Harlow Higinbotham (formerly BWK) v Wipaporn Teekhungam

JurisdictionEngland & Wales
JudgeThe Honourable,Mr Justice Nicklin
Judgment Date24 July 2018
Neutral Citation[2018] EWHC 1880 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ16X04316
Date24 July 2018
Between:
Harlow Higinbotham (formerly BWK)
Claimant/Appellant
and
(1) Wipaporn Teekhungam
(2) Winton Anthony Perry
Defendants/Respondents

[2018] EWHC 1880 (QB)

Before:

THE HONOURABLE Mr Justice Nicklin

Case No: HQ16X04316

Appeal Ref: QB/2017/0270

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA & COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Lorna Skinner (instructed by Innovate Legal) for the Claimant

Chloe Strong (instructed by Gibson & Co Solicitors) for the Defendants

Hearing dates: 1 February 2018, 22–23 March 2018

Judgment Approved

Mr Justice Nicklin The Honourable
1

This is the Claimant's appeal from a decision of Master Yoxall on 23 October 2017. The Master struck out the claim as an abuse of process. Permission to appeal was given by Choudhury J on 20 December 2017.

2

The Claim Form was issued on 14 December 2016 and on that same date the Claimant sought and was granted an anonymity order by Deputy Master Sullivan after a without notice application. The Claimant did not seek an order anonymising either Defendant. As can be seen from the first page of this judgment, I have discharged the anonymity order. My reasons for doing so are set out below ([67]–[73]).

3

The Claim Form was served with Particulars of Claim on 20 December 2016. The claim is for misuse of private information, breach of confidence and for alleged breaches of the Data Protection Act 1998 (“the English Proceedings”). Before turning to consider the claim in more detail, I need to set out the background and history that gave rise to the dispute between the parties.

Background and history

4

The Claimant is a US citizen who resides and works in the USA. He married his wife in 1991. The First Defendant is a Thai national who lived and worked in Thailand until about May 2013. The First and Second Defendant are married and live in the Norfolk.

The Claimant and First Defendant's relationship

5

The Claimant and the First Defendant first met in 2001 in Bangkok. Shortly after that, they began a relationship. The details of the relationship I take from a witness statement filed by the First Defendant. The Claimant has served evidence in response, but he does not make any material challenge to her account.

6

The Claimant and the First Defendant travelled to Singapore in 2001. The Claimant told the First Defendant that he loved her and wanted to marry her. He gave the First Defendant an engagement ring and told her that he wanted them to have children, telling her that she was the perfect age to bear his children. The Claimant returned to the US, but the pair remained in contact. The Claimant would visit the First Defendant whenever he was travelling in South- East Asia. They met up, the First Defendant estimated, on average three to four times each year. The First Defendant became aware that the Claimant was already married in 2003. When they met in Japan in 2003, the First Defendant told the Claimant that he had to make a choice between his wife and her. The Claimant told the First Defendant that he could not bear to lose her. He returned to the US, but told the First Defendant that he wished to prove his commitment to her by marrying her in a Thai wedding ceremony. He was insistent that they should have children. Demonstrating perhaps some flexibility in his own moral code, the Claimant told the First Defendant that he was not prepared to conceive children outside marriage.

The Marriage Ceremony

7

And so, on 24 January 2004, the Claimant and First Defendant got “married” at a ceremony in Thailand. I have put inverted commas around married not in any way to disparage it, but because it is common ground that the marriage was not a legal marriage. The Claimant and the First Defendant nevertheless clearly treated it as being a significant event in their relationship. Although there is a dispute about the number of guests in attendance, the ceremony was by no means private. Photographs taken at the event have been provided and they show several groups of people were in attendance to witness the wedding. One photograph shows the Claimant and the First Defendant standing in front of what appears to be an 8-foot square sign bearing a large inscription “ Love Forever” over their two names. A woman is pictured to the couple's right holding a microphone, which I infer allowed her to address the audience of guests. The need for a microphone perhaps indicates that this was not a small intimate event, but a rather larger affair.

8

Prior to the wedding, the Claimant had accompanied the First Defendant to her home town to meet her parents. The Claimant paid a dowry to the First Defendant's father as the First Defendant says is traditional. The Claimant gave presents of gold, a diamond ring and a credit card that she was told that she could use (up to a limit of US$8,000 per month).

Birth of the Triplets

9

The First Defendant underwent IVF treatment which she described as concerted, intensive, and at times painful and distressing. It was ultimately successful. The First Defendant became pregnant and, on 5 November 2008, she gave birth to triplet sons. Following their birth, the Claimant sent a copy of his passport so that he could be included on the children's birth certificates as their father. The triplets were named after the Claimant's family and took the Claimant's surname; one of the sons was given the same first name as the Claimant.

10

The birth of the triplets received media attention in Thailand where IVF treatment (and associated multiple births) was (at least in 2008) relatively uncommon. The First Defendant and her sons were featured in a television news feature broadcast on Channel 7 news in Thailand. Although a recording of the item is not available, photographs of the First Defendant apparently being interviewed in her hospital bed (with the triplets beside her) have been exhibited to the Second Defendant's witness statement. He states that, in the broadcast, the Claimant, First Defendant and triplets were all named.

