Avb v Tdd
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 12 May 2014 |
| Neutral Citation | [2014] EWHC 1442 (QB) |
| Docket Number | Case No: HQ13X02874 |
| Court | Queen's Bench Division |
| Date | 12 May 2014 |
[2014] EWHC 1442 (QB)
The Honourable Mr Justice Tugendhat
Case No: HQ13X02874
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett (instructed by Stokoe Partnership) for the Claimant
Alastair Wilson QC (instructed by Richard Slade and Company) for the Defendant
Hearing dates: 2nd, 3rd, 4th and 7th April 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant ("AVB") asks for an injunction to restrain the misuse of private and confidential information and harassment, and for damages. The information concerns in part the relationship between the parties and in part what the Defendant ("TDD") learnt about AVB's family and acquaintances in the course of that relationship. The relationship was that of a client and a sex worker.
AVB is a solicitor in his late 60s. He and his partners built up a well known small London firm from which he retired recently. There are three grown up children of his marriage. Two of them are daughters, one of whom was still at university in 2013 ("AVB's younger daughter"), the other of whom is seven years older ("AVB's elder daughter"). He and his two daughters both went to some of the best known universities in the country. AVB separated from his wife in 2008 and the divorce was finalised in 2010.
TDD is a woman in her twenties. She was born in China. She came to England to study at the age of 18. She married a fellow student when she was 20 and divorced three years later. TDD's parents are educated and well to do people. They live in China, and their views on her activities are important to her. They disapproved of her marriage and, for a period, withdrew the financial support they had been giving her. After her divorce she returned to study, attending a prestigious college in London, and choosing law as her subject. She turned to prostitution to make a living. She has kept this a secret from her parents who she says would disapprove. She has also kept it a secret from the college and from some of her friends, but not all of them. She advertised her services under false names through escort agencies.
The parties met in late March 2012 when AVB responded to one of the advertisements for her published by an escort agency. The events the subject of this litigation all occurred in the period March 2012 to May 2013. These events fall into three stages: March to September 2012, October 2012 and March to May 2013. AVB issued his claim form on 24 May 2013. On the same day I granted him a privacy injunction for reasons set out in the judgment I handed down on 20 June 2013: [2013] EWHC 1705 (QB). At that stage both parties had different firms of solicitors acting for them, and TDD had different counsel.
The Particulars of Claim were dated 21 June 2013. At the start of the trial I gave permission to AVB to amend the Particulars of Claim ("APOC") in a number of respects, but I refused permission for an amendment relating to events that occurred in February 2014. I gave my reasons for this decision in an ex tempore judgment on the first day of the trial. Each party blamed the other for the events in February 2014.
A Defence and Counterclaim was served on 22 July and a Reply and Defence to Counterclaim on 2 August 2013. In the Counterclaim TDD alleges that AVB harassed her. She claims damages for harassment against him, and an injunction to restrain him from further harassing her or attending at her home, or disclosing information about her sex work.
EVENTS LEADING UP TO THIS ACTION
The events that prompted AVB to sue were a telephone call from his younger daughter to him on Saturday 4 May 2013, and his receipt of emails from her. The emails were dated 4 May at 20:38 and on Monday 6 May 2013 just before midnight. He states that his daughter telephoned him distraught on 4 May saying she had received a series of messages from a person using the name "Mary Diaz", who she suspected might be a Brazilian impersonating a young woman who I shall refer to as Ms R, with whom AVB had been in a relationship in Brazil. The email from AVB's younger daughter sent on 4 May reads:
"I have just received a series of messages from Mary Diaz who I suspect is a fake alibi [Ms R] is using. To what extent the content of the indescribably sickening messages are true or not really doesn't concern me, either way this has all gone too far and I really don't think we are going to be able to have much of a father-daughter relationship from now on."
