Three takeaways from the three applications in Tooley v Times Media Ltd [2026] EWHC 675 (KB)

Interim applications in media cases often expose the fault‑lines between reputation, privacy and freedom of expression. In this first judgment in Cynthia Tooley MBE’s action against Times Media Ltd (Tooley v Times Media Ltd [2026] EWHC 675 (KB) (23 March 2026)), Mrs Justice Steyn reasserts the distinctions between these causes of action. 

The claim had started life as an action in defamation but had expanded to include misuse of private information (“MPI”) and breach of confidence (“BOC”), with one of the applications under consideration being an amendment to “clarify” that relief for defamation was only sought in the alternative. Two further applications were made by the Claimant for (i) an interim injunction “primarily on the grounds of misuse of private information and breach of confidence, and in the alternative defamation”; and (ii) Norwich Pharmacal relief to identify the source of a video leaked to the Times and forming the basis of the central offending Article. 

This judgment illustrates the missteps that can prove decisive long before trial: where amendments are regarded as indicative, not of an evolving and developing legal position, but of strategic repositioning.

1. Judicial scepticism of “cause of action shopping” at the injunction stage 

One of the clearest messages within the judgment is its robust treatment of re‑framing defamation claims as MPI/BOC claims in an attempt to escape the Bonnard v Perryman rule ([1891] 2 Ch 269). Defamation can’t be disguised as misuse of private information or breach of confidence, and applications for interim injunction will be regarded with particular caution.

Steyn J is explicit that, where prior restraint is sought, the court will look past labels to the substance of what a claimant is trying to protect by way of injunction: is it reputation, or is it privacy? 

The Court brought together a line of authorities addressing the relationship between defamation and privacy-based claims. This included LJY v Persons Unknown ([2017] EWHC 3230 (QB)), in which Warby J emphasised the need to identify the true nature of the rights said to be infringed, as well as McKennitt v Ash ([2006] EWCA Civ 1714; [2008] QB 73), where the court warned against deploying confidentiality and privacy doctrines as indirect substitutes for defamation remedies. 

Steyn J was interested in a holistic assessment of the commercial and forensic reality of the Claimant’s position, and divined important context from historic correspondence. It is striking  how forensic the Court was willing to be in consideration of the Claimant’s litigation history (here, the original letter of claim, the first pleading iteration, hearing transcripts, and the relief sought). The Claimant’s actions did not reflect a developing understanding of the causes of action available to her, and contemporaneous correspondence tended to confirm that it was the Claimant’s reputation – not her private information – that the injunction sought to project.  

2. The Bonnard v Perryman bar remains high

The judgment confirms that Bonnard v Perryman continues to operate as a substantive barrier wherever prior restraint has reputational harm as its raison d’être. 

Even though an MPI action would ordinarily engage only s.12(3) of the Human Rights Act 1998 and consider whether the claimant is likely to establish at trial that publication should not be allowed, the stricter rule in Bonnard v Perryman prevails if reputation is, in substance, the objective being pursued. In those circumstances, the court will only grant interim injunction upon satisfaction of the following conditions (set out in Gatley on Libel and Slander):

1. The statement is unarguably defamatory; 
2. There are no grounds for concluding the statement is true; 
3. There is no other defence which might succeed; and 
4. There is evidence of an intention to repeat or publish the defamatory statement. 

The decision re-emphasises the established and deliberately exacting requirement that a claimant seeking an interim injunction to prevent reputational harm must demonstrate that they are effectively bound to succeed at trial and there exists no realistic prospect of a defence. Modern privacy principles sit alongside, rather than displace, the defamation protections.

It is also worth noting that the Court restated the principle that injunctions must be capable of real-world effect. Prior publication of the information contained in the central Article was highly material to the practical effect of the proposed injunction. The Claimant’s recorded view that “the horse is well and truly out of the stable” was deployed against her as evidence that the information she sought to restrain was already in the public domain. 

3. Norwich Pharmacal relief against publishers must be exceptional 

Obtaining Norwich Pharmacal disclosure from a media organisation remains an exceptional remedy, particularly where the order would intrude upon journalistic source protection.

Establishing an arguable wrongdoing in which the third party it mixed up is merely the starting point of the analysis. A claimant may be able to demonstrate a credible case that confidential information has been misused or unlawfully disclosed, but that alone will not justify compelling a publisher to reveal the identity of its source. 

Necessity often is (and was here) the real battleground in Norwich Pharmacal applications involving the press. The existence of alternative means of identifying the alleged wrongdoer may be sufficient to defeat the application and mere uncertainty as to the source of a leak, or a preference for obtaining confirmation from a publisher, will not be enough. The Claimant needed to, and could not, demonstrate that realistic alternative routes have been exhausted or were genuinely unavailable to her.

Further still, section 10 of the Contempt of Court Act 1981 (protection of confidential sources) continues to be a formidable obstacle to disclosure applications directed at the media. Steyn J emphasised that the statutory protection is not a procedural formality but a substantive safeguard requiring compelling justification before disclosure will be ordered.