Mrs Justice Nicola Davies:
- This has been the trial of an action for misuse of private information arising out of a threat to disclose private information concerning the claimants unless a substantial sum of money was paid. At trial, the only relief pursued by the claimants was for an injunction to restrain the disclosure of this information and continuing harassment by the only relevant defendant, the first defendant ("the defendant"). The claimants were represented by Mr Tomlinson QC, the defendant appeared in person, he was assisted by a representative of the Personal Support Unit ("PSU") and an interpreter.
- The claimant sought an order that the hearing of the trial take place in private pursuant to CPR 39.2(3)(a)(c) and (g), the defendant did not oppose the application. The order was made by the court in order to ensure that during the course of the hearing, private information was not disclosed.
- On 28 March 2012, Tugendhat J gave a public judgment  EWHC 766 (QB) and made an order against both defendants prohibiting disclosure of private information and harassment.
- The first claimant, in his 70s, is a citizen of a continental EU member state, he is a businessman and is described as a wealthy man. Since 2007 the first claimant has been in a relationship with the second claimant and this year the second claimant gave birth to twins, the first claimant is the father. The first claimant is married and has adult children by a former marriage. His relationship with the second claimant is not known to his friends, family or business associates. The second claimant was born in Russia and is considerably younger than the first claimant. She has resided in the UK for some years. The defendant is the boyfriend of a woman who was a close friend of the second claimant. He has been involved in running a construction business but this is no longer trading.
- On 28 November 2011 the first claimant was approached in the street by an individual who handed him a package. This contained an unsigned letter which stated that the first claimant had been investigated and his close ties with the second claimant discovered ("the November letter"). The letter, typed in unidiomatic English, included intimate information about the relationship between the claimants and private information about the first claimant's gifts to the second claimant and other financial matters. The package also included a large number of the second claimant's private emails and a USB stick containing photographs of the first claimant's car outside the second claimant's address. It appears that the claimants had been under surveillance for a considerable time. The letter included a statement that the writer had evidence of the second claimant's pregnancy including where she had undergone treatment and when her twins were due. The letter ended thus:
"We decided not to inform our client
we don't want this information to destroy your position and relationship with your family,
you shouldn't break long term relationship with your family based on trust
Our organisation has spent time and resources. We want to ask you to compensate our expenses and time spent in the amount of £1500000 pound. After payment is received we will give you full information and deliver all the material on this case (photos, video, documentation). Also as a present detailed material on your lover (photo and video).
We guarantee to close this case and destroy all the evidence and never return to this issue again.
We think we'll understand each other and everyone would remain in advantage."
- The first claimant subsequently recognised, from photographs, the person who had delivered the package as being an associate of the defendant. The defendant appears to have subsequently fallen out with this man. Documentation relating to this man was before the court, he was not called as a witness and the court is unable to resolve any issues in relation to this man.
- Following the November letter, the person who sent it made a number of further contacts with the claimants:
i) On 5 December 2011, a note was left on the first claimant's car requesting a reply to the earlier demand;
ii) On 9 December 2011, the second claimant received a call on her mobile telephone;
iii) On 12 December 2011, the first claimant received a telephone call in which the caller said "pay or else";
iv) On 21 December 2011, a note was left at the first claimant's business address with a photograph of the claimants together and information about the second claimant's pregnancy;
v) On 7 January 2012, a further package was left at the first claimant's office with a note;
vi) The same letter was hand delivered to the first claimant's office on 17, 18 and 19 January 2012, stating that the second claimant had been secretly followed on flights in December 2011.
- The first claimant engaged the services of private investigators to investigate the package. As a result of their inquiries, the investigators concluded that the defendant was involved in the demands, as a result they prepared surveillance reports. The defendant was observed outside the first claimant's offices and by the car park used by the first claimant on 3, 4 and 6 January 2012. The defendant does not dispute that he was in Queensway, London and in the vicinity of the first claimant's offices on these days but asserts that he was trying to track down a worker with whom he had had a dispute in February 2009 and who had been spotted in the street on Queensway in January 2012.
