice Kay said that Donald had never married but had had a number of relationships and was the father of two children.
During some of the time since 2000, he and Ntuli had a relationship but did not live together and its duration and intensity were matters of dispute.
Donald was also in other relationships during the same period, said the judge, and by the end of 2009, the relationship between the pair seemed to have come to an end.
He added that the injunction obtained covered “any intimate, personal or sexually explicit details about the relationship…including any facts of a sexual nature”, and another category referred to “intimate or sexual activity”.
At appeal, Ntuli’s lawyers argued that there should not have been an injunction at all and that, in any event, anonymisation was inappropriate.
Her position was – and remained – that she did not intend to publish any descriptions of sexual activity with Donald, and that Mr Justice Eady was wrong to extend the order to cover “non-sexual information” such as conversations about the nature of their relationship.
The injunction was aimed at public revelation and did not extend to discussions with close friends and family.
Dismissing Ntuli’s appeal in relation to the substantive injunction, Lord Justice Maurice Kay said that Mr Justice Eady who, he added, was “steeped in litigation of this kind”, came to the correct conclusion.
He said that the judge clearly had regard to Ntuli’s stated motives for wanting to sell her story, took into account Donald’s admissions as to his past behaviour and had proper regard to the possible impact of publicity on the parties’ respective children.
The appeal judges also dismissed a cross-appeal by Donald who said that Mr Justice Eady’s injunction did not go far enough, and should have restrained publication and disclosure of the very existence of the relationship pending trial.
Lord Justice Maurice Kay said that disclosure of the mere fact of the past relationship which, on any view, was not entirely secret, did not carry with it particularly grave adverse consequences.
Turning to the issue of super-injunctions, he commented that they attracted “understandable controversy”.
“Sometimes it is the product of more heat than light. Although the concept carries the nomenclature of novelty, there is much that is simply a reflection of general principles.”
He added that it was an “essentially case-sensitive subject”.
Plainly, Donald was entitled to expect that the court would adopt procedures which ensured that any ultimate vindication of his privacy rights was not undermined but, on the other hand, open justice required that any restrictions were the least which could be imposed consistent with that protection.
In his judgment, in view of the terms of the substantive injunction and the circumstances of the case, the appropriate restriction on publicity was one that limited reporting and publicity to what was contained in the appeal court’s judgment.
“I am simply unpersuaded that greater restriction is necessary at this stage. There is nothing in this judgment that is significantly invasive of Mr Donald’s private or family life.”
He added that what he had said in relation to the super-injunction element applied also to the question of anonymity.
Provided that publicity was limited to what was contained in the judgment – which did not detail material in respect of which Mr Donald had been found to have a reasonable expectation of privacy – there was no justification for continued anonymity.
It could not be said that lifting Donald’s anonymity might have serious consequences for his private life which might not be remediable.
He emphasised that if the case went to trial, the privacy of the hearing or parts of it would have to be revisited.
A spokesman for the Take That star said: “Howard Donald successfully obtained an injunction earlier this year against a former girlfriend who threatened to sell a story about the intimate details of their relationship to the press.
“He did this to protect his children from this kind of story and because he believes that what took place in private should remain private and not be exploited for financial gain.
“His former girlfriend appealed this decision. Howard is pleased therefore that this morning the Court of Appeal has upheld the injunction he won.”