The immediate background to this is in part agreed, and in part disputed. There is no dispute that AVB and TDD had spent the night of 29–30 April together at AVB's flat. They had a serious falling out. He left home for his office, telling her he was going away from 2 to 7 May 2013, in fact to Brazil, although he states that he did not tell her where he was going. In the three day period starting Monday 29 April at 12:53 GMT and ending Thursday 2 May at 17:25 GMT they had exchanged some 360 text messages, about 10 from her for every one from him. The last one from her, at 17:24 GMT, reads: "Last report: This is my last text and hereby I reinforce that please don't contact me". His last at 17:25 GMT reads: "I am responding to your communications for clarity".
The relationship between them was not exclusively sexual. She had asked him for help with her legal studies, with her legal career, and, when the need arose, legal advice and representation. He had encouraged her expectations at the start of their relationship. He did in fact introduce her to a relation who is a Queen's Counsel, and to one or two other friends of his. They also got on well together when they were not quarrelling, since they had in common the cultural interests that two highly educated people often do have. He told her some information about his previous sexual affairs, including one affair with a woman at his place of work, and he told her some information about his Brazilian girl friends and the lawsuit he was engaged in with Ms R in Brazil.
Many of the messages they each exchanged are abusive, his particularly so. In a text messages sent on 11 August 2012 he explained this:
"… you are so easy to wind up … I like to arouse your darker side. Its so easy to do. You must learn to control emotions. This is the reputation of the orient. Be inscrutable. Lol."
On 30 April and 1 May she was asking him for help in writing to her College to make a complaint about a teacher. She claimed to be entitled to a certificate which was being withheld by the college, but which she needed to get admission to another institution. She said she was being accused of plagiarism. She offered sexual services in exchange for this help. She also asked for money for travel and tuition and for a reference as a paralegal. She told him the deal she was offering to another client of hers, who has been referred to as Mr X. He was an elderly man who came originally from another English speaking country and held a prominent position in life. Apparently she hoped that TDD would accept similar terms. She complained that he had been more generous to Ms R than to herself. To that AVB replied on 30 April at 20:14 GMT "ROT IN HELL HERPES MOUTH CHEAP HOOKER". He sent her a photo of another young Brazilian woman, Ms L, looking flirtatious in a bikini. However, TDD continued to text him asking for his help with her complaint to the college.
In the afternoon of 1 st May they arranged a sexual encounter over Skype. She then threatened to send, and then said she had sent, emails to his office address, which (as she mistakenly believed) would mean that his secretary would see it. He appears not to have believed her threat, but nevertheless replied at 20:04 GMT:
"If you do I will sue and get freezing order on your flat. Defamation harassment breach of confidence".
Both TDD's emails referred to sexual relationships which she alleged he had had with secretaries, clients and trainees of his firm. They were not in fact read by anyone at that time because she used an obscene email address, and they were diverted to a junk file. Nevertheless he complains of them in his Amended Particulars of Claim ("APOC") paras 22 and 23. The 17:37 email she sent to his office email address was headed "Where!!! —- please don't contact me any more!!!" and started:
"U can't just fuck hooker and kick them out!!! U dirty old man … Stop contacting me!!! And stop abusing me!! And stop asking for Skype to see my […]!!!"
The 17:53 email she sent to his office email address was headed "Abuse —- woman employee" and read:
"Please stop texting me and bragging about u abusing ur boss power to E and Previous J and previous trainees and made them [a sex act] for a pay check.
& the same time saying they r old saggy and butt ugly & they admire u as u r superior lawyer psychologically.
I don't want to know this
This is disgusting
Please don't contact me. Abusive pervert"
At 18:07 GMT he warned her against blackmailing him, but she replied she had already sent the email. At 20:05 GMT he complained that she had been with another man the previous evening and only come to his flat after that, at midnight.
There is no mention in these exchanges over Skype of him offering to pay for any of the sexual services she provided at his flat on these days.
In three text messages on 1 May which TDD sent at 20:22 GMT, 20:52 GMT and 20:56, and to which she received no response, TDD wrote:
"U hurt me. U use abuse me.
Never introduce me to family. Never want baby and marriage. We r never serious. u have [Ms L] and still...
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