- On 20 January 2012 the private investigators confronted the defendant, he denied all knowledge of the threats. After this meeting, the defendant's girlfriend sent texts to the second claimant. Her texts (in translation) read:
"Some detectives came to our place yesterday. (The defendant) called you but your phone was off the hook. He asked me to text you. He wants to meet with you and talk. To sort things out once and for all. Organise a meeting with him today at four o'clock in Baker Street. He will be alone"
- A second text was sent later in the day:
"If you don't want to meet, so that they could explain themselves. Then don't send any more people and don't frighten him and don't try and accuse him of anything. He is prepared to do and explain what they showed him to the police. He will keep this in mind"
- A meeting between the first claimant and the defendant was subsequently arranged for 3.45pm on 23 January 2012 at a coffee shop in central London. The meeting is described by the claimants as being of "crucial importance". It is common ground that the defendant led the first claimant from the street into a nearby fitness centre, then to a changing area and the sauna. A conversation took place. The claimant's case is that, in the course of the conversation, the defendant admitted that he was behind the threats, demanded £1.5 million to be divided between ten people but made a demand for £10,000. On the defendant's account, the meeting was amicable and the discussion quickly turned to construction projects with the first claimant agreeing to engage the defendant to carry out refurbishment work at his offices and agreeing to provide a deposit of £10,000.
- Two issues are before the court:
i) Has there been a threat to disclose private information concerning the claimants and harassment of them which should be restrained by a permanent injunction?
ii) If so, can the court be satisfied that the defendant was responsible for the threats and harassment?
Private information the law
- Human Rights Act 1998
Article 8 right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society
for the protection of the rights and freedoms of others.
Article 10 freedom of expression
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
(2) The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society
for the protection of the
rights of others, for preventing the disclosure of information received in confidence
- As the injunctive relief sought affects the exercise of the Convention right of freedom of expression of the defendant, section 12 of the Human Rights Act 1998 applies. Section 12 includes the following:
"12-(1) This section applies if the court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to
(a) the extent to which
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;"
- The first question for the court is whether the claimant has a reasonable expectation of privacy, in respect of that information such that the claimant's rights pursuant to Article 8 are engaged. If the rights are engaged, then the court must consider the rights of the defendant, Murray v Express Newspapers Plc  Ch 481 at , , , and . In Murray at  the Court of Appeal said that the first question was a "broad one" which "takes account of all the circumstances of the case". Specifically, at  the court quoted with approval Lord Hope's formulation of the test in Campbell v MGN  2 AC 457:
"The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the Claimant and faced the same publicity."
- The court is required to have regard to the Article 8 rights of non-parties and the best interests of any child whose interests are engaged: K v Newsgroup Newspapers Ltd  EWCA Civ 439. It is accepted that where there will commonly be a reasonable expectation of privacy in respect of the details of a sexual or family relationship, the position is not the same in respect of the bare fact of a sexual relationship, or a parental or other family relationship, Lord Browne of Madingley v Associated Newspapers Ltd  QB 103 at . Guidance as to the approach of the court to the balancing exercise was given in Re S (A Child) (Identifications: Restrictions on Publication)  1 AC 593, Lord Steyn at  stated that where both Article 8 and Article 10 rights are involved:
"(i) neither Article as such has precedence over the other (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary (iii) the justifications for interfering with or restricting each right must be taken into account (iv) finally, the proportionality test or "ultimate balancing test" must be applied to each."
- The claimant relies upon the authority of the Court of Appeal in McKennitt v Ash  QB 73 in which it is said the proper approach was summarised as follows:
"Where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by Article 8? If "no", that is the end of the case. If "yes", the second question arises: in all the circumstances, must the interests of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10?
" (at 81, )
- The claimant contends that in approaching the balancing exercise neither Article 8 nor Article 10 has "presumptive priority".
- On behalf of the claimant it is contended that sexual relationships are at the core of private life. The information concerning the relationship between the claimants and, in particular, the photographs and emails which the author of the November letter threatened to publish, are said to be private. This was accepted by Tugendhat J and no arguments to the contrary have been advanced by the defendant. Tugendhat J held that there was no reasonable expectation of privacy in the "bare fact" of the relationship and the pregnancy, the claimants do not seek to challenge the analysis.
