|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> BHX v GRX & Anor  EWHC 770 (QB) (29 March 2021)
Cite as:  EWHC 770 (QB)
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
- and -
The Defendants appeared in person
Hearing date: 10 February 2021
Crown Copyright ©
The Honourable Mr Justice Nicklin :
"We have received 7 letter (sic) in 12 weeks all threatening and controlling. Trying to make us do what he says and make us feel he will win. Yes he is a vulnerable adult in the sense he would put him and others at risk, unintentionally (who would put themselves at risk intentionally) but also very dangerous as he does not learn from mistakes he has made and has no care for them. He does not care about the impact he had on anyone as long as he gets what he wants. He STILL adds girls who look under 18, god knows what he says or does with them and he write stupid things on [Facebook] all the time and we know he does stupid things. From my experience, how I've heard him talk to girls and medical professionals he is 'pervy'. These letters are obsessive and threatening. I have received another today. He is making me VERY ill. Can you not see he is totally out of control and is going to seriously hurt himself or others!!! You two bury your head and trying to justify his behaviours has been constant through out. I need to safeguard my family, I would never make anything up but I will tell whoever I need to about his extreme behaviours and the past.
How long can he go on hurting people and excuses are made because of his disability. Yes he is not right in the head but this behaviour needs to stop or something terrible is going to happen.
Also if this was [the Second Defendant] doing all this to me as the father. You would be telling me how dangerous he was, that I should get the police involved and helping me to stop him. It's because he's your son and you love him, you see it differently. Which I understand as Bad people have parents and their parents love them. But I need to protect my family from this bad person."
"You have said your peace of mind and I have said mine. It isn't that [Claimant] isn't right in the head but that his brain is wired differently as you know it's a disability that is hidden but no less impairing, for social interaction, communication, imagination, lack of empathy his resistance to change also his repetitive activities (Law) has been the only thing he's been any good at (unfortunately). You might have this sort of thing to deal with later on at least you are aware of it early on. You have a chance to mitigate the issues. We didn't have the luxury of this.
We are completely on your side regarding the issue of access to the kids. He's had his chance and blown it.
But I ask you to remember no matter what you think of him he's still your brother like it or not. I'm the first to say he does my head in but he is my son, just like you also [name] and [name] are my family.
We all try to justify issues no matter what they are of the ones we love you do too both for the children and [the Second Defendant]. You keep saying you will do anything to protect your family. Are we not all part of the family. I thought we were. Who is always there for all of you at the drop of the hat any time of the day or night.
Love Dad xx"
"I believe [the Claimant] our son has accessed my phone and taken information from it with regards to texts between my daughter … and myself. I must stress that this has been done without my permission and I'm extremely annoyed. I do not wish this information to be used in any civil or legal action as this is my private information. He borrowed my phone a few weeks ago so he could access the internet (tethering his laptop to my phone) concerning work he did not ask for permission to access information on my phone. I'm disgusted this has happened so he can pursue legal proceedings against our daughter and son in law again."
"AND UPON [the Claimant] accepting that he accessed material held on his parents' mobile telephone during the course of assisting them with another matter, and copied that material without consent."
"I understand you are pursuing a legal claim for access to your niece and nephew which is your right.
To avoid any potential complaint regarding harassment I suggest you address all future correspondence regarding this matter via the [Defendants'] solicitor. The [Defendants] do not want any type of contact with you, if you contact them directly or indirectly you may be arrested and prosecuted for harassment. This is a reasonable request to prevent criminal offences, please accept this warning, there will be no further warnings."
The Claimant responded by email the same day to say that he was involved in Court proceedings with his sister and that he did not have the details of any solicitor that had been instructed to act for the Defendants. The officer responded stating that the Defendants' solicitor was in the process of writing to him and that "the warning stands".
"(1) The Respondents shall not disclose to any other third party whether directly or indirectly information regarding the nature of the Applicants arrest … medical health in the year 2016.
(2) The Respondents shall not disclose to any other third party whether directly or indirectly information regarding this Order…
(3) The Respondents shall not disrupt [the CAO Proceedings] whether directly or indirectly or by any other third party. By the using of any conduct or influence or any incident or pattern of incidents of controlling, coercive or threatening behaviour.
(4) The Order not to disclose should last until the Respondents entire lives."
Explaining the grounds for this order, the Claimant set out:
"The Respondents have sought help from my mother and father in which they have disclosed information to them about this case. They have either negligently or directly or indirectly caused them to change their current relationship with me. My parents have made representations to influence me to stop [the CAO Proceedings] such as the possibility of making me homeless. [The Defendants] have complained to the police about harassment which could have resulted in my arrest and disrupted these proceedings. They have told the children I am a bad person or to that effect…"
"Further to … the hearing held on 20th June 2018.
I write to request further information about these alleged allegations, my estranged sister alleges from the ages 11 years onwards.
Can your client kindly expand on what incidents; though they are disputed, occurred, given dates and detailed description?
A polite reminder will be drawn to your client's attention that the correspondence submitted or evidence, will be used in cross-examination in any proceedings. It is also submitted I have evidence to disprove these allegations outright. It is a polite reminder in that regard, that these false allegations should be withdrawn at the earliest opportunity.
Failure to withdraw them could open up to further legal action. I must stress to prevent confusion that the only outcome I want out of these proceedings are to have contact with my niece and nephew. I do not want to take other legal action unless it is absolutely necessary because your client's financial ability to support my niece and nephew would be affected if a financial remedy was sought instead."
