BVG v Lar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 21 April 2020 |
| Neutral Citation | [2020] EWHC 931 (QB) |
| Docket Number | Case No: QB-2019-003105 |
| Date | 21 April 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 931 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: QB-2019-003105
Christina Michalos QC (instructed by Carter-Ruck Solicitors) for the Claimant
The Defendant in person
Hearing dates: 30 th March 2020
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.
This is an application by the Claimant to strike out the defence or, alternatively, for summary judgment to be entered in the Claimant's favour and for a permanent injunction.
The claim has two bases: (a) protection of private information and (b) prevention of harassment. Before the claim was issued, Master McCloud on 2 nd September 2019 allowed the Claimant to issue the claim anonymising both himself and the Defendant. The parties were permitted to file and serve pleadings and witness statements with confidential annexes if necessary.
The Claim Form was issued the same day.
On 6 th September 2019 there was a hearing before Murray J. for an interim injunction. He granted the injunction and also made various directions. He gave his reasons in a reserved judgment handed down on 11 th September 2019. This was a public judgment — see BVG v LAR [2019] EWHC 2388 (QBD). His judgment sets out, as far as is possible in a public judgment, the background to the litigation, which I gratefully adopt.
Particulars of Claim were served on 25 th October 2019.
The Defendant filed a Defence. It is not dated but I am told that it was served on 7 th November 2019. The present application notice was issued on 31 st January 2020. The evidence in support was the 2 nd witness statement of Persephone Bridgman Baker, dated 31 st January 2020. Ms Bridgman Baker is a lawyer with Carter-Ruck, the Claimant's solicitors. I am also referred to her witness statement, made on 30 th August 2019 and the 1 st witness statement of the Claimant, also made on 2 nd September 2019. Ms Bridgman Baker made another witness statement on 19 th March 2020. All of the witness statements and the Particulars of Claim have confidential schedules.
The Defendant relies on his witness statement of 11 th March 2020. He again denies that he has blackmailed the Defendant. The Defendant did not observe the restrictions in the practice directions made by Murray J. on 11 th September 2019. In accordance with those directions, my further references to his witness statement will be included in the Confidential Annex to this judgment.
The power to strike out a statement of case is in CPR r.3.4. The grounds upon which Ms Michalos QC, for the Claimant, relies, are in r.3.4(2)(a) and (c) namely that the statement of case (in this case the Defence) ‘discloses no reasonable grounds for …defending the claim’ and ‘there has been a failure to comply with a rule, practice direction or court order.’
Because of the Coronavirus epidemic this application was conducted by telephone. It began as a public hearing and two journalists at least were able to listen in to the call.
However, Ms Michalos applied for the remainder of the hearing to be in private. This was because the nature of subject matter was highly personal and could not easily be articulated if the hearing was in public. She referred me to MNB v News Group Newspapers Ltd. [2011] EWHC 528 (QB) in which Sharp J. was also dealing with a case of alleged blackmail. At [16] the Judge made the point that there cannot be a public hearing if the ordinary public procedure in court would jeopardise the very right which the Claimant is seeking to protect. Ms Michalos also submitted that, if the hearing was in public, the Defendant, who is representing himself, would find it more difficult to distinguish between information which could not be referred to in public without infringing the anonymity directions. LAR opposed the application. He disputed that he had blackmailed the Claimant and wished to oppose the Claimant's substantive application in public. I agreed with Ms Michalos that it was necessary for the administration of justice for the application to continue in private. As she submitted, it was not necessary for me, in reaching that conclusion, to make a finding that the Defendant had blackmailed the Claimant, but it would be enough if, on the evidence before me, I considered that there was at least a prima facie case that the Defendant had blackmailed the Claimant. I agree that there is such prima facie evidence (at least) and I also agree that the existence of such evidence is a further reason for holding the remainder of the application in private.
Although that was how the remainder of the hearing was conducted, there is more that can be said in this open judgment.
In a Confidential Annex to this judgement, I say more about the factual background to the case. That Annex will be distributed only to the parties.
I turn first to the application to strike out the Defence.
As I have said, this was on two bases. The first was that the Defence did not comply with the rules or practice direction. CPR r.16.5 prescribes what a defence must contain. It must address each of the allegations in the Particulars of Claim and state which is admitted, which denied or which the Defendant can neither admit nor deny. Where an allegation is denied, the grounds for doing so must be given. The Practice Direction to Part 16 of the CPR emphasises that a defendant should deal with every allegation in the way that the Rules require (see paragraph 10.2). In addition, r.22.1(1)(a) requires a statement of case (which a Defence is) to be supported by a statement of truth. Ms Michalos submits that the Defendant's Defence does not comply with these requirements. It does not address each of the allegations in the Particulars of Claim and say whether that allegation is admitted, denied or not admitted. Nor is the pleading supported by a statement of truth. Doing the best that they can, the Claimant's solicitors have prepared a table which sets out each of the allegations in the Particulars of Claim and specifies whether the Defence admits, denies or does not address the allegation. This is a useful exercise. It should be emphasised that the expression ‘NA’ in the table means that the allegation in the Particulars of Claim was not addressed, rather than ‘not admitted’, which is a common response in a Defence to allegations in Particulars of Claim. This table appeared in an exhibit to Ms Bridgman Baker's witness statement of 31 st January 2020. The Defendant has not suggested that it was inaccurate.
I say more about the Defence, the Defendant's witness statement in response to the present application and Ms Bridgman Baker's witness statement in reply in the Confidential Annex to this judgment.
While I accept that the Defence has the deficiencies of form of which Ms Michalos rightly complains, I would not, on that ground alone have struck out the Defence. The power in r.3.4(2) is discretionary. I am conscious that LAR is representing himself and, if the only complaint had been one of form, a strike out would have been an excessive remedy and a more proportionate remedy would have been to give the Defendant an opportunity to cure the errors by serving an amended pleading which did conform with the rules and the Practice Direction.
The second way in which Ms Michalos submits that the Defence should be struck out is because it does not disclose a reasonably arguable defence. There is in this respect a substantial overlap with the other remedy which the Claimant seeks, namely summary judgment. The relevant rule in this regard is r.24.2 which, so far as relevant says,
‘The Court may give summary judgment against a …defendant on the whole of the claim or a particular issue if –
(a) it considers that …
(ii) the defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.’
Ms Michalos submits that is this case. She argues that neither in his Defence nor in his witness statement in opposition to the present application (dated 11 th March 2020) is there a defence to the claim for misuse of private information or for the claim in harassment which in either case has a realistic prospect of success.
In his judgment on the interim injunction application at [13]–[19] Murray J. sketched the factual background to the claim. I cannot say more in this open judgment, save that, as I have already mentioned, the Defendant strongly refutes the allegation that he ever blackmailed the Claimant. I shall say more about the claims and their refutation in the Confidential Annex to this judgment.
So far as the Claimant relies on misuse of private information, there is a two stage analysis, as Murray J. said at [20]: first the Court must consider whether there is a reasonable expectation of privacy in the information in question (see Campbell v MGN [2004] 2 AC 457) and then consider what, if any, competing rights must be balanced against the Claimant's rights under Article 8 of the European Convention on Human Rights. Notably, these will include the Defendant's right of freedom of expression.
Misuse of Private Information: Does the Claimant have a Reasonable Expectation of Privacy in the Information in question?
A person'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).
At [22 (i)] Murray J. said this so far as that first stage was concerned:
‘The claimant's Article 8 rights are engaged by the defendant's...
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