GYH v Persons Unknown Responsible for the Publication of Webpages Referring to the Claimant on http//www.fairfaxunderground.com; and https//breeding.zone
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 19 December 2017 |
| Neutral Citation | [2017] EWHC 3360 (QB) |
| Docket Number | Case No: HQ17M04368 |
| Court | Queen's Bench Division |
| Date | 19 December 2017 |
[2017] EWHC 3360 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ17M04368
Gervase De Wilde (instructed by Cohen Davis Solicitors) for the Claimant
The defendant(s) did not appear and were not represented
Hearing date: 14 December 2017
Judgment Approved
Introduction
The claimant applies without notice to the defendant for an interim non-disclosure order to restrain what she alleges is a campaign of harassment. The campaign consists mainly of the publication of various items or categories of personal information or purported information about the claimant. These include allegations that the claimant has HIV/AIDS, and other information or purported information about her sexual life, and her physical and mental health. It is the claimant's case that the allegation that she has HIV/AIDS is false, as is some of the other information about her.
Such information or purported information has been, and continues to be, published online at several locations. The claimant's case is that the publications have caused her considerable distress. They are said to amount to harassment by the misuse of private information. The claimant also maintains, as part of her claim, and as part of her argument in support of an injunction, that some of them are both defamatory and untrue. She relies on other more recent conduct as forming part of the same campaign.
This public judgment on the claimant's application is given after a hearing, the majority of which was held in public. Some short parts of the hearing had to be held in private in accordance with CPR 39.2(1)(a), (c) and (g), to avoid compromising the very privacy which the claimant seeks to protect. But it was possible to make public, without prejudicing the claims themselves, the nature of the application, all the legal issues, and a large part of the factual content. The same is true of this judgment, which will make clear what the application was about, and how and why I resolve it in the way that I do: by granting an interim non-disclosure order.
Procedural issues
Before addressing the merits of the application there are some procedural issues with which I should briefly deal.
First, there is the question of venue jurisdiction. The proceedings were started by a claim form issued on 1 December 2017, claiming damages and an injunction pursuant to the Protection from Harassment Act 1997 ("the PHA"). On the same day the claimant applied for and obtained anonymity orders, which are reflected in the title of the action. On 5 December 2017, the assigned Master ordered of his own initiative that the action be transferred to the County Court at Central London. That order was made in the exercise of the discretionary power conferred by s 40(2) of the County Courts Act 1984. Delay in the sealing and service of that order meant that the claimant pressed on with this application in the High Court in ignorance of the transfer order, and it was listed for hearing by me on 14 December 2017. I learned of the true situation late on the eve of the hearing. On the morning of the hearing it was possible to alert the claimant's Counsel to the situation and recover the file from the County Court. Mr de Wilde applied for an order for the case to be transferred back to the High Court. I granted that order, for the following reasons.
Section 41(1) of the County Courts Act 1984 provides that:
"If at any stage in proceedings … transferred to a county court under section 40, the High Court thinks it desirable that the proceedings, or any part of them, should be heard and determined in the High Court, it may order the transfer … of the proceedings or, as the case may be, of that part of them."
Factors to which the court must have regard when deciding whether to make such an order are specified in CPR 30.3(2). They include the following:
"(b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;
(c) the availability of a judge specialising in the type of claim in question and in particular the availability of a specialist judge sitting in an appropriate regional specialist court;
(d) whether the facts, legal issues, remedies or procedures involved are simple or complex;"
Mr de Wilde focused his submissions on paragraph (d), emphasising the legal complexity of the case. He also asserted that the case is inherently suitable for resolution in the Media and Communications List. There is certainly something in those arguments, as will become clear when I deal with the issues that arise on the merits. So far as the injunction hearing was concerned, however, I preferred to base my decision on the following factors, falling under paragraphs (b) and (c): in unusual circumstances, and through no fault of the claimant, the case had been put before a specialist High Court judge, with Counsel and the Judge fully prepared; it was inherently convenient for me to hear the application, rather than waste the resources of the Court and the claimant by requiring her to present the application to the County Court.
I concluded that it was better to transfer the case as a whole, rather than just the injunction application, because it seemed more likely than not that the proceedings would have only one further stage to them: a return date at which an application would be made for judgment in default, including a final injunction. It would be more convenient for that to be dealt with in the Media and Communications List, reserved to me if available. If, contrary to expectations, a defendant emerged to defend the claim the issue of transfer could if necessary be revisited.
The second procedural issue is the identity of the defendant. The claimant sues "Persons Unknown", coupled with descriptive wording referring to two world wide web addresses at which content of which the claimant complains has been published. I shall refer to the defendant as "he", because it seems most likely to be one male individual. It is open to a claimant who cannot identify those responsible for the conduct complained of to sue "Persons Unknown". The principles are identified in Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch) [2003] 1 WLR 1633. The court must however keep a watchful eye on claims brought against persons unknown, to guard against any abuse of the facility to bring claims in this way.
The third procedural point is linked to the second. Section 12(2) of the Human Rights Act 1998 prohibits the court from granting relief which might affect the exercise of the Convention right to freedom of expression unless it is satisfied "that there are compelling reasons why the respondent should not be notified or that the applicant has taken all practicable steps to notify the respondent." There is no suggestion that there are any good reasons for not notifying the defendant. The issue, so far as it is concerned, is whether all practicable steps have been taken to notify him.
The evidence before the Court describes in some detail the efforts made on behalf of the claimant to identify the person responsible for the offending publications. These efforts have been extensive and, in my judgment, thorough; but although the claimant can identify those responsible for the platforms on which the statements have been made, it has proved impossible to trace any individual who has posted those statements. The evidence was updated at the start of the hearing by means of a statement explaining the steps taken to prompt a police investigation, and the status of that investigation. I am satisfied that the claimant has taken all the steps that could be taken to identify a defendant who might be served with this claim, but without success.
There is another aspect to the section 12(2) issue. The skeleton argument for the claimant explains that one purpose of this application is "to serve the injunction on third party platform providers who are participating in the publication of harassing material about her in order to achieve Spycatcher relief". This of course is a reference to the doctrine that publication by a third party which is on notice of an interim injunction designed to protect confidentiality will be in contempt of court if they act so as to defeat or undermine the Court's purpose in granting that injunction.
The evidence explains that an injunction, if granted, will:
"… be used in an effort to bring the campaign of harassment against the Claimant to an end, by preventing further publication of the Claimant's private information and/or the defamatory allegations about her on the internet: it will be served on the platform providers which are hosting the pages containing that information, or which link to that information, and used in an effort to persuade internet search services … to de-list search results referring to the Claimant…" Second, the granting of an injunction may enable the Claimant to serve the injunction on the individual responsible"
The application thus engages the principles set out in the Master of the Rolls' Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003 ("the Guidance") at paragraph 19:
" HRA s12(2) applies in respect of both (a) respondents to the proceedings and (b) any non-parties who are to be served with or otherwise notified of the order, because they have an existing interest in the information which is to be protected by an injunction ( X & Y v Persons Unknown [2007] EMLR 290 at [10] – [12]). Both respondents and any non-parties to be served with...
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