11

By January 2009, it appears that the First Defendant was contemplating what the future held for her children and her relationship with the Claimant. She was considering moving to Europe as she did not feel safe in Thailand and had sent an email to the Claimant on 3 January 2009 about her plans. I have not seen the full exchange (and the Claimant has apparently deleted all copies of his email correspondence with the First Defendant), but the Claimant replied to the First Defendant on 4 January 2009:

“Thank you for all your thoughts and thoughtful expressions. You are my first wife and the best wife by far that I could ever imagine.

I may need some time to develop concrete answers to all of your questions, but I don't need any time to tell you that I know what I want to do and that from November 5 [the birth of the triplets] you and our sons come ahead of everything else. Please don't be so concerned about money: it's not that important and there's always plenty of it.

I would like to hear more about what this opportunity in Europe is all about. I think it would be great if you could find a way to earn a living and make some kind of career. I worry about the risks and of course you've heard how badly some of these ‘opportunities’ often turn out. No matter what you do or what happens to you, my love, I'm always (ALWAYS) here for you.

I'll write again tomorrow when I've had a bit more time to reflect on everything that you are saying. I am proud to be the father of our three sons and even prouder to be honoured by calling you my wife, and I'll accept whatever are the consequences of those wonderful events in my life… I'm not shirking from this responsibility and challenge, and I know you aren't, and that you'll let me know what we need to do to make this work…”

12

Nevertheless, the relationship between the Claimant and the First Defendant broke down towards the end of 2009. The Claimant says that the cause was his discovery that the First and Second Defendants were having a relationship. There were disagreements between the couple as to the Claimant's provision of support for the triplets.

The First Thai Proceedings

13

In March 2010, the First Defendant commenced proceedings in Thailand seeking an order for child support (“the First Thai Proceedings”). One immediate consequence of the First Thai Proceedings was that they led the Claimant's wife to discover the Claimant's relationship with the First Defendant. She did so when she saw correspondence relating to the case that had been delivered to one of their homes. In his Particulars of Claim the Claimant states that, on 5 September 2009 he told his wife of “ the fact of his relationship with the First Defendant and of his paternity of the boys”. He maintains that the Claimant and his wife “ continued to maintain secrecy in relation to these matters in relation to his friends and business associates.”

14

At first instance in the First Thai Proceedings, the Court found for the First Defendant and made an order on 21 December 2010 requiring the Claimant to pay a monthly sum (“the Child Support Order”). The Claimant sought to appeal that decision.

The Claimant's wife's claim in Thailand

15

Meanwhile, in January 2011, the Claimant's wife brought proceedings in Thailand against the Claimant and the current Defendants (“the Second Thai Proceedings”). In what under English law might be regarded as a somewhat ambitious claim, she sought repayment of sums that had been paid by the Claimant to the First Defendant during their relationship. I have been provided with a translation of a document filed in the Second Thai Proceedings that sets out the detail of the Claimant's wife's claim (“the Thai Claim Form”). In it, the Claimant's wife described herself as a “ civic leader, being a member of [a] famous or prominent family and being a famous...

To continue reading

Request your trial
10 cases
  • James Palmer v PC Colin Farmer
    • United Kingdom
    • King's Bench Division
    • April 28, 2023
    ...striking out on a Jameel basis. 51 The legal principles are not in dispute and are helpfully summarised in Higinbotham v Teekhungham [2018] EWHC 1880 (QB) at [44]. In my judgment, this is not a case where a real or substantial wrong has been committed and litigating the claim will yield a ......
  • John Alexander Melvin Hemming v Sonia Vanessa Poulton
    • United Kingdom
    • King's Bench Division
    • November 24, 2023
    ...of her and an abuse of process. This claim was therefore directly comparable to Higinbotham (formerly BWK) v Teekhungam and Perry [2018] EWHC 1880 (QB) at [65], where Nicklin J upheld a Master's strike out decision on this 222 The category of potentially abusive proceedings brought for an ......
  • President Donald J. Trump v Orbis Business Intelligence Ltd
    • United Kingdom
    • King's Bench Division
    • February 1, 2024
    ...Jones & Co Inc [2005] EWCA Civ 75 [2005] QB 946). But the categories are not closed.” 94 In Higinbotham (formerly BWK) v Teekhungam [2018] EWHC 1880 (QB), at [41], Nicklin J summarised the principles that apply where a party seeks to establish abuse of process on the ground of improper o......
  • Lidl Great Britain Ltd v Tesco Stores Ltd
    • United Kingdom
    • Chancery Division
    • June 13, 2022
    ...drew my attention to a helpful summary of the relevant principles on what is often referred to as “Jameel abuse” in Harlow Higinbotham (formerly BWK) v Wipaporn Teekhungam [2018] EWHC 1880 (QB) per Nicklin J at 44: “(i) The Court has jurisdiction to stay or strike out a claim where no real......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT