AXB v Hossam Metwally
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 06 October 2023 |
| Neutral Citation | [2023] EWHC 2470 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2022-003802 |
[2023] EWHC 2470 (KB)
THE HON. Mrs Justice Steyn DBE
Case No: KB-2022-003802
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Iain O'Donnell (instructed by Slater and Gordon) for the Claimant
The Defendant did not appear and was not represented
Hearing dates: 4 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
Introduction
In 2013–2014, the Claimant, who was then 18–19 years of age, attended the Lincs Pain Clinic on up to ten occasions and received medical treatment from the Defendant, who was then a medical doctor, for back pain. This is an assessment of damages in a claim for personal injuries resulting from the covert recording, collating and retention of intimate personal video footage of the Claimant by the Defendant during those appointments. The video footage was taken without the Claimant's knowledge or consent.
On 25 February 2020, the police attended the Claimant's home and informed her that they had seized intimate video and photographic footage of her from a hard drive at the Defendant's clinic. On 29 February 2020, the police showed the Claimant a series of digital images seized from the Defendant's Clinic showing the Claimant undressing, wearing her underwear, being treated by the Defendant on the treatment couch when wearing knickers and a medical gown, and sitting on the treatment couch in her knickers with her breasts and upper body exposed. The digital images the police showed her also included still images captured from that video footage, including a close-up, zoomed in still image edited to show the Claimant from the waist up with her breasts and upper body entirely exposed.
The pleaded cause of action is for misuse of private information. The Particulars of Claim allege that at all material times the Claimant had a reasonable expectation that her privacy would be upheld by the Defendant; and that the covert recording, collating and retention of the video footage and images constituted a clear and obvious misuse of her private and intimate information. In short, the Claimant was owed an obligation of trust and confidence by the Defendant, who was at the material time her treating clinician; the covertly taken video footage of the Claimant contained confidential, intimate and private information belonging to her; and the Defendant misused the covertly obtained private information in the video footage by storing it and viewing it for his own voyeuristic sexual gratification.
Judgment on liability, with damages to be assessed, was entered in the claimant's favour by Master Sullivan on 3 January 2013 (and the order was sealed on 20 January 2023), the Defendant having failed to acknowledge service of the claim.
On 6 August 2021, the Defendant entered guilty pleas to voyeurism offences against the Claimant and another complainant, pursuant to section 67 of the Sexual Offences Act 2003. He was sentenced to concurrent terms of 6 months' imprisonment for the voyeurism offences, consecutive to a term of 14 years' imprisonment imposed in respect of other offending.
Voyeurism is an offence to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
Proceeding in the Defendant's absence
The Claimant appeared remotely via the court's Cloud Video Platform from her Counsel's chambers, as permitted by the order of Master Sullivan dated 21 September 2023. The Claimant's Counsel, Mr Iain O'Donnell appeared in person. The Defendant was not present or represented at the hearing. For the reasons which I gave in an ex tempore judgment at the hearing, I was satisfied that it was right to proceed with the trial in the Defendant's absence. As the Defendant was not present, I reiterate those reasons below.
Where a party fails to appear at a trial, the court may proceed in that party's absence: see CPR 39.3(1). This is a power that must be exercised in accordance with the overriding objective of dealing with a case justly and at proportionate cost, including so far as practicable, dealing with it in the ways identified in CPR 1.1(2)(a)-(f).
The Defendant did not seek an adjournment or give any reason for his non-appearance. 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, Warby J observed at [23]:
“Where a litigant fails to appear without giving a reason it is necessary to consider first whether they 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 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 in the absence of a party,
“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 (r 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.”
That is also the approach I have taken in this case. The Defendant is currently serving a sentence of 14 and a half years' imprisonment. On 23 May 2022, the Ministry of Justice provided the Claimant's solicitor with the name of the prison in which the Defendant is held, and with his prison number which has to be stated on all correspondence. On 4 July 2022 the Claimant's solicitors sent a letter to him at that address pursuant to the Personal Injury Pre-Action Protocol. The letter was addressed to “Mr Sondos Hossam Mohamed Hassan Metwally”, as that is the full name given for the name of the proprietor of his home address on the Land Registry, and included his prison number. The Defendant responded by an undated letter, written in manuscript.
In the letter, the Defendant stated:
“Couple of weeks ago I was handed a letter addressed to Mr Sondos Metwally. I explained to the officer that this is not my name, and refused to receive it.
The letter was hanging around in the office, until today, when I was asked to reply to you, and inform you that these are not my names. My name is not Sondos, my father's name, grandfather's name, and my great grandfather's name, all are not as per your letter.
The prison number, you were given over the phone is mine, but I am not Mr Sondos Metwally.”
The Defendant did not sign or give his name. In a postscript, he stated “ Your letter has been opened and resealed by the Prison Security.”
The Claimant's solicitor responded on 4 August 2022 asking for confirmation why, if that was not his full name, it was the name given on the Land Registry. The Defendant did not respond. However, Mr O'Donnell informed me that the Claimant's solicitor subsequently ascertained that the name given on the Land Registry was that of the Defendant's daughter, to whom the property had been transferred.
In these proceedings, the Claimant has identified the defendant as “Hossam Metwally”, which is the name by which he was identified when he pleaded guilty to the offence of voyeurism committed against the Claimant. The pleadings, evidence and orders have all been sent to him in that name, to the prison where he is detained, and giving his correct prison number. The correspondence includes:
i) A letter of 13 December 2022 enclosing by way of service on him the sealed anonymised claim form, the anonymity order, the Particulars of Claim, the Schedule of Loss, the report of Dr Sue O'Rourke dated 19 September 2022, and a response pack;
ii) a letter of 24 January 2023 enclosing the order giving judgment on liability sealed on 20 January 2023;
iii) a letter of 27 April 2023 enclosing the directions order of 26 April 2023;
iv) a letter of 19 June 2023 enclosing confirmation from the court of the trial date of 4 October 2023;
v) a letter of 27 June 2023 enclosing the claimant's list of documents and reminding him of the directions;
vi) a letter of 26 July 2023 enclosing the claimant's witness statement and reminding the defendant of the time for filing and service of his evidence;
vii) a letter of 1 August 2023 enclosing a further copy of the court notice of the trial date, and enclosing a pre-trial checklist, estimate of costs and proposed trial timetable;
viii) a letter of 21 August 2023 enclosing an updated Schedule of Loss and reminding the defendant of the date for filing and service of any counter schedule; and
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