- The claimant's case is that the information is not in the public domain. The defendant does not contend to the contrary. In his written and oral evidence, the defendant stated that the second claimant talked about her relationship with the first claimant to people who knew her. However, no evidence or argument has been advanced to the effect as a result the material is in the public domain.
- Subject to the proviso identified by Tugendhat J and accepted on behalf of the claimants, I have no difficulty accepting that the information which the author of the November letter threatened to disclose is information which attracts a reasonable expectation of privacy.
- The claimants accept that the author of the November letter does have some limited Article 10 rights, however, no justification has been suggested for the disclosure of the information. Tugendhat J held that there was substantive justification for disclosure of the bare fact of the relationship and the birth of the twins to the first claimant's wife and family ( to ). The claimants contend that these justifications do not apply to the disclosure of this information more generally or to the disclosure of any further information, whether to the first claimant's wife and family or more generally.
Harassment the law
- The claimants seek a permanent injunction pursuant to sections 3(1) and (3) of the Protection from Harassment Act 1997 ("the 1997 Act") restraining the defendant from the course of conduct complained of and further restraining him from any course of conduct amounting to harassment of either of them and from approaching the claimants' respective residential addresses and the first claimant's business address.
- The material provisions of the 1997 Act can be summarised as follows:
Section 1 Prohibition of Harassment
(1) A person must not pursue a course of conduct
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounts to harassment of the other.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
(3) Civil Remedy
(1) An actual or apprehended breach of section 1 may be the subject of a claimant's civil proceedings by the person who is or may be the victim of the course of conduct in question.
(3) Where (a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment and
(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,
the plaintiff may apply for the issue of a warrant for the arrest of the defendant.
Section 7 Interpretation of this group of sections
(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve conduct on at least two occasions
(4) "Conduct" includes speech
- It is the claimants' case that they live in a state of paranoia and fear as a result of the activities of the defendant, they do not wish to be telephoned or approached by him. The defendant's recent and past conduct towards the claimants indicate that there is an overwhelming likelihood that, unless restrained by the court, the defendant will continue to pursue his harassing conduct towards the claimants.
- A permanent injunction is sought. This would be appropriate only if the court is satisfied that there are grounds for apprehending that the defendant will disclose the information in question in the future or engage in the allegedly harassing conduct. The court was informed that at a previous hearing the defendant indicated that he did not intend to disclose any of the information but in his defence document, he states:
"If the court would not be fair to assess the situation I will be obliged to look for support in the mass media. In order to give publicity to my side".
- In a later communication with the court, the defendant repeated that observation. It is the claimants' case that the court can properly infer a threat to publish and carry out the harassing acts complained of from the fact that the defendant has falsely denied any involvement. It is said that if the defendant is prepared to deceive the court about his true intentions, it can be inferred that unless enjoined, he will disclose the information and continue the acts.
The defendant's responsibility for the threats
- This was the central issue at trial. In particular, whether the defendant was responsible for the November letter, the various follow up letters and whether his conduct in February 2012 can be explained as a lawful series of attempts to follow up on a business deal or whether he was seeking to pressurise the first claimant to make payments in response to threats.
- Resolution of this issue involved the assessment of the evidence written and oral of the first claimant and the defendant, in particular, as to what was said and done at the meeting on 23 January 2012 and the defendant's explanation for his presence in Queensway in January 2012.
- The first claimant gave evidence and relied upon his three witness statements. The second claimant's evidence is contained in two witness statements. The decision was made not to call her as it was said she could give no direct evidence as to the defendant's responsibility for the threats. The defendant provided a detailed 16 page statement for these proceedings ("the defence document") which has been translated into English. The defendant gave evidence and provided a number of further documents which included a statement from his girlfriend, this does not deal with responsibility for the threats, a letter from her daughter concerning communications from the second claimant, letters relating to the defendant's associate who, on the claimants' case, was responsible for giving the first claimant the November package, an email from an anonymous individual criticising the character of the second claimant. The defendant called no witnesses.
