Brand & Anor v Szilvia Berki [2014]

In the case of Brand & Anor v Szilvia (aka Sylvie) Berki [2014] EWHC 2979 (QB) the hearing involved an application by the Claimants who sought to continue the interim injunction granted to them for anti-harassment by the Defendant which was heard before Judge Lewis on the 12th August 2014.

The facts of the case were that the Second Claimant arranged a massage from the Defendant as a Birthday present for the First Claimant. There followed a meeting at the Oxfordshire home of the Claimants between them and the Defendant but as to what happened at the meeting is in dispute between the parties. The Defendant’s massage services were not subsequently taken up by the Claimants who arranged for her to be driven home but still paid her fee. The Claimants case is that the Defendant has since that meeting unlawfully harassed them and that she will continue doing so without an injunction in place.

On the 7th June 2014 the Defendant sent emails to the Second Claimant and/or their Solicitors referring to the allegations she would make and the media she had approached, including The Sun Newspaper. She also appeared to have on the 19th June 2014 contacted the Daily Mail in an effort to make public an assault allegation by her against the First Claimant. On the 26th June she sent an email to UNICEF making serious allegations against the Second Claimant, who is one of their Ambassadors.

In the meantime, the Defendant had reported the matter to the Police claiming the First Claimant had assaulted her. They interviewed her on the 17th July 2014 and on the 25th July 2014, Thames Valley Police told the Claimants there was no case to answer and informed the Defendant accordingly. That decision appears to have influenced her into forwarding journalists, MPs and the Prime Minister a list of allegations against the Claimants which included serious criminal offences.

Mrs Justice Carr commented that since Judge Lewis’s order of the 12th August 2014, the Defendant has made many offensive and unwarranted remarks to the Claimants legal team in communications with them.

On the 5th September 2014 the Defendant applied for a general stay and discharge from the interim injunction. At the start of the hearing of the application, the Claimants, in accordance with CPR 39.2, asked for the full hearing to be held in private, which had happened earlier before Judge Lewis, stating that the hearing involved private and confidential matters and to be made public would defeat the whole purpose.
Mrs Justice Carr observed that the injunction was for harassment and not about misusing private information but the issues arising from this case were private. The allegations made by the Defendant were contained in “the Confidential Schedule” attached to Judge Lewis’s order and to make them public would attract unreasonable interference of the Claimants Article 8 rights to respect for their private and family life.

As the Defendant confirmed to Mrs Justice Carr that she would not mention any of her allegations contained in the Confidential Schedule, she allowed the case to proceed in public with the matter to be looked at again in the event of further private matters being revealed as the case unfolded. The case, however, did continue in public without the necessity of having to review it. The contents of the Confidential Schedule was, as ordered by Mrs Justice Carr, to remain private and the reporting restrictions made by Judge Lewis in accordance with s11 of the Contempt of Court Act 1981 were to continue.

Mrs Justice Carr could not see any good reason for a stay being granted to the Defendant on the facts produced to her and continued by saying that the way the Defendant continued to behave made a stronger case for these proceedings to continue. She dismissed the application for a stay commenting that it was a necessity for the hearing to proceed, as, without injunctive relief, the Defendant would most likely carry on making allegations against the Claimants.

Under s.1(1) of the Protection from Harassment Act 1997 (“the PHA”) a person must not pursue a course of conduct :
a) which amounts to harassment of another; and
b) which he or she knows or ought to know amounts to harassment of another.
A person whose course of conduct is in question ought to know that it amounts to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of another.

She was satisfied on looking at the facts of the application and the material produced to the court that the Claimants would succeed at the trial to show that the Defendant has been guilty of harassment against them and it would be most improbable for the Defendant to be able to have any defence to that.

Mrs Justice Carr referred to the balance of convenience. She found that on the evidence before her that it was quite clear that the Defendant would continue with her behaviour towards the Claimants and that Judge Lewis’s order has not prevented her from making allegations against them online. In these circumstances she observed that damages would not fix the problem, the balance of convenience is for the injunctive relief to continue until there has been a full trial. Accordingly, she granted the application for an anti-harassment order until trial or further order being made. She dismissed the Defendant’s application for a stay and disclosure.

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