BUQ v HRE [2015]

In BUQ v HRE [2015] EWHC 1272 (QB) (07 May 2015) Mr Justice Warby granted the Claimant summary judgment and a permanent injunction prohibiting the disclosure of private information. The Claimant was granted an injunction three years ago against the Defendant, including an anonymity order to prevent information relating to sexual matters being disclosed. This matter came before Mr Justice Warby as the Claimant applied for summary judgment.

The Claimant and Defendant were part of the same company group. The Claimant was the CEO of a large group of companies and the Defendant, the managing director of one of the subsidiary companies belonging to the group.

Mr Justice Bean granted an injunction against the Defendant in 2012. In April 2012, Mr Justice Tugendhat gave a reserved judgment varying the existing injunction to give effect to Employment Tribunal proceedings

“ruling that it was a matter of high public importance that people should have access to a tribunal such as the ET, unfettered by those against whom they might make allegations in such a tribunal; that there was no real risk that the defendant would abuse the ET’s process;”

The Defendant was unsuccessful at the Employment Tribunal, which rejected his claims that he was sexually harassed by the Claimant. Amongst the Tribunal findings relied on by the Claimant were that the Defendant had misappropriated a large sum of money belonging to the company and hidden this on financial returns and

“The defendant did not have any genuine belief in what he alleged were “protected disclosures”, but was motivated by revenge and blackmail.”

The Tribunal ordered costs against the Defendant, on the basis that he should not have brought the action. The Defendant did not appeal. The Claimant applied to make the Temporary Restricted Reporting Order permanent. The Tribunal did not grant this but allowed it to continue pending the appeal by the Claimant at the Employment Appeal Tribunal.

The appeal was allowed in March 2015 on the basis that the Employment Tribunal had made an error as they should have taken into account the Claimant and his wife’s Article 8 rights over the Article 10 rights taken into consideration. Judge Slade decided the only option was for a Permanent Restricted Reporting order to be enforced. The Defendant’s identity remained protected, even though the findings of the Employment Tribunal went against him, as his identification might identify the Claimant and his wife.

As a consequence of the decision the Claimant made a summary judgment application. The application being made with reference to those findings and that, as the Defendant did not have a defence to the claim, there was no reason why it should go to trial.

Mr Justice Warby considered the circumstances where there could be a successful defence to the Summary Judgment Application and points he had agreed with in the decision of the Employment Tribunal

“that there was no sexual harassment or abusive sexual conduct by the claimant towards the defendant. Therefore, the defendant can no longer dispute the existence of the first element of the cause of action on that basis, and he has no other answer”.

Mr Justice Warby continued that as the information was about sexual activity in private between consenting adults this would be within the protection of the law. What passed between the parties was not relevant but it was relevant that the Defendant said the matters he would disclose were true whereas the Claimant argued that some were false. Mr Justice Warby noted

“but false information can be and often is the subject of a reasonable expectation of privacy, particular when mixed up with true information. In general, the truth or falsity of the underlying facts is irrelevant: McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 [86]. Hence the grant of the interim injunctions in this case”.

He continued, in accordance with Judge Slade, that the Claimant enjoys a reasonable expectation of privacy concerning this information.

Further he considered whether there was a cause of action for misuse of private information and the rights applicable under necessity and proportionality. He agreed with Judge Slade in this respect

“The defendant’s status as a blackmailer and the claimant’s status as a blackmail victim are both established as facts by the final judgment of a competent tribunal which is binding on both parties. The claimant’s rights are to be accorded significant weight, not merely because they relate to information of an intimate, private and personal nature but also because he is a blackmail victim. As I said in YXB v TNO [2015] EWHC 826 (QB) [17]:

“Victims of blackmail or extortion deserve protection from the court; and the court must adapt its procedures to ensure that it does not provide encouragement or assistance to blackmailers.”

“The defendant’s right to speak publicly of his part in, or of what he knows of, the claimant’s sexual adventures is one that deserves little weight in striking a fair balance. He is not asserting such a right. As a blackmailer, although he has Article 10 rights, they are limited. As Tugendhat J explained in AMM v HXW [2010] EWHC 2457 (QB)”:

Mr Justice Warby further looked at the rights of others to know about the Claimant’s sexual activities which he considered could be stronger than the Claimant’s right to protect their privacy, even though the case of blackmail has been acknowledged. He continued that there are also third party rights including the Claimant’s wife and son. He agreed with Judge Slade, that the son’s right to a family life carries the most weight.

He considered the permanent injunction and noted that there was enough of a threat from the Defendant to sustain this. He did not consider the court would withhold a remedy even if the Claimant was shown to have lied in Court or there had been an abuse of process. The “facts of Summers indicates how “very exceptional” a case would need to be, to justify its dismissal as an abuse a claim on the grounds of fraud or other dishonesty”.

Mr Justice Warby then considered the Defendant’s application to commit the Claimant to prison and noted he had not followed the correct procedure provided for by CPR 81. He gave permission for the Defendant’s application to be amended with the correct procedure to be followed within the relevant time limit.

He granted summary judgment to the Claimant with a permanent injunction replacing the interim injunction.

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