- The background to the meeting on 23 January 2012 is taken from the first witness statement of the first claimant. Having received the initial blackmail package, the first claimant engaged the services of private investigators. On 5 December 2011 they commenced a counter-surveillance operation. On 12 December 2011 the second claimant met with the team and provided them with a list of her acquaintances. At that time the defendant's girlfriend was the second claimant's closest friend and the only person who knew the exact times of the second claimant's medical appointments. Suspicion was directed at the girlfriend and the defendant as the first and second claimants had been photographed entering and leaving a medical establishment.
- The investigations into the defendant and others resulted in a report which included photographs and information that on 3, 4 and 6 January 2012 the defendant was in Queensway, London and was observed monitoring the business address of the first claimant. On 19 January 2012 agents of the firm approached the defendant and showed him a full dossier linking him with the blackmail, he denied any involvement. The next day, the second claimant received a text from the defendant's girlfriend stating that the defendant would like to meet the first claimant. It is common ground that following the request a meeting was arranged for the afternoon of 23 January 2012. The two men initially met outside a coffee shop in central London. The texts are set out at paragraph 9 and 10 above.
First claimant's evidence
- At the time of the meeting, the first claimant said that he was not "100% certain" that the defendant was behind the threats. He had agreed to the meeting because both he and the investigators wanted to hear what the defendant had to say. It had taken two months to find a lead to the defendant. They met in the street outside the coffee shop and the defendant suggested that they went to a nearby gym. The first claimant denied that on meeting they shook hands, that he put his hand around the shoulder of the defendant and told him that "everything was excellent". At the gym, the defendant led the first claimant to the swimming pool area. The defendant obtained towels and asked the first claimant to strip off his clothes because the defendant wanted to know if the first claimant had a listening device upon him. The first claimant said this was not something he would usually do but he wanted to find out what was behind the meeting. The discussion took place in the swimming pool area.
- In his written statement, the first claimant records:
"Once we had changed out of our clothes, I asked (the defendant) "If he was mixed up in the business". I said that the £1.5 million pounds the blackmailers had demanded was a very large sum of money. (The defendant) admitted that he was involved in the blackmail. He said he and his colleagues needed the money. He said that the £1.5 million would be divided between ten people. (The defendant) implied that he was in control of this group, that he could control information that they had about (the second claimant) and I, and what came out and what didn't. He appeared desperate and asked me to give him at least £10,000. He said he would tell his colleagues that the money was coming. (The defendant) wrote down his girlfriend's bank account details for me. He also gave me his telephone number. I did not provide (the defendant) with my office telephone number as he alleges."
- During the course of the meeting, the first claimant said that the defendant told him that he had been deceived by the second claimant, he called her greedy and a "bad girl". The first claimant accepted that suspicion had been directed at the second claimant when the matter of the blackmail was being investigated.
- The first claimant recalled the defendant telling him that he would like to go into business with him, the defendant explained that he was in the construction business and that the first claimant could provide the finance. The first claimant said that no business plan was discussed nor did the defendant mention his company. The defendant did mention renovating the first claimant's office but the first claimant denied inviting the defendant to carry out any work or asking for a quote. As to the defendant's suggestion that the first claimant agreed to pay the defendant £10,000 as a deposit for the office refurbishment work, the first claimant said the matter was not even "remotely discussed". There was no question of refurbishing the office. He said there was a request by the defendant to pay him £10,000 but no reason for the sum was given. The first claimant said he was anxious to end the conversation. He said he would think about the defendant's suggestion that they would go into business, the first claimant said he had no intention of doing this but said it to appease the defendant to try and bring the conversation to an end.
- The first claimant stated that he explained to the defendant that he was leaving the country on business and would be back on 7 February and they could meet when he returned. They then left the pool area, got dressed and left the gym together. The meeting lasted about 45 minutes.
- In his third witness statement the first claimant states that on 24 January 2012 the defendant approached him in the street near the home of the second claimant. He asked for £10,000. The first claimant said he would meet the defendant on 7 February 2012 when he returned from his business trip. On 30 January 2012 the first claimant received a telephone call from the defendant on his office line, he attempted to discuss business with the first claimant and asked for money as an investment in one of his businesses. The first claimant said he was not interested and asked him to stop contacting him. In order to buy himself more time, he said he would meet him on 7 February 2012. Later that day, at about 17:30, the first claimant was driving his car in central London near the home of the second claimant when the defendant stepped out into the road, the first claimant got out of the car, the defendant approached him and said "Don't mess with me".
- On 7 February 2012 when the first claimant was on his way to the second claimant's home, he was cornered by the defendant outside a car park in central London. It was the belief of the first claimant that the defendant had been following him. The defendant repeated his request for £10,000 for his business, the first claimant said he needed more time to think and was told by the defendant that if matters continued, the first claimant would "have to explain to my wife about my other life." In his third witness statement, and for the first time in these proceedings, the first claimant stated that he believed that the threat was genuine, he could not stall the defendant any longer and as a result, arranged to meet the defendant the following day when he gave him a cheque for £10,000.
- On 9 February 2012 the first claimant reported the matter to the police who issued a crime reference number. The police warned that they could not guarantee anonymity and that proceedings could take a year or 18 months. By reason of this, the first claimant decided not to take any further action with the police or to make a formal complaint as he believed the threats made by the defendant and thought that he would go to his wife or to the press with information which he had. By giving the money, contrary to the advice of his advisors, the first claimant thought he might be left alone. Having paid the money, the first claimant realised that the defendant was not going to go away, he sought the advice of his solicitors who made the decision to apply for the injunction. The application was made on 12 March 2012.
The defendant's evidence
- It is the defendant's case that the first and second claimants are concealing the truth from the court. In his defence document, the defendant details the personal history of the second claimant including information, personal and financial, of her relationship with the first claimant. The information goes to the character of the second claimant who is portrayed as being immoral and greedy. It was the second claimant who informed the defendant and his girlfriend that someone was blackmailing the first claimant, had given him papers and photographs which included some of her personal emails. The second claimant told the defendant and his girlfriend that she was able to destroy her compromising emails.
- The defendant recalled two men from the private investigation agency arriving at his home and informing him that they were suspicious that he was taking part in the blackmail. He told them he had nothing to do with it. They showed the defendant photographs of himself, he was standing in a street. The defendant said he had the right "to stay where I want". The investigators told the defendant that they had evidence of participation and if he tried to do anything the first claimant would go to the police. The defendant said that the first claimant had the right to do what was necessary. Upon returning home the defendant told his girlfriend, she was amazed at the accusation. The defendant asked his girlfriend to send a text to the second claimant so that a meeting with the first claimant could be arranged when they could "explain to each other."
- The defendant also accepts that the meeting on 23 January 2012 began in the street outside the coffee shop. In his statement, the defendant states that the first claimant:
"Shake my hand, he was in good humour and was smiling. He put his left arm around me, and we walked along the street. I asked him how are you, and he answered that everything was excellent, despite the problems that I was allegedly creating for him. And he said to me, why we not met before? He was supposedly suffering and could not sleep at night. Why, I answered him, there was no reason to get to know each other. (The first claimant) suddenly invited me to negotiate, and said "Let's go 50/50", upon which I looked at him with surprise and said, what did he have in mind?
He said that he was prepared to pay half. I answered him by saying that I was not part of this and that he was mistaken in this. I told him that I had information to tell him about (second claimant). Upon which (first claimant) answered, "OK, let's talk". I was planning to go to the sauna that day. As we were talking, (first claimant) and I came up to Fitness First to the sports club. I said that I knew a place where we could talk and combine business with pleasure. I took two towels and we went down inside. We went to the locker room and (second claimant) asked, "why are we going there?" I answered that it would be better to talk in an informal setting, relaxed and talk in the Sauna and I wanted there to be a friendly atmosphere."
