Alexander Aristides Reid v Katie Price
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 13 March 2020 |
| Neutral Citation | [2020] EWHC 594 (QB) |
| Docket Number | Case No: QB-2017-000020 |
| Court | Queen's Bench Division |
[2020] EWHC 594 (QB)
Mr Justice Warby
Case No: QB-2017-000020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Williams (instructed by Sanders Witherspoon LLP) for the Claimant
The Defendant did not appear and was not represented
Hearing date: 9 March 2020
Approved Judgment
This is an assessment of damages for breach of confidence, misuse of private information and breach of contract, and compensation under the Data Protection Act 1998 (“ DPA”). It follows an order made on 27 November 2019, by which the Defence was struck out and judgment was entered for the claimant on liability.
The factual and procedural background
The claimant and the defendant are both celebrities. He is a martial artist, known as a “cage fighter”, who appeared on and won the TV series Big Brother. She is a well-known TV personality and author. She is a former “glamour” model, who is also known by the stage name “Jordan”. In or about 2009 the claimant and defendant became a couple. On 2 February 2010, they were married. The relationship foundered within about a year, and a divorce was finalised on 20 March 2012.
During the relationship, in October 2009 and June 2010, the defendant obtained video recordings and photographs of the claimant engaged in sexual activity (“the Private Information”). As a result of disclosures later made by the defendant the claimant sought, and on 12 September 2011 the defendant gave, written undertakings to the claimant that she would not, except in certain specified and limited circumstances, publish or disclose or cause republication of the video footage or any stills, or any description of the claimant's sexual acts recorded on the footage.
In 2017, the claimant sued the defendant for all the wrongs I have listed above, as well as harassment, contrary to the Protection from Harassment Act 1997. His pleaded case was, and is, that on a number of occasions in and between about 2012 and 9 January 2018, the defendant disclosed all or part of the Private Information to third parties, numbering at least 50. He also complained that she had breached the undertakings by publicly describing one aspect of the Private Information. The claimant's claim was for an injunction to restrain further breaches of his rights, damages, and other orders. The Claim Form stated “Value: For issue purposes the Claimant's damages claim is limited to £25,000”. That limitation reduced the fee payable upon issue.
On 19 December 2017, an application was filed for an interim injunction pending trial, to prohibit disclosure of the Personal Information and any other processing of the personal data it contained. The claimant did not proceed with the application at that time. But on 16 April 2018, the harassment claim was dropped by way of an amendment and, at the same time, the claimant revived his dormant application for an interim injunction. On 25 April 2018, sitting in the Interim Applications Court, I heard an urgent application for such relief. I concluded that the time estimate of 1 hour was inadequate, and the matter was not urgent. I adjourned the application for hearing in May 2018.
On 18 May 2018, the application came before Jay J. The Judge heard Counsel for the claimant and the defendant, and read witness statements from each of them. Having considered the test provided for by s 12(3) of the Human Rights Act 1998, the Judge was satisfied that the claimant's prospects of success at a trial were sufficiently favourable to warrant the grant of interim relief. He made an order, which largely followed the Model Interim Non-Disclosure Order attached to the Master of the Rolls' Practice Guidance of 2011.
The order contained provisions requiring the defendant to deliver up to the claimant's solicitors within 48 hours all copies of the Private Information within her possession, and to provide disclosure of information, including details of what pieces of Private Information she had, and what she had done with them. On 24 May 2018 the defendant made a second witness statement, in purported compliance with those provisions.
On 14 June 2018, a Defence was served, admitting that the defendant had obtained the Private Information, but denying liability. The Defence maintained (among other things) that the recordings were made with the claimant's knowledge and consent; that the undertakings were non-contractual; that the defendant had not made any such disclosures as alleged; and that she had not retained any of the information since January 2014.
On 17 March 2019, the defendant gave notice that her solicitors had ceased to act for her, and that she was now acting in person. On 3 April 2019, the claimant's solicitors sent a hearing bundle for the case management conference to the defendant's home address by recorded delivery.
