Buq v Hre
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 07 May 2015 |
| Neutral Citation | [2015] EWHC 1272 (QB) |
| Court | Queen's Bench Division |
| Date | 07 May 2015 |
| Docket Number | Case No: HQ12X01042 |
[2015] EWHC 1272 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ12X01042
Matthew Nicklin QC (instructed by Eversheds) for the Claimant/Respondent
The Defendant/Applicant in person
Hearing date: 30 April 2015
Introduction
Three years ago, the claimant in this action for breach of confidence and misuse of private information obtained an interim injunction against the defendant, including an anonymity order, to prohibit the disclosure of information of a sexual nature. An injunction, with anonymity, has remained in place ever since. The claimant now applies for summary judgment. The core proposition advanced on his behalf is that findings made by the Employment Tribunal (ET), when dismissing with costs proceedings brought by the defendant against the claimant and others, make it clear beyond argument that the defendant has no answer to the claim.
The defendant has a cross-application, issued two weeks ago, which seeks orders for the committal to prison of the claimant for perjury or contempt of court, the discharge of the existing interim injunction, costs, and other procedural orders. His central claim is that the claimant has lied to the court in witness statements made in this action.
I have heard both applications in private, in order to maintain the anonymity of the parties and the secrecy of the information, until I could reach a conclusion. The defendant did not oppose the hearing taking place in private. This judgment is public, and for that reason needs to omit some identifying detail. It is possible however to give a reasonably full and clear account.
Summary
Having heard the parties I have concluded that the findings of the ET, which are binding in this action, leave the defendant with no realistic prospect of successfully defending the claim on the merits, and that the claimant is entitled to summary judgment. In the event, the defendant has not pursued his challenge to the injunction. Indeed, he did not oppose the grant of a permanent injunction in the same terms as the interim order. As explained below, I would in any event have granted such an injunction.
The defendant's allegations of lying cannot be finally evaluated on the evidence presently available. They cannot be upheld, but nor can they be dismissed as manifestly unfounded. The defendant needs permission to proceed, and his application is procedurally defective. The procedural defects are not trivial. The requirements that have not been met represent important safeguards for a respondent charged with quasi-criminal conduct. But the defects are curable, and it would be quite wrong to dismiss the defendant's application at this stage on procedural grounds. On the contrary, it is appropriate to grant the defendant permission to amend his application notice, and to give him an opportunity to put his evidence in proper form.
I am therefore adjourning that aspect of the defendant's application, with liberty to restore as an application for permission to bring proceedings pursuant to CPR 32.14 for contempt of court by making a false statement without an honest belief in its truth. I am giving directions to ensure that the procedural requirements of Part 81 are complied with.
It may be that, if the defendant is given permission and then succeeds in proving his allegations of contempt of court the court would, in addition to penalising the claimant, modify the injunction I am granting, and make costs orders in this action to reflect the facts found proved. I am therefore giving the defendant liberty to apply to vary the injunction in the light of any findings made on any application for committal, and I adjourn both parties' applications for costs, with liberty to restore.
However, my order does not contemplate that the injunction I have granted might be discharged if the defendant proves his case of dishonesty. Not only has the defendant not sought any order or provision to that effect, I also accept the submission for the claimant that in the unusual circumstances of this case the alleged lies, even if proved, could not provide the defendant with an answer to the claim. Lying to the court, if proved, is always a serious matter but, as the Supreme Court made clear in Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004, such behaviour will only exceptionally lead to the forfeiture of a remedy which the law would otherwise provide. Normally, penalties for contempt, which may be significant, coupled with appropriate costs orders, will be proportionate and sufficient sanctions. Here, the lies – if there were any – were incidental rather than central to the case. It is possible to say at this point that there is no real prospect that a court would find that the lies alleged, even if all were proved, would justify the removal of anonymity, or the refusal of an injunction to protect information which is private and intimate sexual information, the disclosure of which would lack any public interest justification.
The result of the applications is therefore that the claimant has obtained final judgment and a permanent injunction in substantially the same terms as the orders that have been in place since 13 March 2012; I have given directions to enable the defendant to seek permission to proceed with an application to commit the claimant to prison for contempt of court by giving dishonest evidence in witness statements; if the claimant is found to be in contempt the defendant can apply for an appropriate variation of the injunction, but not its discharge; the question of costs will await the outcome of any contempt proceedings.
Background
The claimant is the CEO of a substantial group of companies (the Group). The defendant was the managing director of one of the Group's subsidiaries. In March 2012 the claimant applied for and was granted an injunction to restrain the defendant from disclosing (a) information of a sexual nature consisting of or concerning text messages, sent by the claimant to the defendant in 2009 and 2011, relating to sexual activity or planned sexual activity between the claimant and others, and (b) photographs sent by the claimant to the defendant by email in September 2011. The injunction also prohibited the defendant from disclosing information liable to lead to the identification of the claimant as the subject of the proceedings. Such orders remain in force today, subject to some variations, one of which I shall come to.
The claimant's case when he first applied to Bean J at short notice on 13 March 2012 was, in summary, that in texts and emails to the defendant over the period 2009 to 2011 he had provided the defendant with information about sexual matters that was confidential, personal, and private, and photographs. It was said that there was no public interest in its disclosure. On the contrary, the public interest was said to favour an injunction as the defendant was blackmailing the claimant and the Group.
The blackmail alleged consisted of a demand for a huge and unjustified sum of money by way of "severance", backed up by a threat to make public private the messages and photos that had passed between the claimant and defendant, as well as allegations that the claimant and his wife (whom I shall call CLJ) of had sexually abused the defendant. Particular reliance was placed on an email from the defendant to the claimant of 10 February 2012 entitled "Notification of intention to make public and to shareholders of [the Group]". This contained a list of allegations of impropriety which the defendant proposed to publicise. The list included at 5 "Abuse of powers of a sexual nature by [the claimant]."
The claimant's case was that, whilst it did not affect the merits of his claims, the defendant's allegations were untrue. The claimant asserted that the reason for the blackmail threats was that the defendant had been found out in serious corporate dishonesty and was seeking to avoid the consequences.
The defendant's response, set out in correspondence from his solicitors, was that he had good claims for breach of contract, constructive unfair dismissal and sexual harassment, which he had been discussing with the "owner" — that is, the principal shareholder — of the Group. The defendant denied doing anything tantamount to blackmail. Through his solicitors he said that he regretted suggesting that he would make his allegations to the public generally, which had been a mistake. He was entitled to make his allegations to the Group and its shareholders, he maintained, as they were true. The solicitors said they had instructions to pursue proceedings in the Employment Tribunal (ET). They opposed any injunction that would restrict the defendant's right to pursue such claims. The correspondence was put before the court, but the defendant was not represented at the hearing before Bean J, who granted the injunction.
On 16 March 2012 the matter came back before Tugendhat J for further argument about whether there should be an exception to allow the defendant to pursue the threatened ET claims. On 2 April 2012 Tugendhat J handed down his reserved judgment on that issue. He varied the injunction to allow pursuit of the ET proceedings, ruling that it was a matter of high public importance that people should have access to a tribunal such as the ET, unfettered by those against whom they might make allegations in such a tribunal; that there was no real risk that the defendant would abuse the ET's process; and that the appropriate way to control any risk of unjustified disclosure in that context was for the ET to consider the exercise of its powers to impose reporting restrictions: [2012] EWHC 778 (QB) [70]–[74].
Apart from...
To continue reading
Request your trial