- Both men undressed and moved to the pool area where there are saunas and a space for relaxation. It was suggested to the defendant that his reason for wanting to take the first claimant to the fitness centre was to ensure they were not being watched or recorded as he was aware that private investigators had been instructed. The defendant replied that he did not force the first claimant, he could have refused.
- The defendant recounted the conversation which took place in the fitness centre:
"(the first claimant) asked again if I was mixed up in this business or not. I answered no
My main interest and plan for the meeting was to give a business plan to him and talk about construction."
The defendant began to speak about himself, the first claimant said he knew everything about him from the second claimant. The first claimant asked the defendant what he knew about the second claimant and their relationship. The defendant told the first claimant that he was being deceived by her, he gave reasons for his belief which were based upon the behaviour of the second claimant. The essence of the remainder of this part of the conversation was that the defendant told the first claimant that the second claimant was after his money. When cross-examined, the defendant accepted that the information which it was threatened to disclose in the November letter was of the same nature as to information which he gave to the first claimant when they met. As to that information, the defendant said lots of people knew about it as the second claimant tells everyone.
- The defendant's statement continued:
"Having finished talking about (the second claimant), I offered my business plan to (the first claimant). The plan consisted of (the first claimant) allocating money to buy a house in a good area, registering the house on his name or through his company
I would be completely involved with this project
The defendant provided details as to what the project involved and the costs thereof. The project would take up to six months, the profits would be shared equally between the defendant and the first claimant. The first claimant said that he would need to think about the proposal.
- The defendant's statement continues:
"(The first claimant) said that he want to do a small refurbishment project at his offices and want me to do. I asked him what he wanted done. (The first claimant) answered that the walls and ceiling needed painting in a different colour, two desks and chairs needed replacing, there were a couple of cupboards to be made, and front doors needed painting on both sides. He asked how much this would cost. I answered that I couldn't say immediately, I'd have to take a look and take measurements. The cost would also depend on the quality of the materials. Upon which (the first claimant) said, "Give me an approximate price". With materials and labour, it would be roughly £15,000 to £20,000. (The first claimant) said that this price suited him, and also said that I should find some furniture samples
He said he didn't have time to deal with this himself and that he trusted me. I said that I would need a deposit of £10,000 and it would be essential for me to go and take some measurements, and bring paint colours
(first claimant) said that he was flying off on a business trip and that he would transfer the deposit to my account
I said that we had temporarily closed the business account, so I couldn't give him the account details
I said I would give him my girlfriend's account
After we went back upstairs, I got some paper and pen from reception and wrote down details of my telephone number and my girlfriend's bank details. (The first claimant) also dictated his work telephone number to me. (The first claimant) said he would not be gone for a long time and would return soon and call me."
- The defendant said he was really surprised that the first claimant agreed to give him the £10,000 deposit without any proper estimates. As to the payment of the deposit, the defendant said that he explained the terms and conditions of his company, a copy of which he produced during the course of the hearing, which required a deposit of 50%. The deposit would be retained even if the work was cancelled. Asked to what he had done with the money, he said that time would be spent organising work and looking for materials. The defendant went to a furniture company where he spoke to the director and took a catalogue, he went to the showroom and looked at fitted wardrobes, he went to a paint shop and obtained a catalogue for different paints and he told some workers that there could be a project. It was put to him that there were no documents to support his alleged work. He said that was because no work had been started. The meeting lasted an hour.
- As to the events of the following days, in his statement, the defendant includes the following information:
"The next day, I was worried that I had said everything about (the second claimant) and met him in the evening in the entrance of the building where (the second claimant) lives and asked him not to tell (the second claimant) and that the conversation would stay between us. (The first claimant) answered "fine".
The next day, at about 8 o'clock in the evening, (the first claimant) called me from his business trip and asked how things with me. I said fine and he told that he will transferring the deposit to me to the account and when he returned, we would meet and discuss business.
The next day, (the defendant's girlfriend) received a text from (the second claimant). She had written that we were bastards and scum."
In his statement, the defendant records how later that night the second claimant arrived at their home and immediately started to insult the defendant in front of his girlfriend using "crude and unprintable words", she said;
"Why did you do this to me, so will not leave this, I was threatened, and she said that we wanted to move her and take her place. And she would find a way to take revenge on us,
she will get that, she want and you are bastards and will die.