On 17 April 2019, the case management conference took place. Directions towards trial were given by Master Gidden. A trial date of 9 March 2020 was provided for, and directions for disclosure and exchange of witness statements were given. The Order contained a prominent warning to the parties that they must comply with the terms imposed by the order “otherwise your case is liable to be struck out”.
At a hearing on 27 November 2019, Master Davison determined that the defendant had failed to comply with Master Gidden's directions. He struck out the Defence, and directed that judgment be entered for the claimant for an injunction, to last until 27 November 2024 or further order; delivery up of any documents or devices on which the Private Information had been stored; and for damages and compensation, to be assessed at this hearing.
This hearing
The claimant is present and represented. But the defendant is not present or represented, so the first question for consideration is whether I should proceed in her absence. I have concluded it is right to do so.
Similar questions arose in Sloutsker v Romanova [2015] EWHC 545 (QB), where the defendant failed to appear at the hearing of her own application to set aside service of proceedings on her outside the jurisdiction, and in Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB) [2016] 4 WLR 69, at the hearing of the claimant's application for judgment in default against defendants who had been served, but whose identity remained unknown. In Sloutsker, I said this:
“22. Where a party fails to appear at the hearing of an application the court may proceed in their absence: CPR r 23.11. This is a power that must be exercised in accordance with the overriding objective. … the court should be very careful before concluding that it is appropriate to proceed in the absence of a litigant in person who is seeking for the first time to adjourn a hearing: Fox v Graham Group Ltd (26 July 2001) (Neuberger J); SmithKline Beecham Ltd v GSKline Ltd [2011] EWHC 169 (Ch) (Arnold J), para 6. That is not the situation here, however. The defendant has not sought an adjournment …
23. Where a litigant fails to appear without giving a reason it is necessary to consider first whether they have had proper notice of the hearing date and the matters, including the evidence, to be considered at the hearing. If satisfied that such notice has been given, the court must examine the available evidence as to the reasons why the litigant has not appeared, to see if this provides a ground for adjourning the hearing.”
In Brett Wilson [14–15] I adopted those principles, and added the following which is also pertinent in this case:
“In the present case … there is another important facet to the requirement of proper notice, in the form of section 12(2) of the Human Rights Act 1998. Section 12 is engaged because the order the claimants seek involves “relief which, if granted, might affect the exercise of the Convention right to freedom of expression” within the meaning of section 12(1). Section 12(2) prohibits the court from granting such relief if the respondent is neither present nor represented, unless satisfied “(a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.”
This is not the hearing of an application. It is a trial on damages and compensation. So the rule that applies is not CPR 23.11, but r 39.3 (“Failure to attend the trial”). Rule 39.3(1) is similar in some ways to CPR 23.11. It provides: “The court may proceed with a trial in the absence of a party …” But the position of a defendant who fails to attend a trial is different from that of a defendant who fails to attend the hearing of an application. In the latter case the court has an unfettered jurisdiction to “re-list” the application, on application or of its own initiative: see r 23.11(2) and n. 23.11.3. If judgment is entered after a trial in absence, the defendant can apply to set aside the judgment (r 39.3(3)), but the application must be supported by evidence (r. 39.3(4)) and the Court “may only grant the application if” the defendant acted promptly, had a good reason for not attending, and has a reasonable prospect of success (s 39.3(5)). This arguably calls for a more cautious approach to hearing a trial, as opposed to an application, in absence. That is the approach I take.
This case has another feature which was not present in Sloutsker or Brett Wilson: the defendant is a bankrupt. A witness statement of the claimant's solicitor, Mr Gir, dated 5 March 2020 informs me that the defendant was made bankrupt on 26 November 2019 (the day before the order of Master Davison). This means that the case engages the following provisions of s 285 of the Insolvency Act 1986:
“285 Restriction on proceedings and remedies
(1) At any...
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AXB v Hossam Metwally
...as to the reasons why the litigant has not appeared, to see if this provides a ground for adjourning the hearing.” 10 In Reid v Price [2020] EWHC 594 the defendant failed to appear at a trial on damages and compensation. Warby J observed at [14] that while the court may proceed with a trial......