I conclude from this that it is likely that it was at the hearing on 20 June 2018 that the allegations of inappropriate sexual activity/behaviour were first made by the First Defendant against the Claimant (see further [20(3)] below).
(1) refused to grant any non-molestation order against the Defendants;
(2) made no order in respect of the CAO Proceedings; and
(3) made a prohibited steps order against the Claimant which prohibited him from (a) publishing or sharing information relating to or photographs of the children by any means; (b) taking any photographs of the children, save at a family gathering or photographs in which the children are incidental; (c) approaching or initiating contact with the children by any means save at a family gathering or by sending Christmas or birthday cards each year.
(1) the complaint to the police that led to the harassment warning being given to him on 11 June 2018;
(2) the Defendants' conduct through the CAO Proceedings constituted harassment, misuse of private information/breach of privacy, defamation and malicious falsehood;
(3) in particular, the Defendants' solicitor had made the following allegation, in writing, in the CAO Proceedings:
"It is the parent's (sic) case that any contact with the Applicant either directly or indirectly is not in the children's interest or the children (sic), rather indeed the applicant presents a significant safeguarding risk to the children by virtue of the following:
- From the age of 11 until late teens [the First Defendant] was subjected to inappropriate sexual behaviour and occasional sexual assault by the [Claimant].
- The [Claimant] enters into inappropriate relationships, largely online with teenage girls; he was arrested (but not charged) with the grooming of a 14-year-old girl."
(4) a third party ("NHT") had assaulted the Claimant because he was pursuing the CAO Proceedings.
The Claimant indicated that he would accept damages of £5,000 and the letter concluded:
"I will warmly welcome that your clients accept this claim and apologise and agree to the damages to be paid to me. Otherwise further legal action will continue."
(1) on 30 December 2019, lodged a complaint with the local police force alleging that the police had failed properly to investigate the August Incident; the complaint was rejected on 25 March 2020;
(2) lodged a request for a reconsideration of the decision to discontinue the prosecution against the Second Defendant under the CPS's Victims' Right to Review procedure, which was refused by the CPS on 7 January 2020;
(3) on 19 January 2020, threatened the CPS with judicial review of its decision to discontinue the criminal proceedings against the Second Defendant;
(4) on 20 March 2020, issued a claim for judicial review against the Magistrates' Court (with the CPS and the Second Defendant as interested parties). Permission was refused on the papers on 15 August 2020. The Claimant has told me that he has applied to renew his application for permission.
"(a) in respect of the claim for harassment under the Protection from Harassment Act 1997, the factors set out in Dowson -v- Chief Constable of Northumbria  EWHC 2612  including the degree of criminality required;
(b) in respect of the claim for defamation, (i) whether and the extent to which absolute privilege applies in respect of the statements made in other legal proceedings, (ii) the need to show the publication of the relevant statement has caused or is likely to cause serious harm to the reputation of the Claimant pursuant to s.1 Defamation Act 2013;
(c) in respect of the claim for misuse of [private] information/breach of privacy whether the Claimant had a reasonable expectation of privacy (see Axon -v- The Ministry of Defence  EWHC 787 (QB)); and
(d) in respect of the claim for malicious falsehood, the need to show malice."
(1) Message from the Claimant to PUJ:
"Hey how are you"
(2) Message from PUJ to the Claimant:
"… I've just spoken with [the First Claimant], I know just about everything. I think its appalling, what you have done in the past and currently. The past I would describe as sexual abuse. Your relationships with other young girls are at best inappropriate and you don't seem to have any concept of how inappropriately you are also being on social media. The current campaign against [the Defendants] I would describe as stalking and harassment through the courts. The fact you are attempting to gain access to their children is bizarre and extremely disturbing. I always thought it was due to your condition, but I cannot … reconcile all of this, most must be purposeful and your personality. I want no more to do with you. The girls have also blocked you, please don't try and get in touch again. And no, a reference won't be forthcoming."
(3) Message from the Claimant to PUJ:
"I'm very upset with your message and I don't think it's fair for you to cut me off like that without talking to me. What [the First Defendant] has said to you is not true and all the more reason why I'm trying to vindicate myself. You have not even listen (sic) to my side of the story. I would not harm anyone and I NEVER have so I'm upset you don't believe me and I feel I've lost somebody dear to me. I've already lost a sister and now I'm loosing (sic) family members don't do this to me I've done nothing wrong."
The Claimant told me at the hearing that he has not spoken to PUJ since the exchange of those messages.
(1) the Claimant to serve an Amended Particulars of Claim which gave particulars of the specific acts of the Defendants upon which he relied in respect of each of his causes of action;
(2) no Amended Defence should be filed at this stage;
(3) the Defendants to file a list of any previous proceedings brought by the Claimant against the Defendants (or vice versa) together with copies of orders made in the proceedings; and
(4) the Libel Proceedings would be referred to a Judge of the Media & Communications List for further hearing.
(1) requiring the parties to contact the Clerk of the Lists to fix a hearing before a Media & Communications List Judge in the period between 16 November 2020 and 26 February 2021 ("the Hearing"); and
(2) that, if the Defendants wished to make any application to strike out the Claimant's claim or for summary judgment, they had to issue file and serve an Application Notice (together with evidence in support) by 23 October 2020, and it would be heard at the Hearing.
