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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> SKA & Anor v CRH & Anor [2012] EWHC 766 (QB) (28 March 2012) URL: http://www.bailii.org/ew/cases/EWHC/QB/2012/766.html Cite as: [2012] EWHC 766 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) SKA and (2) PLM |
Claimants |
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- and - |
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(1) CRH (2) Persons Unknown who have threatened to reveal private information about the Claimants |
Defendants |
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The First Defendant appeared in person
The Second Defendants did not appear and were not represented
Hearing dates: 12 and 19 March 2012
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Crown Copyright ©
Mr Justice Tugendhat :
"9. I was deeply shocked by the contents of this package [of 28 November] and very concerned about the threat of revelation of this private information to my family. My world, and that of my wife and children, would be shattered if they knew, and my relationships with them would be destroyed. I am certain, for example, that my children would be devastated and would not speak to me if they were given this information…"
"My relationship with [the First Claimant] is secret because he does not want to lose his family, nor be ostracised by his children and I know that he is certain that this would be the result should the information be revealed to them".
THE FACTUAL BACKGROUND
"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."
"31. … The police were sympathetic to my position but made it clear that if I made a complaint against the First Defendant then they could not guarantee that I would remain anonymous and that there was a possibility that my name and details might become public, particularly during the investigation.
33. We are deeply concerned that if we do co-operate in any prosecution of the First Defendant, and he is arrested as a result, he may tell my family and our relationship out of spite and because he will have nothing left to lose. I hope a civil injunction holds a lower risk of this".
"19. I am also very concerned for the health of my wife. She is [only a few years younger than himself], and I do not think that she would be able to handle this information, and particularly being told by a stranger or through anonymous communication. I am fearful of the effect that this would have on her…
36. This episode has been extremely distressing for everyone involved and has affected my health. As I explain above, I am very concerned about the effect on my [he repeats her age] wife should she be informed of this information by a stranger. She would be very confused and scared and I fear that it would have a real and destructive effect on her health".
THE LAW
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 ...
- "Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them. It also embraces their physical and social identity and psychological integrity.
- Respect for private and family life comprises to a certain degree the right to establish and develop relationships with other human beings."
"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"
"12. - (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression…
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(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; ….
"As regards the chances of success at the trial, I accept that section 12(3) of the Human Rights Act does require the court to look ahead and only grant an injunction at an interlocutory stage if the claimant is likely to succeed at trial. But I would also say that there will be cases where it may be necessary to grant an injunction ex parte to hold the ring until a proper inter partes hearing can be held and in which it can be finally explored as to whether the claimant will succeed at trial. In such cases, of course, the claimant must show even at the ex parte stage a sufficient likelihood that he will succeed at the inter partes hearing, but a more flexible approach is appropriate. Lord Nicholls put the matter in this way in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at paragraph 22:
"Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal." (emphasis added)
""(1) A person must no 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) 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 amounted to … harassment of the other…"
"The ordinary blackmailer normally threatens to do what he has a perfect right to do namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure, as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a 'menace' ... or in itself provides a reasonable or probable cause for the demand" (at pp. 806-807)". (emphasis added)
"There is an important distinction between the desire to keep information private and invoking the full panoply of the Court's jurisdiction in order to do so. It is and should remain a strong thing to impose a prior restraint on publication."
THE HEARING ON 12 MARCH
EVENTS AND EVIDENCE SINCE 12 MARCH 2012
"I understand that the court had some queries about the next steps to be taken in this matter. [The First Claimant] and I have discussed the birth of our children, and agreed that he will not be registered as the father so there will be no public record of the children's paternity. The paternity of my children is known only to a very small group of my most trusted friends, and obviously to [the First Claimant]. I do not believe that the information will find its way into the public domain unless [the First Defendant] and his associates disclose it".
SUBMISSIONS FOR THE CLAIMANTS
"25. I then turn to the Article 10 rights of the defendant girl. Clearly those are also engaged. Leaving aside for the present any question of blackmail, the question is whether the claimant would be likely to succeed in obtaining an injunction restraining publication by the girl, and it seems to me the answer to that question could be different depending on whether the girl was seeking to sell the story to the newspapers and the media or simply informing the claimant's wife. This seemed to be a point which Eady J was referring to at paragraph 32 of his judgment in CC v AB. In A v B Plc [2003] QB 195, which is a case referred to in that paragraph, the original decision of Jack J, he in fact confined his injunction to publication by the girl to the media, and it may thus be that there is a distinction between publication to others and publication to the media. Thus, though without any blackmail element, there is as it seems to me a sufficient likelihood of the claimant succeeding at a trial to justify an ex parte injunction restraining publication by the girl from publication to the media, I am more doubtful as to whether without the blackmail element there would be a case for restraining the claimant from divulging the information to the claimant's wife.
26. Does the blackmail element make any difference? What is said is that the claimant is entitled to an injunction to take away the basis on which the blackmail can operate. That as it seems to me raises possibly a good point. On the one side it could be said that until the girl stops blackmailing threats, she cannot rely on her entitlement to exercise her rights of freedom of speech. On the other side it could be said that the claimant's remedies are available without having to go to the court. He could refuse to bow to the blackmail and he can report the matter to the police. It is then up to the girl whether she exercises her right to divulge the information to, for example, the claimant's wife without insisting on any payment. But at this stage we are only concerned with whether an injunction should be granted for a short period of time pending full argument as to whether an interlocutory injunction should be granted until trial. While there is (as there is) on the evidence before us, a blackmail element, it seems to me that the right course is to grant the wider injunction for a limited period of time. By the time the inter partes hearing comes on, the factual situation may become clearer and the point can be more fully considered. Thus I would allow the appeal and grant an injunction. " (emphasis added)
DISCUSSION
"36. I would accept that article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the 'second family' or to the Claimant's extra-marital relationship. It is a 'bare fact' case; that is to say, the court is concerned only with the bare fact of the familiar relationship… Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the 'second family'."
"The fact that a person is making unwarranted demands with threats to disclose information does not of itself mean that that person has no right to freedom of expression. As Lord Atkin pointed out in Thorne, the blackmailer may even be under a duty to disclose the information. But if a person is making unwarranted demands with threats to publish, that is a factor in deciding whether that person has any Art 10 rights, and, if so, then the weight to be accorded to them in balancing them with the applicant's Art 8 rights."
"it is noteworthy that there is no evidence whatever from any family members (first or second) in support of the claim for injunctive relief. … if practicable, the family members should have spoken for themselves; there is no explanation before this Court as to why they have not done so here,…"
CONCLUSION