- Some time passed, the first claimant did not transfer money, as a result the defendant called him at work to ask why the money had not been transferred. The first claimant replied that he had just flown back to the country, had lost the details of the bank account and so the defendant gave them again. Subsequent to this conversation, the defendant stated that he received telephone calls from a blocked number telling him not to call the first claimant. Subsequently, two incidents took place.
- The first incident occurred when the defendant left his home, two men were in a car in the street, one of them said to him that if he did not leave the claimants in peace then something would happen to him on the street. The defendant asked if he was being threatened, the man replied that he was giving a warning. On the second occasion the defendant was in the park with his girlfriend and their dog. Two men approached him, one said they were giving him the last warning.
- Further calls from a blocked number were received, the defendant was stopped in the street, there was banging and calling at the door of the defendant's home. The second claimant called the daughter of the defendant's girlfriend reducing her to tears.
- The defendant believed that matters had gone far enough. He called the first claimant at work and told him that he was preparing to tell his wife everything about his relationship with the second claimant. The first claimant's response was that he would send the defendant to prison, he was not responsible for the second claimant's actions. The next day, the defendant was in a car close to the house of the second claimant when both claimants came out. The defendant got out of his car whereupon the second claimant began to insult and threaten him, telling him he was going to die. The first claimant made no move to stop her.
- On a subsequent occasion, the defendant was waiting for his girlfriend in Queensway when he saw the first claimant walking along the street, he was called over and the first claimant told the defendant that he was not answerable for the second claimant's actions. The first claimant said that he wanted to do the renovations at the office to which the defendant replied that the first claimant was not serious and did not keep his promises. He had used the defendant in order to obtain information about the second claimant. The first claimant promised to give the deposit. The next day, the defendant called the first claimant at work to ask whether or not there had been any change. The first claimant's secretary dealt with the call. An hour later the first claimant called the defendant and agreed to meet the next day for lunch on Queensway. The meeting took place, the first claimant gave the defendant a cheque for £10,000 and told him to deposit it. The first claimant said that he was leaving, he would be back by Easter and would be in touch with the defendant. Some three weeks later, the defendant was told by the claimants' private investigators that the matter was going to court.
- The private investigators, instructed by the first claimant, took photographs of the defendant in Queensway on 3, 4, 6 January 2012. The defendant did not dispute his presence but said that he was there in the hope of finding a man who had previously worked for him in 2009 doing plastering and painting. The work had been badly done, the defendant insisted that the man redo the work but had refused to pay for the reworking. When the defendant subsequently arrived at the property where the work was being done, he found that the walls and ceilings were spattered with bicycle spray paint. Subsequently, he was told by another worker that the man in question had been seen on Queensway. He returned there a few times in the morning and evening in the hope of meeting him. Queensway is not far from where the defendant lives.
- The defendant addressed the court in an opening statement, he gave evidence and made closing submissions. In his presentation he was ably assisted by a representative of the PSU. It was clear that the defendant felt that he had been wronged, in particular by the second claimant who, he believed, had been pressuring the first claimant. The defendant told the court in eloquent and forceful terms how he, his girlfriend and her daughter had suffered because of these accusations. The defendant cross-examined the first claimant and the private investigator.
Evidence of private investigator
- One of the private investigators was called, two of them were detailed to monitor the meeting on 23 January 2012. One remained in the coffee shop, the other was in an adjoining street. As the meeting took place outside the coffee shop, neither investigator was in a position to photograph the initial meeting, neither investigator followed the two men into the fitness centre.