"Whether or not any Application Notice is issued by the Defendants… and as previously determined by Master Brown, at the Hearing the Court will consider whether the Claimant's claim should be struck out pursuant to CPR Part 3.4 for failing to disclose proper causes of action and/or whether the Claimant's claim (or parts of it) should be dismissed under CPR Part 24 as not having a real prospect of success."
"I have not made any application to strike out as every bit of court work I do has a massive impact on my physical and mental health. I'm suffering with panic attacks and palpitations. Master McCloud and Master Brown both shared their concern there was no merit in his case and this would need to be considered at the next hearing. I was asked by Master McCloud to show every application in every court made against us by [the Claimant] for the courts to consider a civil restraint order, which I did. I'm not only preparing work for London courts but also the family courts whilst working and caring for two small children. I don't want to file applications against [the Claimant] as I worry he will then put Ten more against my family.
I simply want the courts to recognise what is being done to my family and put a stop to this through their own powers. We feel we are being abuse and bullied. [The Claimant] wants contact with our children, this and all other cases taken out against us is simply way of him pressurising us to give in to his demands."
(1) an alleged slander in or around 2013 by the First Defendant to the Second Defendant alleging that the Claimant sexually assaulted her as a child (APoC§14(b)(1));
(2) the text message sent by the First Defendant to her father on 8 June 2018 (see  above) (APoC§14(b)(1)(b));
(3) "oral statements made by the Defendants before the 18th August 2019 made to the public at large" alleging that the Claimant was a paedophile and had sexual relationships with children under the age of 16 and sexually abused the First Defendant between the ages of 11-17 (APoC§14(b)(1)); and
(4) an alleged slander published by the First Defendant to PUJ before 7 March 2020 alleging that the Claimant was a paedophile and had sexual relationships with children under the age of 16 and sexually abused the First Defendant between the ages of 11-17. This claim is not pleaded in the Amended Particulars of Claim. This claim is based on the text messages exchanged between the Claimant and PUJ on 7 March 2020 (see  above).
Misuse of private information/breach of privacy
"The Defendants acquired information about my arrest and had knowledge about our dispute over the children in the Family Courts. The 1st Defendant unlawfully breached her agreement with myself and told the 2nd Defendant about my arrest and together jointly with the 2nd Defendant told untold numbers of persons."
Striking out a statement of case
(1) The Court can strike out a party's statement of case (or part of it) if it discloses no reasonable grounds for bringing the claim: CPR 3.4(2)(a).
(2) If the Court finds that the party's statement of case is defective and must be struck out, the Court should nevertheless consider whether, if given an opportunity, there is a realistic prospect that the party will be able to remedy the defect. If so, the claim should not be dismissed and the claimant given an opportunity to provide a revised statement of case.
(3) The Court can summarily dismiss a claimant's claim under CPR Part 24 if it considers that the claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the claim should be disposed of at a trial: CPR Part 24.2.
(4) The principles to be applied when considering summary judgment are set out in Easyaire Ltd -v- Opal Telecom Ltd  EWHC 339 (Ch)  per Lewison J (approved by the Court of Appeal in AC Ward & Sons Ltd -v- Catlin (Five) Ltd  Lloyd's Rep 301 ). The Court will not summarily dismiss a claim where the claimant shows that it has some chance of success. That prospect must be real; the court will disregard prospects which are said to be "false, fanciful or imaginary". It is not appropriate to conduct a 'mini-trial' trial: Swain -v- Hillman  1 All ER 91.
(5) Fundamentally, the criterion which the Court has to apply under Part 24 is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3)  2 AC 1  per Lord Hobhouse.
(6) It is a fundamental requirement in any defamation claim for the claimant to set out, in his statement of case, the precise words that he says are defamatory of him and which the defendant has published to a third party: CPR Part 53 PD §2.2 (the Practice Direction in force when the claim was commenced); Capital and Counties Bank -v- Henty (1882) 7 AC 741, 771-772 per Lord Blackburn; Wissa -v- Associated Newspapers Ltd  EWHC 1518 (QB)  per Tugendhat J. In Collins -v- Jones  1 QB 564, 571-572, Denning LJ said:
"In a libel action it is essential to know the very words on which the plaintiff founds his claim. As Lord Coleridge CJ said in Harris -v- Warre (1879) 4 CPD 125, 128: 'In libel and slander everything may turn on the form of words, and in olden days plaintiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them… In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends.'
Assuming that these letters did contain some statements defamatory of the plaintiff, that is not sufficient to ground a libel action. She must show what the actual words were. A plaintiff is not entitled to bring a libel action on a letter which he has never seen and of the contents of which he is unaware. He must in his pleading set out the words with reasonable certainty: and to do this he must have the letter before him, or at least have sufficient material from which to state the actual words in it. A suspicion that it is defamatory is not sufficient. He cannot overcome this objection by guessing at the words and putting them in his pleading. The court will require him to give particulars so as to ensure that he has a proper case to put before the court and is not merely fishing for one. If he cannot give the particulars, he will not be allowed to go on with the charge."
(7) These are not arcane pleading rules that serve no purpose. As made clear in the passage cited from Denning LJ, without the words being specified, it is impossible for the Court to determine whether the words conveyed any imputation defamatory of the claimant. In summary, a failure to specify the words complained of will mean that the statement of case will fail to disclose a cause of action and will be liable to be struck out pursuant to CPR 3.4(2)(a).
