Kerner v WX & Anor [2015]

In Kerner v WX & Anor [2015] EWHC 1247 (QB) (06 May 2015) the Claimant made an urgent application to the High Court on the 22nd January 2015, for an injunction to stop two men, a photographer and his companion, from harassing her and her young son.The Claimant’s husband was convicted and sentenced for sexual activity with a 16 year old student, when he was a teacher.

The case generated media attention during the trial and sentencing, focusing attention on his wife and son. In the morning of 22nd January the two men had been watching the Claimant’s home and photographs were taken of the Claimant, her son and their home.

Mr Justice Warby considered the behaviour of the men to be harassment, particularly as he noted the husband was not then living at the family home.

He granted the injunction against the Defendants, referred to by capital letters, persons unknown. His order referred to the Claimant and her son as “Protected Persons” including a prohibition on harassing them, photographing or videoing them, their vehicles, any home belonging to them, lingering within the exclusion zone, 100 metres from the family home and actively following them.

The Claimant gave an undertaking she would do everything she could to ascertain who the Defendants were. She had their car registration number and photographed them.

The return date of the injunction was the 29th January 2015. The Claimant asked for it to carry on until trial or another order being made. The Defendants did not appear at the hearing. The Claimant submitted a further witness statement confirming she had carried out the requirements in her undertaking. She had given notice of the injunction to three newspaper groups, with no reply from them. She contacted DVLA in respect of the car registration but had not received any information from them.

Mr Justice Warby considered the injunction should continue until trial or another order being made. He asked the Claimant to undertake that, should she be unable to identify the Defendants within three months of his order being made she would apply to the court for a Judge to give directions to how the matter should proceed.

On the 27th April 2015 the application for directions went before Mr Justice Warby and a third witness statement from the Claimant. She requested an order for the DVLA to give her Solicitors details of the car registration, to be supplied within 28 days of the order and the Injunction of the 29th January to carry on.

Mr Justice Warby observed that the existing Injunction of the 29th January 2015 was made to continue to trial or for another order to be made, but, circumstances had changed, the husband of the Claimant had returned to the family home, he might benefit from the protection in the injunction, it was correct this had been raised.

He observed whether the protection should be afforded to the husband who was convicted of the offence and had not made any complaint against the Defendants. He considered the terms of the order should be balanced between the individual right to be protected against harassment, the right to enjoy a private and family life coupled with others’ rights, including the media, to comment on and receive information which is of public interest.

As long as the injunction continued to protect the Claimant and her son, just because the husband also gained that protection, was no reason to discharge the order. There was no prohibition to photograph or video the husband when he was alone but he emphasised that this did not mean he could be harassed.

In the Claimants third witness statement she said she had been deputy head in a primary school but because of media interest and pressure had to leave. Mr Justice Warby believed there was evidence to continue with the order to protect the Claimant and her son.

With regard to the application for disclosure he believed this should be served on the DVLA. The Claimant had given the court a certificate of service and copy emails and noted the DVLA would not oppose any order or attend the hearing.

Counsel for the Claimant relied upon CPR 31.17, an Order for disclosure against a person who is not a party to the action. The application must be backed up with evidence, the documents will either support the person making the application or be adverse to the case of one of the other parties, where disclosure is needed to dispose fairly of the matter or save costs.

The statutory provisions applicable to this matter fell with s.34 of the Senior Courts Act 1981. Mr Justice Warby had to decide whether the documents met the three conditions of CPR31.17 and s.34 of the Act.

He made an order under CPR31.17 for disclosure of the documents by the DVLA. He noted that DVLA had not sought an order for costs of compliance and considered that an undertaking or order to that effect might be appropriate in comparison to when a Norwich Pharmacal Order is made against an innocent party.

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