Assessment of the evidence
- In considering whose evidence of the meeting of 23 January 2012 I accept, I take account of the following facts:
i) It was the defendant who sought the meeting. He did so after he had been approached by the private investigators and was thus alive to the possibility of surveillance of the meeting;
ii) The defendant, an intelligent and shrewd man, was the person who made the suggestion to go to the fitness centre. Any surveillance would thereafter be difficult if not impossible;
iii) By the time of the meeting, the first claimant was well aware that he was being blackmailed, he had no reason to be genial still less to suggest that everything was excellent;
iv) The account given by the defendant as to what he told the first claimant about the character and behaviour of the second claimant is accepted by him to be of the same nature as the information contained in the November letter;
v) The meeting took place in order to discuss threats of blackmail. The defendant's evidence is that the conversation swiftly moved to business and concluded with an agreement that the defendant would carry out work for the first claimant. I regard that as being implausible for the following reasons:
a) on the defendant's account, the first claimant accepted his bare denial of blackmail without question and immediately moved to the matter of business;
b) the first claimant had no reason to enter into a business relationship with a likely blackmailer;
c) the first claimant, a businessman, agreed to pay a deposit of £10,000 at a time when the defendant had not seen his office, had prepared no estimate of any likely work nor provided details of the work required to be done;
d) there was no evidence before the court of this business transaction, for example, a confirmatory letter from the defendant as to the proposed project and the deposit paid;
e) no good evidence exists as to what happened to the £10,000;
f) the defendant does not dispute that he is in financial difficulties, having suffered both personally and professionally.
- The first claimant presented to the court as a businessman. I cannot accept that he would have suggested still less embarked upon any business relationship with the defendant. The picture painted by the defendant of the behaviour and generosity of spirit as shown by the first claimant is at odds with his character and evidence as demonstrated to the court.
- Further, I am unable to accept the defendant's account of how it was he found himself near the business address of the first claimant on three days in January. It is implausible. One other point of note: both the blackmailer and the defendant used the same unusual mode of address, namely the title "Mr" followed by the initial letter of the first claimant's first name.
- In closing submissions on behalf of the claimants, the point was made that if the defendant is not the blackmailer, why pursue him, there being no challenge to the fact that the threats were made, no challenge to the evidence in respect of the letter and package. Thus, if the claimants have knowingly pursued the wrong person, it means the blackmailer is still out there. In my view there is force in this submission.
- For the reasons given I do not accept the defendant's account of the meeting of 23 January 2012. I am satisfied that the defendant did take the first claimant to the fitness centre in order to foil any surveillance and when there, asked the first claimant to undress to remove the possibility of recording equipment. The acts are those of a man who wants to avoid any record of his words or actions. The defendant received £10,000 from the first claimant, the bank account details given being those of his girlfriend. No good account has been given to the court as to what happened to the money. All of these events occurred when, on the defendant's own account, he was in financial difficulties. I prefer the evidence of the first claimant as to the crucial meeting. Accordingly, I am satisfied, not least because the defendant said so, that he was responsible for the November letter and package and for later documents addressed to the claimant.
- In the statements of both claimants their fear and concern as to existing and future threats is clear. I have no hesitation in accepting such evidence. The conduct of the defendant clearly falls within the provisions of the Protection from Harassment Act 1997.
- I am satisfied that there have been threats by the defendant to disclose private information concerning the claimants and harassment of them. As to the balancing exercise to be carried out as between the claimants' Article 8 rights, the defendant's Article 10 rights and the issue of the public domain as identified in Section 12, I find as follows: the information is private; no good grounds have been advanced which could justify disclosure pursuant to Article 10. The fact that the second claimant may have spoken to friends is insufficient to bring the information into the public domain as identified in Section 12. Accordingly, I find that the claimants have a strong claim in relation to the threatened misuse of private information, such rights as exist pursuant to Article 10 are weak and substantially outweighed by the privacy rights of the claimants.
- A permanent injunction is sought. In my view, two reasons underpin the need for such a measure. Firstly, the defendant's denial of any of the alleged conduct. Secondly, the defendant's statement about resorting to the mass media. I have no confidence that unless restrained by a permanent injunction there will not be an attempt by the defendant to disclose the private information contained in the November letter and documents. I am conscious that in making such an order it imposes a significant restriction upon the defendant but the information which he seeks to disclose is private, and this step is necessary to properly protect those affected by such disclosure.
- Accordingly, I will grant an injunction in the terms sought. The injunction will be against only the first defendant.