On 21 April 2020, Nicol J granted summary judgment in a matter involving the online publication of covert recordings of intimate footage featuring both parties to the proceedings (BVG v LAR [2020] EWHC 931 (QB)).

He also granted a permanent injunction preventing the publication of the recordings, and preventing the Defendant from harassing the Claimant by approaching or seeking to communicate with him other than through his solicitors, effectively continuing, on a permanent basis, the interim injunction which had been granted by Murray J on 6 September 2019 ([2019] EWHC 2388 (QB)).

Background

The Claimant is a former businessman and civil servant, who is in no sense a public figure. The Defendant is a BDSM (bondage, discipline & sado-masochism) Master who was paid by the Claimant for BDSM services over a number of years, dating back to the 1990s.

During the course of that relationship, the Defendant engaged in the covert recording of a BDSM session with the Claimant. The existence of the associated recordings later came to light and the Defendant gave three sets of undertakings, in return for financial payments, that he would deliver up all copies of the footage to the Claimant and not seek any further monetary payment.  However, a pattern of conduct developed over the following years where the Defendant would periodically communicate with the Claimant, requesting money and making threats to expose the Claimant publicly, in conduct which the Claimant alleged constituted blackmail.

The current proceedings were prompted by renewed contact initiated by the Defendant in 2019, the contents of which the Claimant submitted were openly threatening. On 6 September 2019, the Claimant obtained an interim non-disclosure order at a hearing at which the Defendant attended as a litigant in person.  After the interim injunction was granted, the Claimant filed Particulars of Claim and the Defendant (still acting in person) filed a (defective) Defence, which failed to comply with the requirements set out in CPR 16.5, vigorously defending the allegation of blackmail in particular. The Claimant therefore issued an application seeking a strike out the Defence or, alternatively, requesting that summary judgment to be entered in his favour and that a permanent injunction be granted.

Due to the current pandemic, the hearing took place by telephone, with an initial (successful) application for the hearing to be held in private.

Judgment

Nicol J gave a public judgment, which was supplemented by a Confidential Annex distributed only to the parties. The judgment confirms various well-established legal principles in the areas of claim:

  • Misuse of Private Information (Article 8) – That matters pertaining to an individual’s sexual life and activities are a clear example of his private life which is protected by Article 8 – see for example Mosley v News Group Newspapers Ltd  [2008] EWHC 1777 (QB).
  • Misuse of Private Information (Article 10) – That it is doubtful whether there can be any Article 10 rights in relation to information concerning the claimant’s sexual behaviour, disclosure of which would contribute nothing to any debate of general interest  in a democratic society: Von Hannover v Germany [2004] EMLR 21 (European Court of Human Rights), confirmed in PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081. Where, as in this case, the claimant is a private individual, who is not a public figure, the argument is even stronger that information about his private sexual activities does not engage Article 10 at all.
  • Harassment – Warby J noted in LJY v Persons Unknown [2017] EWHC 3230 (QB) at [33] onwards that repeated threats to publish private information amounting to a course of conduct could amount to harassment, provided that it is calculated to cause alarm or distress and is oppressive – and that it is unacceptable to a degree that would sustain criminal liability.
  • Strike out – When considering whether the defendant has a ‘real prospect’ of successfully defending the claim, ‘The criterion which the judge has to apply under CPR Part 24 is not one of probability; it is absence of reality’ (Three Rivers DC v Bank of England (No.3) [2001] 2 All ER 513). The Defence must be more than merely arguable – see ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8].  As the White Book says the burden of proof rests on the applicant for summary judgment to establish that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason for a trial, but if the claimant adduces credible evidence to satisfy those two criteria, then an evidential burden passes to the defendant to show that the defence does have a real prospect of success or that there is some other compelling reason why there should be a trial.

Comment

 There are two points worth noting in this case.

The first is that the interim relief was sought relying on the existence of pre-existing contractual undertakings, but the claim was not based on breach of contract. Breach of contract is a cause of action which can be relied on by claimants seeking an injunction to restrain further publication of statements which the defendant had previously agreed not to publish, thereby giving effect to the contractual undertakings provided by the Defendant. The issues arising in such circumstances were examined in Mionis v Democratic Press SA [2017] EWCA Civ 1194.

In that case, the Court of Appeal noted that section 12 of the Human Rights Act “imposes an obligation on the court to uphold Convention rights when exercising its discretionary powers in the circumstances delineated in section 12”, and stated that in certain circumstances the Court could refuse to give effect to contractual terms, since it has

“a policing jurisdiction on the face of the legislation, from which the parties cannot derogate, including in circumstances such as those arising in the present case. In this respect, the court can take account of the public interest in receiving information, as well as the rights of the parties.”

However, it also considered that the fact that parties had voluntarily entered into a contract restricting their right to freedom of expression

“can be […] an important part of the analysis which section 12 then requires the court to undertake”, because “[p]arties are of course generally free to determine for themselves what primary obligations they accept; and legal certainty requires that they do so in the knowledge that if something happens for which the contract has made express provision, then other things being equal, the contract will be enforced (pacta sunt servanda). This is a rule of public policy of considerable importance.”

In the present case, whilst there was no claim in breach of contract, the existence of contractual undertakings, the events leading to, and following the giving of such undertakings were all relevant in establishing a course of conduct amounting to harassment. In this regard, Murray J noted at [25] (in comments adopted by Nicol J at [32]):

“Warby J noted in LJY at [33]-[37] that repeated threats to publish private information amounting to a course of conduct could amount to harassment, provided that it is calculated to cause alarm or distress and is oppressive and that it is unacceptable to a degree that would sustain criminal liability. I conclude that those criteria are satisfied prima facie in this case on the basis of the defendant’s course of conduct in his communications with the claimant, which have persisted despite contractual undertakings given by the defendant on at least three occasions and despite substantial payments having been made to him in exchange for those undertakings.”

The second point to note is that the Claimant was granted summary judgment and a permanent injunction despite Nicol J not making a finding in relation to the issue of blackmail. The blackmail plea was a key consideration in Murray J’s decision to grant interim relief: see [7(iii)] of his judgment. That plea also supported the Claimant’s application that the hearing proceed in private, since there is an established principle that the court must adapt its procedures to ensure that it does not provide encouragement or assistance to blackmailers, and does not deter victims of blackmail from seeking justice from the courts (as is made clear in ZAM v CFM and TFW [2013] EWHC 662 (QB) at [39]-[41] and [44] and in LJY v Persons Unknown [2017] EWHC 3230 (QB) at [2]).

At [35] of his judgment, Nicol J explained that “

While, on the material presently before me I do not consider that the Defendant’s response to that allegation has a realistic prospect of success, I recognise that the situation could possibly look different after oral evidence had been given.”

However, in the circumstances he accepted that it was not necessary for him to make a finding of blackmail in order to enter summary judgment/strike out the Defence on the harassment claim because

“the Defendant ha[d] no realistic prospect of defending the claims either for misuse of private information or for harassment and, the issue of blackmail aside, there [wa]s no other compelling reason why the case should go to trial.”

Despite the fact that no finding was made on the issue of the alleged blackmail, it is clear that the associated pattern of conduct was relevant to the remainder of the Claimant’s claims – with the Defendant’s repeated threats to publish the footage being self-evidently relevant to the Claimant’s claims for misuse of private information and harassment.

Mathilde Groppo is a member of the Paris Bar and of the Franco-British Lawyers Society and is practicing in England and Wales at Carter Ruck as a Registered European Lawyer, Persephone Bridgman Baker is a Senior Associate at Carter-Ruck