(8) Application of the same principle also prevents a claimant from pleading a specific publication and then alleging that there were further occasions when the defendant published defamatory words about him, without also specifying the precise words alleged to have be published on these other occasions. If a claimant wishes to bring a claim over alleged publication of defamatory allegations, and to recover damages and other remedies in respect of them, then each publication relied upon must be set out clearly in the Particulars of Claim: Bunt -v- Tilley  1 WLR 1243  per Eady J.
(9) The publication complained of by a claimant must be defamatory, both in the sense of being defamatory at common law and satisfying the requirements of s.1 Defamation Act 2013. In Gubarev -v- Orbis  EWHC 2912 (QB), Warby J explained:
 The common law requires that the offending statement should have a tendency to cause a substantial adverse effect on the attitude of other (right-thinking) people towards the claimant: Thornton -v- Telegraph Media Group  1 WLR 1985  (Tugendhat J). This is an objective test, depending on the extent to which the meaning of the words has an inherently harmful character. The requirement of more than minimal actual damage was recognised by the Court of Appeal in Jameel (Yousef) -v- Dow Jones & Co Inc  QB 946, where the Court held that the Human Rights Act 1998 imposed on it a duty to dismiss a libel claim which was so trivial that its continuation would involve a disproportionate interference with freedom of expression.
 The higher statutory threshold was laid down by s.1 of the Defamation Act 2013, which contains what I have called the serious harm requirement:
"1 Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant…"
 The correct interpretation of s 1 has been litigated as far as the Supreme Court, which has now confirmed that section 1:
"not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words": Lachaux -v- Independent Print Ltd  AC 612  (Lord Sumption, with whom the other Justices agreed).
The burden of proof lies, of course, on the claimant.
(10) The same strict rules about setting out the precise words that were published by the defendant and which the claimant alleges were false and published maliciously apply equally to malicious falsehood actions: see §26.42 Gatley on Libel and Slander (12th Edition, 2013, Sweet & Maxwell). Without the words, the Court cannot begin to assess whether or not they (or the allegation(s) they conveyed) were false.
(11) The elements of the cause of action are set out in Peck -v- Williams Trade Supplies Ltd  EWHC 966 (QB):
 At common law, a claimant in a malicious falsehood claim must prove publication to a third party of words referring to him, his property or his business which (1) are false; (1) were published maliciously; and (3) have caused special damage: Ratcliffe -v- Evans  2 QB 524, 527. As Bowen LJ observed in Ratcliffe -v- Evans, proof of damage was the "very gist of the action" (p.532). Malicious falsehood has been long recognised as one of the economic torts.
 In most malicious falsehood cases, the issue of falsity requires a determination of the meaning of the published statement…
 A claimant can be relieved of the obligation to prove that special damage was caused by the publication of the falsehood if s/he can rely upon s.3(1) Defamation Act 1952, which provides:
"In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage -
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication."
 The phrase "calculated to cause pecuniary damage" requires a claimant to show that it is more likely than not that s/he has been caused pecuniary damage by publication of the falsehood: Tesla Motors Ltd -v- BBC  EWCA Civ 152 . Nevertheless, the issue of causation remains important, whether a claimant relies upon a plea of special damage or upon s.3 Defamation Act 1952. Put simply, in s.3 cases, unless the Court is satisfied that the publication of the falsehood is more likely than not to cause pecuniary damage, the claimant will have failed to demonstrate this necessary part of his/her malicious falsehood claim.
(12) Also, from Tinkler -v- Ferguson  4 WLR 89:
 As to damages in malicious falsehood:
(i) A claimant can recover general damages under s.3(1) Defamation Act 1952 if s/he can show that the alleged false statements were more likely than not to cause him pecuniary damage: Cruddas -v- Calvert  EWHC 2298 (QB)  per Tugendhat J; Niche Products Ltd -v- MacDermid Offshore Solutions LLC  EMLR 9 [14(1)] per Birss J.
(ii) Pecuniary damage is financial loss or damage capable of being estimated in money (as opposed to compensated in money, e.g. general damages in defamation): Niche Products .
(iii) If the claimant's claim falls within s.3(1) Defamation Act 1952, the fact that s/he cannot demonstrate actual financial loss does not mean that the court must award only nominal damages: Joyce -v- Sengupta  1 WLR 337, 346H–347C per Sir Donald Nicholls VC; Niche Products [14(2)]; but the size of the award will necessarily be dependent upon the established impact of the publication of the falsehood and may, in some cases, be only modest: Fielding -v- Variety Inc  2 QB 841.
(iv) The Court of Appeal in Joyce -v- Sengupta (p.349A–B) left open the question of whether damages for hurt feelings could be awarded in a malicious falsehood action, but subsequently in Khodaparast -v- Shad  1 WLR 618 held that, if the claimant establishes an entitlement to damages for malicious falsehood, either on proof of special damage or by reason of s.3(1) , then the award of general damages may reflect injury to the claimant's feelings:  per Stuart-Smith LJ.
(v) Harm to the claimant's reputation cannot form part of the basis of an award of damages for malicious falsehood: Khodaparast at p.631H per Otton LJ; Joyce -v- Sengupta at p.348F–G per Sir Donald Nicholls VC; and Niche Products .
 … [E]ven where s.3(1) is relied upon, a claimant must be able to show that the damage suffered by him flowed directly from the untruth of the statements of which he complains, i.e. that the damage complained of is attributable to and caused by the falsehood: [Peck -v- Williams Trade Supplies Ltd  EWHC 966 (QB)] . Difficult questions of causation of damage can arise in many cases: see discussion in Niche Products . At the pleading stage, the claimant must identify (a) the nature of the loss which it is alleged the falsehoods caused; and (b) the mechanism by which s/he contends that loss is likely to have been sustained: Tesla Motors Ltd -v- BBC  EWCA Civ 152 ; Niche Products , .
Misuse of Private Information/breach of privacy
(13) The legal principles for claims of misuse of private information and now well-established and have recently been restated by the Court of Appeal in ZXC -v- Bloomberg LP  QB 28 - per Simon LJ. The Court applies a two-stage test. First, judged objectively, does the claimant have a reasonable expectation of privacy in the particular information? If 'no', that is the end of the case. If 'yes', the second question arises: in all the circumstances, is the reasonable expectation of privacy displaced or outweighed by countervailing factors? Those who have simply come under suspicion of commission of an offence by the police have, in general, a reasonable expectation of privacy in relation to that fact and an expressed basis for that suspicion: ZXC .
(14) At the second stage, conflicts between the parties' rights under Article 8 and Article 10, are to be resolved by applying the balancing exercise identified in Re S  1 AC 593  per Lord Steyn. At that stage, the Court will assess the rights of the claimant and any countervailing rights of the defendant under Article 8 and Article 10. The choice whether to disclose information, as part of personal autonomy, is an important dimension not only of Article 10 but also Article 8: Re Angela Roddy  EMLR 8  per Munby J; Duchess of Sussex -v- Associated Newspapers Ltd  4 WLR 35  per Warby J. Depending on the facts, the Article 8 rights of both parties may be engaged, particularly in the context of family life.
(15) To sustain an action for misuse of private information, the interference with the right to private life protected by Article 8 must reach a certain level of seriousness: M -v- Secretary of State for Work and Pensions  2 AC 91  per Lord Walker; R (Wood) -v- Commissioner of Police of the Metropolis  1 WLR 123 - per Laws LJ.
(16) I take the law that applies to a claim for harassment under the Protection from Harassment Act 1997 from Hayden -v- Dickenson  EWHC 3291 (QB) , particularly [44(ii)]:
"The behaviour said to amount to harassment must reach a level of seriousness passing beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody's day-to-day dealings with other people. The conduct must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability under s.2…"
Immunity from suit
(17) No person taking part in legal proceedings, including the judge, the advocates, the witnesses and the parties - can be sued for anything written or spoken in the course of the proceedings. The immunity is absolute and cannot be defeated even by proof of malice: Munster -v- Lamb (1883) 11 QBD 588, 607 per Fry LJ; Taylor -v- Serious Fraud Office  2 AC 177, 207F per Lord Hoffmann. The immunity from suit extends to statements made by the witness to a party and his legal advisers with a view to giving evidence: Watson -v- M'Ewan  AC 480; it also applies to out of court statements which can fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution: Taylor -v- SFO (Lord Hoffmann at 215 approving Drake J in Evans -v- London Hospital Medical College (University of London)  1 WLR 184, 192); and applies to the initial complaint to the police as regards a matter which might lead to a prosecution, and therefore to cover the initial complaint: Westcott -v- Westcott  QB 407. The only exception to immunity from suit is the tort of malicious prosecution: Roy -v- Prior  AC 470.
(18) In Singh -v- Reading Borough Council  1 WLR 3052, Lewison LJ summarised the boundaries of immunity from suit :
"(i) the core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;
(ii) the core immunity also comprises statements of case and other documents placed before the court;
(iii) that immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;
(iv) whether something is necessary is to be decided by reference to what is practically necessary;
(v) where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial inquiry, there is no necessity to extend the immunity; [and]
(vi) in such cases the principle that a wrong should not be without a remedy prevails."
Defamation and malicious falsehood claims
(1) the text message sent by the First Defendant to her father on 8 June 2018 (see  above): APoC§14(b)(1)(b); and
(2) the written statement made by the Defendant's solicitors in the Family Proceedings: APoC§14(b)(1)(d).
(1) by the First Defendant to the Second Defendant at some point in 2013 alleging that the Claimant had sexually assaulted her as a child (APoC§14(b)(1));
(2) by the Defendants to the police, which led to the harassment warning to the Claimant on 11 June 2018 (see  above);
(3) by the Defendants to NHT, which the Claimant alleges led to him being assaulted by her on 23 June 2018 (see  above);
(4) by the Defendants to the man who referred to the Claimant as a "paedophile" in the August Incident (see  above); and
(5) by the First Defendant to PUJ on 7 March 2020 (see  above, but which is not actually pleaded in the Amended Particulars of Claim).
