Jrv v Brg
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 08 September 2023 |
| Neutral Citation | [2023] EWHC 2238 (KB) |
| Court | King's Bench Division |
| Docket Number | Claim No. KB-2023-003419 |
[2023] EWHC 2238 (KB)
Mr Justice Ritchie
Claim No. KB-2023-003419
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Blackburn (instructed by Duffield Harrison solicitors) for the Claimants
The Defendant did not appear
Hearing date: 6 th September 2023
APPROVED JUDGMENT
Judgment approved by the Court for handing down. This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be at 3pm on 8th September 2023
The Parties
The 1 st Claimant is a married man. His wife is the 2 nd Claimant.
The Defendant is a woman with whom the 1 st Claimant had an affair.
Bundles
For the hearing I was provided with a digital bundle. This contained: the draft Claim Form; the notice of application; witness statements from the Claimants and various exhibits of the Defendant's online Blogs and communications. (A “Blog” is a diary published online so the world can read it.)
Summary
On 6 th September 2023 I granted an ex-parte interim (short term) injunction in model order format to restrain the Defendant from publicising her affair with the 1 st Claimant.
The terms of the injunction granted included the following:
“Injunction
6. Until the return date on 14 September 2023 or further Order of the Court, the Defendant must not:
a. use, publish or communicate or disclose to any other person (other than (i) by way of disclosure to legal advisers instructed in relation to these proceedings (“the Defendant's legal advisers”) for the purpose of obtaining legal advice in relation to these proceedings or (ii) for the purpose of carrying this Order into effect) all or any part of the information referred to in Confidential Schedule 2 to this Order (“the Information”);
b. Make contact or communicate by any means with the Claimants, or any member of their families and their friends, by WhatsApp, email, telephone, social media or otherwise howsoever, or cause or procure any other person to make such contact, including, without limitation, causing or procuring the Defendant's daughter and/or the Defendant's friend Shanice to request to follow (which means online following) the Second Claimant;
c. follow online the Claimants or any members of their families or friends on Facebook, Instagram or other social media;
d. Make demands on the Claimants for money;
e. threaten violence against the Claimants;
f. make claims of rape, sexual assault and harassment against the First Claimant, except insofar as such claims are made to the Police or for the purposes of obtaining legal advice from the Defendant's legal advisers;
g. otherwise pursue a course of conduct which amounts to harassment of the Claimants contrary to the Protection from Harassment Act 1997, except that nothing in this Order prevents the Defendant from contacting the Claimants' solicitors;
h. publish any information which is liable to or might identify the Claimants as parties to the proceedings.”
This judgment contains the reason for granting the injunction.
Anonymity
The Claimants applied for anonymity. The general rule is that all hearings are to take place in public and the public have a right to see justice done and know what the Courts are doing. The Practice Guidance [2012] 1 WLR 1003 “PG 2012” at paragraphs 9–15 makes the principle of open justice in such applications very clear. Unless clear and cogent reasons are provided by the Claimants for a private hearing it will not be granted and the application will take place in public.
In Khan v Khan [2018] EWHC 241, Nicklin J was dealing with an application for anonymity in a harassment claim arising from a family dispute. He ruled as follows:
“32. In the area of media and communications law, issues concerning exercise of the Court's jurisdiction to sit in private and to anonymise one or more parties arise most frequently in privacy claims. When parties are anonymised, or hearings take place in private, that is because the Court has been satisfied that it is strictly necessary to do so. Usually, that is because, if the parties were named and the hearing took place in public, there is at least a risk (and in most cases an inevitability) that the Court by its proceedings would destroy that which the Claimant was, by those very proceedings, seeking to protect. That would be to frustrate the administration of justice.
