NNN v D1 & Anor [2014] EWHC B14 (QB)

In NNN v D1 & Anor [2014] EWHC B14 (QB) the Claimant was involved in a deeply private and extremely confidential discussion with a person referred to as “X” who lived in a flat within a house that had been converted into flats. The discussion between them took place in the hallway of the house.

Whilst they were talking another party, D2, overheard their conversation which he recorded and passed on to D1. Later on D1 contacted the Claimant and “X” asking for a large sum of money to prevent the recording being made public.

Judge Maloney explained in his judgment why the proceedings were held in private and why the Claimant remained anonymous.

His reasons were that the proceedings centred on the Claimant’s private life relating to confidential matters and which confidentiality, would not be safeguarded if the matter was held in open court. This reasoning deviated from the fundamental principle that whenever it can, justice should be seen to be done in open court.

Further, the Defendants asked for large sums of money from the Claimant so as not to reveal to the public the recording made by D2 of the Claimant’s private conversation with “X” in the hallway. Judge Maloney said this was clearly blackmail or very near to that and, as such, it is recognised within the law, victims receive anonymity so as to urge anyone in the same position to come forward and report the matter.

Judge Maloney referred to an earlier judgment made by Sharp J which was held in open court. In that judgment she gave a summary of the law which governs anonymity which Judge Maloney adopted together with her judgment which had detailed why interim relief had been given.

On the 21st July 2014 Judge Maloney heard three applications.

D1 applied to set aside a default judgment which had been made by Master Cook on the 25th May for his non-compliance with an “unless order” which Master Fontaine had issued on the 7th April 2014, where D1 had to give disclosure by 21st April 2014. It came to light, however, that D1 had filed his list of documents very soon after the 21st April, which had been a bank holiday. He had not served it on the Claimant’s Solicitors but Master Fontaine’s Order had been confusing as to this point. Also his documentation did not reveal anything of any overall importance due to his lesser role in the matter. As such Judge Maloney found this to be a relief from sanction matter in line with the recent case of Denton v White 2014.

The second was the Claimant’s application for summary judgment. Judge Maloney had to decide whether there was any dispute as to the facts of the case which had to be determined before the injunction for the Claimant could be considered.

The Claimant’s application against both of the Defendants was for a permanent injunction. D2 had not sought to have the default judgment against him set aside and had not been part of the proceedings before Judge Maloney or been present in Court.

Judge Maloney noted that D1 had only listened to the recording but had not been present at the time. Both he and D2 admitted all the main issues in the Claimant’s claim against them. D1 did put forward some issues which, if he had been successful with them, could have lead to the Court refusing the injunction. They were:

  • had “X” discussed the conversation she had with the Claimant with a small group of other people
  • had their initial discussion in the hallway been very loud and boisterous through drinking which could easily have been overheard by others and as such, there could be no expectation of privacy
  • was the very confidential material imparted by the Claimant to “X” liable to show him to be a hypocrite and therefore should be divulged and
  • should D1’s behaviour be likened to blackmail since he had reported the matter to the Police who did not take any action or did he and D2 have rights to the information imparted by the Claimant to “X”.

Judge Maloney, due to the confidentiality of the proceedings, could not set out details of the evidence but he reached his conclusions with reference to the well-established principles set out in Ward LJ in K v News Group 2011.

Judge Maloney said that even if “X” had told a small group of people there is no evidence that the Claimant consented to this and therefore further disclosure would cause damage to the Claimant.

He continued that it was clear from that before him, the Claimant and “X” were holding a private conversation in the entrance hall where “X” resided, the house where she had a flat. The nature of their conversation was such that it would be obvious that they were discussing a very private matter, not to be imparted to others. As the Claimant is not an authority figure or a person looked to as an example for others to follow, there should be no interest to the public in what he has to say and therefore, there cannot be sufficient public interest to overrule any rights he has to privacy and confidentiality.

With regard to the issue of “blackmail” and the balancing of both the Claimant’s Article 8 rights of respect to his private life and D1’s Article 8 right of freedom of expression, the Court refers to the guidance in Lord Steyn in Re S that is, neither one is given priority. Each right must be examined closely for their importance in this matter and the reasonableness of either limiting or meddling with each of the rights. Lastly, the proportionality test should be applied to each right.

Judge Maloney looked at the Claimant’s right under Article 8 and saw no reason to interfere since it was clear he would be damaged by the conversation being made public.

With regard to D1, he said it was clear he was asking for a large sum of money for that recording of the private conversation with the threat that if payment was not received then it would be released into the public domain. Judge Maloney did not know whether he could be criminally prosecuted for this but on the balance of probability felt this was blackmail and therefore, his Article 10 right to freedom of expression would be an abuse of that right balanced against the Claimant’s right to privacy and confidentiality.

The Judge summed up by saying D1 had no reasonable possibility of preventing the success of the Claimant’s claim for an injunction and therefore the Claimant’s application for summary judgment should be granted.

The Claimant had established liability and the judge had to consider to what lengths he should go in granting a final injunction. The Claimant’s interests coupled with the damage to him that would occur from the recording being made public, were as prevalent as when the claim started. The recording had not been released to the public but D1 had not offered any guarantee not to do so and therefore, would most likely try to. Judge Maloney found that a final injunction against both Defendants was right and proper.

The Judge then considered the wording and decided that if “X” was identified, even though she was not a party to these proceedings, there would be a tangible risk that her identification would eventually lead to the Claimant’s identification being revealed and subsequently the private recorded conversation. He granted the injunction to include a prohibition on identifying “X”.

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