Misuse of Private Information/Breach of Privacy
Should the Claimant be given a further opportunity to replead his claim
The Claimant's Application
Civil Restraint Order
Appendix – Redacted extracts from the Amended Particulars of Claim
[(1)] On or about 14th April 2010 thereafter and ongoing to present date. The Defendant's used their own children for the purposes of controlling, coercive or threatening behavior, which would provoke violence or abuse towards the Claimant whom did not comply with their instructions. In particular, refused the Claimant to have any sort of photography memoir with his niece or nephew and at regular intervals the Defendants would prevent the Claimant to see his niece and nephew if the Claimant did not do as they said. The Claimant would be prevented sometimes days, months, or years at a time where he would not be allowed to his niece or nephew. The 1st Defendant adjacent to this, would refused (sic) to speak or associate with the Claimant with to inflict emotional pain, distress and anxiety. On a date known only to the Defendants in the year 2013, allegedly by the 2nd Defendant. The 1st Defendant manipulated the 2nd Defendant and brainwashed him by lying and told the 2nd Defendant, clandestinely, that '... [the Claimant] was between age 11-17 sexually inappropriate to her...' On the 14th February 2014, clandestinely again, told the Claimant's Doctor's falsely that the Claimant had '... Whilst she was growing up, her brother used to behave very inappropriate towards her. She went on in the consultation to record that she "... is repulsed by sex as associates with this experience with a family member and that a sexual relationship is wrong and unhealthy..."
[(2)] After the 23rd March 2016, the 1st Defendant against the Claimant agreement. Told the 2nd Defendant what the Claimant had been arrested and reasons for. On or about the 23rd December 2016 the 1st Defendant whilst attending a pantomime with the Claimant and his niece […] after reconciling with the Claimant over a dispute of family photos. Told the Claimant he would 'never see the children again". This amplified his PTSD prolonging recovery (eggshell rule or talem qualem rule). The 1st Defendant instructed the 2nd Defendant prohibit the Claimant. On the 12th August 201 7 the 1st Defendant texted the Claimant advising she will tell his niece (god child) and nephew that he is "unsafe". On the 7th March 2018 the 1st Defendant text the Claimant saying she had "spoken to the police. Yours and our details have been logged with their safeguarding team" and had done so and threatened to make a false complaint for "harassment". Before the 21st May 2018 the Defendants told the Claimant parents about private correspondence between them and the Claimant about Family Court proceedings. On or about 1st June 2018 told about the Claimant's arrest to the Family Magistrates Court and unknown persons for the purpose of inflicting distress and anxiety to the Claimant. Thereafter prolonging and protract legal proceedings to present date and provoking hostility towards the Claimant via their Solicitor and eventually assaulted on about 23rd June 2018 and causing public disorder on the 17th August 2019. After the 2nd June 2018 the Defendants falsely alleged via CAFCASS, the Courts and the Claimant's Parents. (sic) That the Claimant had sexually assaulted her as a child between 11-17 year of age. About the 6th June 2018 the Defendants would stalk the Claimant's social media page. On or about the 8th June 2018 the 1st Defendant told Claimant parents he (Claimant) sexually assaulted her as child. This caused the Claimant father to threatened (sic) to leave him in a ditch.
[(3)] On the 11th June 2018 procured an email form (sic) [the] Police […] to threaten the Claimant with a complaint for harassment. On the 27th December 2018 the 1st Defendant without notice lied to obtained a non-molestation order and to prevent the Claimant further endeavouring legal proceedings and/or avoid service. The Defendants used intentionally a Police Office (sic) to intimidate the Claimant for service of the order. The Claimant was then prohibited from sending Birthday and Christmas cards to his niece and nephew. On and after the 3rd January 2019 1st Defendant made requests to the Claimant's parents to make the Claimant homeless "... I have made up my mind you can't give me what I need our relationship is over I needed emotional support I've begged for it you can't even acknowledge what he has done to me you say you couldn't throw anyone else he is sexually emotionally abused me (sic) ..." By June 2019 the Claimant became homeless and found alternative accommodation. In March 2020 the Claimant was notified he was under investigation by [the regulatory body for his employment] for a complaint relating to the 17 August 2019 incident. It's alleged this was made by the Defendants alleging abuse of position and/or poor professionalism.
[(4)] The Claimant claims damages for Harassment against the Defendants for pursuing a course of conduct that was oppressive and unreasonable and abuse of process to achieve, wrongfully, an outcome in their favor. In the case of Worthington & Anor v Metropolitan Housing Trust Ltd  EWCA Civ 1125. It is stated that Courts are well able to recognize the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable. The gravity of the misconduct must be of an order which would sustain criminal liability under section 2 [of the PHA]. The Court's also established in this particular case a Defendant can still even attract liability through litigation where on the face of it would be lawful but under sheep's clothing acted as a wolf, so as to abuse the legal system or procedures or exacerbate a claim or defense and/or cause an unnecessary legal action at the expense of the injured party to intentionally cause distress or anxiety. The Claimants case is that the Defendants, mainly the 1st Defendant, via actions of her own conduct and through their solicitors. Intentionally set about to cause alarm and distress to the Claimant in order to damage the credibility of the Claimants reputation shown in paragraph 14 (b), to cause and strain on the relationship between the Claimant and the Claimant's Father and Mother. To cause an aftermath event that would force the Claimant to be homeless by persuading the Claimant's Mother and Father to sell the family home in order not to live under the same roof as the Claimant. To also cement the distance between his niece and nephew. To also provoke fear and violence upon the Claimant. To an extent that the Claimant was struck and assaulted by a friend of the Defendants because of the legal proceedings. This caused substantial distress and anxiety and personal injury to the Claimant.
(b) Defamation of Character
[(1)] The Claimant claims damages from the 1st Defendant for slander for a statement made to the 2nd Defendant clandestinely in the year (allegedly) 2013, alleging the Claimant sexually assaulted her as a child. The Claimant claims damages against the 1st Defendant for 'targeted' libel defamatory statements made to the Claimant's father and mother and unknown persons. The Claimant claims damages in respect of defamatory libel statements made against the Claimant to the Claimant Father and potentially others unknown. The Claimant also claims against both Defendants for statements which were slanderous statements, alleging the Claimant is 'unsafe' to the Claimant niece and nephew, for statements stating he is a pedophile, a dangerous man, that he is harassing them and he sexually abused the 1st Defendant when she was a child and falsely alleging the Claimant's arrest 23rd March 2016 was because he was a pedophile. These statements libel or slander were made to persons known and unknown not involved in the legal proceedings and not in the connection of legal proceedings that would cause the reasonable right-minded person to hold the Claimant in contempt.
[(a)] The serious harm, caused the Claimant to loose (sic) work, cause him pay legal costs and expenses for the purposes of legal proceedings in excess of hundreds of pounds, caused damage to family reputations, caused the Claimant to be assaulted and damage to injury to feelings and his personal reputation between the 2nd Defendant, his family and in the community. The extent of the damage done was targeted to alienate the Claimant from those held dear to him or to impact him on his every day to day life. More than 9 members of his family no longer want to speak to him as result of the false statements.
[(b)] Privilege (Absolute/Qualified) does not apply as these statements were made outside Court and in the public domain and were not a fair contemporaneous and accurate statement or in the public interest and made with malice. The particulars of the slanderous falsehoods are, alleging the Claimant is 'unsafe' to the Claimant niece and nephew, for statements stating he is a pedophile, a dangerous man, that he is harassing them and he sexually abused the 1st Defendant when she was a child and falsely alleging the Claimant's arrest 23rd March 2016 was because he was a pedophile. These statements libel or slander were made to persons known and unknown. On or about the 8th June 2018 the 1st Defendant wrote by electronical communication to the Claimants father Which is stated as follows:- …
[the text of the message sent by the Claimant to her father is set out – see  in main judgment]
[(c)] It is this statement highlighted in bold and/or underlined that are defamatory. The Claimant affirms that they were untrue statements and that the ordinary meaning of these words were meant to be construed that the Claimant was a 'very dangerous person' that he would put 'himself and others at risk', and has 'no care for others' so is therefore selfish and loathsome and immoral. That it was intermated (sic) that the Claimant adds people on his Facebook page for the purposes of criminally sexual grooming people under the age of 18 years of age but also inferring an innuendo meaning including people under ages of 16 years of age in addition to those above 16 years of age. That the meaning of 'god knows what he does with them' was to infer or give an innuendo meaning that the Claimant could be having sexual relationships, even girls under the age of 16 years of age. That the meaning 'I've heard him talk to girls and medical professionals he is 'pervy' is to be construed or an innuendo as the Claimant is a pervert. That the meaning for 'he is not right in the head' was a meaning for the Claimant was insane or deranged psychopath person and the meaning of a 'bad person' was to mean in totality of what was already said in context that the Claimant was a pedophile, a deranged psychopath or was insane, and/or a pervert with no regards to himself or care for others.
[(d)] The Claimant also demonstrates by drawing inferences from extraneous facts, from false statements made in the cause of legal proceedings. Where the Defendants Solicitors stated:
[the written submissions of the Defendants' solicitors are set out – see [20(3)] in the main judgment]
[(e)] From these extraneous facts it can be easily agreed the Defendants are liable, jointly and severable as they went onto a campaign of discrediting the Claimant because of family photos and exploiting the Claimants unfortunate events that lead to no prosecution because as the Claimant puts it. There was no case to answer. The Claimant is entitled under Article 6 of the Human Rights Act 1998 to be treated as innocent until proven guilty. That the Claimant's case, is that of much similar to the case of Sir Cliff Richard v the BBC and The Chief Constable Police of South Yorkshire Police  EWHC 1837 (Ch).
[(f)] However that the enemy in the mix is the Defendants, who have maliciously set about to alienate the Claimant from the rest of the family.
[(g)] This caused damage to the Claimants reputation and damage to his privacy and cause anxiety and distress.
(c) Misuse of private information and breach of privacy
[(1)] It is admitted that the Claimant was arrested on about the 23rd March 2016 for suspicion, under the Sexual Offences Act 2003 relating to a compliant by a third person, not the 1st Defendant.
[(2)] Particulars of the alleged falsehood are; 1st Defendant between ages 11-17 years of age was sexually assaulted by the Claimant. The Claimant's case is that such did not happen at all and his case is the allegation is invented. It is also the Claimants case that the Defendants used the Claimant arrest information and fictitious allegation made by the 1st Defendant and portray them falsely as 1) the Claimant is a paedophile, 2) and/or either or both allegation is substantially true, when he/it is not.
[(3)] Further particulars of malicious falsehoods statements are that the Claimant has entered into inappropriate relationships with minors largely online. The Claimant's case is that did not happen at all and is invented to support the falsehood allegations above.
[(4)] Particulars of malice relied upon are, similarly outlined under Practice Direction 12J of the Family Procedure Rules 2010, paragraph 3 as "domestic abuse" which Includes any incident or pattern of incidents of controlling, coercive or threatening behaviors, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical. sexual, financial, or emotional abuse...". It is also further pleaded that the Defendants targeted selective persons associated with the Claimant and knew the allegations where not true, that the Defendants admitted openly they knew the allegation were not true, said in Court that the allegations were not true, signed a C7 Family Court form acknowledging they did not believe that the child(ren) named on the form have suffered or are at risk of suffering any harm. Persistently held claim that their feud with the Claimant was for family photos. Knew or ought to reasonably knew the information (Claimants arrest) they acquired was extremely sensitive and confidential. The Claimant expressly writing to the Defendants not publish the Claimants arrest to third parties and not to exaggerate those claims and did not comply with a Family Court Order stating not to disclose said information about the Claimant.
[(5)] The Claimant between on the 27th February 2018, 19th March 2018, 25th March 2018, 21st May 2018, 29th May 2018, 4th June 2018, and 7th June 2018. Sent letters to the Defendant's each marked "Private & Confidential". Those communications and the contents, amounted to private information. The letters were of sensitivity nature of anticipated legal proceedings or information about the Claimant's arrest that may harm relationships with the Claimant's Mother and Father or other third persons i.e. other family. The Claimant relies on Paul Burrell v Max Clifford  EWHC 294 (Ch); HRH Prince of Wales v Associated Newspaper Ltd  EWCA Civ 1776; Sir Cliff-Richard OBE v SYP & the BBC  EWHC 1837 (Ch) for the same reasons. The Defendant unlawful divulged that information to thirds person (Claimant's Parents, Police, Defendant's solicitors, and unknown persons not privy to the letters addressed to thwart legal proceedings and to caused distress, emotional harm and expenses to the Claimant.
[(6)] The Claimant claims damages for misuse of private information. The Defendants in their capacity as a family member misused their position in the family and abused the Claimants trust by using information in confidence which was concocted into a lie for the Defendants own gain, wrongfully and maliciously. This caused substantial distress and anxiety. The private information disclosed was the Claimant been arrested under a warrant under section 10 of the Sexual Offences Act 2003 and the Claimant denied the allegations. The Defendants then hijacked that information and turned it into falsely that the Claimant had:
From the age of 11 until late teens the mother was subjected to inappropriate sexual behavior and occasional sexual assault by the Applicant; The Applicant enters Into Inappropriate sexual relationships, largely online with teenage girls; he was arrested (but not charged) with the grooming of a 14 year old girl;
[(7)] In order to sway motion in their favor. The Claimant claims damages for breach of privacy. The Claimant is entitled to a degree of privacy. The Claimant is entitled to confidential and sensitive information not to be shared amongst others. The Defendants shared information and false information to other persons. That degraded the Claimant in such a way he feared from repercussions from the Defendant actions, causing stress and anxiety and personal injury. The 1st Defendant text message the Claimant on the 7th March 2018 stating: "Your details have been logged with safeguarding (police) team"
[(8)] The Defendants communicated with the Claimants Father and Mother detailing about private letters that were headed as 'Private and Confidential' from the Claimant to the Defendants. The 1st Defendant had communicated or intermated that on the 8th June 2018 that "I will tell whoever I need to about his extreme behavior's and the past." In July 2018 the Claimant was eventually assaulted by the Defendants friend as a result of Defendants informing others.
(d) Malicious Falsehood
[(1)] The Claimant has suffered actual damage/ loss which was calculated to cause financial damage to the Claimant and the statements were published in writing or permanent form or oral speech. It was also calculated to cause financial damage to the Claimant in respect to his office, professional calling, trade or business.
[(2)] The statements were not true and published maliciously and were made to the Claimants Father, Defendants Solicitors, Family Court, CAFCASS, [NHT], unknown thirds (sic) persons and Claimant's family. Particulars of malice relied upon are, similarly outlined under Practice Direction 12J of the Family Procedure Rules 2010, paragraph 3 as "domestic abuse" which includes any incident or pattern of incidents of controlling, coercive or threatening behaviors, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse...". It is also further pleaded that the Defendants targeted selective persons associated with the Claimant and knew the allegations where not true, that the Defendants admitted openly they knew the allegation were not true, said in Court that the allegations were not true, signed a C7 Family Court form acknowledging they did not believe that the child(ren) named on the form have suffered or are at risk of suffering any harm. Persistently held claim that their feud with the Claimant was for family photos. Knew or ought to reasonably knew the information (Claimants arrest) they acquired was extremely sensitive and confidential. The Claimant expressly writing to the Defendants not publish the Claimants arrest to third parties and not to exaggerate those claims and did not comply with a Family Court Order stating not to disclose said information about the Claimant.
[(3)] The statements are listed in 14(a) and (b) of the Particulars of Claim, save to repeat them again.
[(4)] The Claimant claims damages for malicious statements made to the Claimant's Father outlined in paragraph 14 (a) and (b) and contorting them into something malicious for their own wrongful gain. This caused anxiety and distress and financial loss and personal injury.
Schedule of loss/Remedy
[(1)] General Damages, which must be sufficient to compensate the claimant for the damage to their reputation: vindicate their good name; and take account of the distress, hurt and humiliation which the publication has caused. Case law indicates £15,000.00 to £175,000.00.
[(2)] Special Damages: Economic loss (2x shifts: at £60.00 each; £120.00), Personal Injury £500.00, Legal Expenses, Costs: Undetermined due this being ongoing but is more than £2,000.00.
[(3)] Aggravated Damages: Case law indicates £15,000.00 to £175,000.00.
[(4)] Statutory Interest pursuant to Superior Courts Act 1981 section 35A from the date of the first event.
[(5)] Injunctive Relief to restrain further publication, course of conduct. misuse of information.