89. There are very few privacy claims, in which interim injunctions are sought to prevent disclosure, where the parties are named. That is because, if the parties are named, the Court will inevitably have to deal in any public judgment with the private matters (the disclosure of which the claimant seeks to prevent) at a level of generality to ensure again that that which the claimant is seeking to protect is not destroyed by the proceedings themselves. The most important factor in favour of anonymising one or more of the parties is usually the fact that the Court is better able to explain in a public judgment why an injunction has been granted or refused”
CPR part 39 rule 39.2 requires hearings to be held in public and sub-clause (2) requires the Court to consider the duty to protect freedom of expression. Further, sub-clause (3) provides that the hearing must be in private if and only to the extent that the court is satisfied that one or more of the matters in (a) to (g) exists and that it is “necessary for the administration of justice”. The Claimant relied on (a), (c) and (g).
I consider that the Claimants' rights to privacy can be protected properly by less stringent restrictions than a private hearing: namely anonymity for the Claimants. Anonymity will prevent the hearing from defeating the object of the injunction and protect the Claimants' confidential information.
I granted anonymity to the Claimants in the following terms:
“ Anonymity
Pursuant to section 6, HRA, and/or CPR r 39.2 the Judge, being satisfied that it is strictly necessary for the proper administration of justice, ordered that:
• the Claimants be permitted to issue these proceedings naming the First Claimant as JRV and the Second Claimant as ARC, and giving an address c/o the Claimants' solicitors;
• the Claimants be permitted to issue these proceedings naming the Defendant, who is identified at Confidential Schedule 3, as BRG;
• there be substituted for all purposes in these proceedings in place of references to the Claimants by name, and whether orally or in writing, references to the letters;
• there be substituted for all purposes in these proceedings in place of references to the Defendant by name, and whether orally or in writing, references to the letters.”
Procedure – Notice – Ex-parte
I take into account paragraphs 18–21 of PG 2012.
Section 12(2) of the Human Rights Act 1998 [HRA] is particularly relevant and states that if the person against whom the application for relief is made is neither present nor represented, no such relief is to be granted unless the court is satisfied:
(a) that the applicant has taken all practicable steps to notify the respondent, or
(b) that there are compelling reasons why the respondent should not be notified.
I have considered the ex-parte nature of the application and was concerned that the Claimants had not written, through their lawyers, to the Defendant. However, on the evidence, the 1 st Claimant has twice requested the Defendant not to publish his confidential private information and once warned that legal proceedings would be taken if she did. In the face of these warnings the Defendant has gradually ramped up the disclosures. In addition, the Defendant tried to blackmail the 1 st Claimant less than a year ago and reported to 1 st Claimant to the police for rape probably without any genuine foundation (her emails and Blogs do not so assert) and threatened violence by her ex-husband's contacts, in these circumstances and particularly in the light of a journalist contacting the 1 st Claimant most recently, I consider that there are compelling reasons why the Defendant should not be notified.
The Chronology
The facts set out below are not my findings of fact, they are the assertions made by the Claimants together with the publications and written actions of the Defendant evidenced in the exhibits to the 1 st Claimant's witness statement dated 6.9.2023.
The 1 st Claimant is married to the 2 nd Claimant and lives in England. He chose to visit a dating website called “Killing Kittens” in January 2022. This offers casual sex and experimenting with group sex at sex parties with other consenting adults. He and the Defendant contacted each other and started an affair. He asserts that neither knew the other was married. In her later Blogs the Defendant asserted that the failure of the 1 st Claimant to disclose his married status was a deception.
All went well until August 2022 when mutual disclosure of each being married took place (according to the 1 st Claimant). In October 2022 the Defendant became pregnant. She asserted the 1 st Claimant was the father. She refused to have a DNA test to prove that assertion. That same month the Defendant made Facebook contact with the 2 nd Claimant but quickly withdrew it.
In December 2022 the Defendant sought to blackmail the 1 st Claimant by demanding £40,000 for a loft conversion and threatened to reveal private and compromising material to his wife and family on the internet if he did not pay up. The Defendant made threats to the 1 st Claimant that her “husband” knew people who would “visit” the Claimants' house, implying violence. The Defendant posted explicit photos and videos of the 1 st Claimant on her adult sex...
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