Kjo v Xim
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 07 July 2011 |
| Neutral Citation | [2011] EWHC 1768 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ08X05186 |
| Date | 07 July 2011 |
[2011] EWHC 1768 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ08X05186
William Bennett (instructed by Layzells Solicitors) for the Claimant
Ali Reza Sinai (instructed by Attwaters Solicitors) for the Defendant
Hearing date: 17 June 2011
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.
Mr Justice Eady:
Introduction
This litigation began at the end of 2008 and has made little progress. The unusual facts have led to hesitation and changes of direction as to how the claim should be pleaded. Some 20 years ago the Claimant forged a will purporting to be that of his maternal grandmother. This was detected and he pleaded guilty to two counts of forgery, being sentenced to nine months imprisonment in June 1992. He thereafter moved abroad and has lived in Hong Kong for many years, where he has held a number of posts in the field of investment banking.
The Claimant has been dogged for a long time by communications sent to various employers, potential employers and official bodies by his mother's brother, informing them of his conviction and sentence for forgery. He says that this only came to his attention in late 2008, as his uncle had been at pains to conceal what he was up to. A claim form was issued against him on 23 December of that year. His sole objective now is to prevent, by one means or another, any further publications of this kind. The Claimant argues that there can be no legitimate purpose served by the Defendant continuing his campaign. In so far as there ever was a legitimate purpose, that would have been exhausted years ago when the Defendant drew the facts to the attention of the police and the Hong Kong Monetary Authority. They took no action.
On 17 June 2011, a number of applications came before the court. The Defendant's application was issued on 2 March and the Claimant's is dated 7 June. They raise the following issues for determination:
i) The Defendant applies for security for costs.
ii) He seeks to strike out paragraph 16 of the Re-amended Particulars of Claim (relating to a claim in libel said to be time-barred).
iii) He was also asking that directions be given for the trial of preliminary issues as to the applicable law (which is no longer necessary).
iv) The Claimant applies for summary judgment on his claims based on privacy and data protection.
There was a further issue left over by the Master on 2 February 2011: the issue of costs in respect of claims discontinued. That soon resolved itself as the Claimant, through Mr Bennett, accepted that he should pay them. I shall return to the issue of security after addressing the merits of the claims as they now stand.
At common law, the conventional answer would have been that there was nothing the Claimant could do about his uncle's activities. There would be no claim for libel since, leaving aside any issue of qualified privilege, there would have been a defence available by way of justification. The law in England would have regarded truth as a complete and unqualified answer. Moreover, the law of Hong Kong, where most of the relevant publications seem to have occurred, would in this respect have been largely similar.
After abandoning some of his original causes of action, the Claimant consulted fresh lawyers who came up with a different strategy. Claims have been formulated on the basis of relatively recent developments in the law, namely the Human Rights Act and the Data Protection Act of 1998.
The application for summary judgment on the privacy claim
First, reliance is placed on the developing jurisprudence relating to private information, in the light of the Human Rights Act and the decision of the House of Lords in Campbell v MGN Ltd [2004] AC 457. Closely linked to that, the Claimant now prays in aid the policy considerations underlying the Rehabilitation of Offenders Act 1974. Were it not for these developments, I doubt that it would have even been argued that anyone was obliged to keep his wrongdoing quiet, least of all someone who was one of the victims of his criminal activity. Nevertheless, the Claimant now seeks an injunction against his uncle to restrain him from communicating any further information about the 1992 conviction. That is the only remedy he seeks.
There is no mention in the 1974 Act itself either of any right to confidentiality or of the issue of prior restraint. One would expect any such fundamental change in the law, if it was intended, to have been made expressly clear by Parliament. True, it does address the defence of justification and s.8 introduces the principle, uniquely, that such a defence can be defeated in this context on proof of malice. Yet a judge is only rarely going to be in a position to decide, in advance, that any proposed publication will be malicious. Correspondingly, the grant of an injunction based on an anticipated libel of this kind would be wholly exceptional.
It is common ground that the Claimant's conviction became "spent" in accordance with the statutory scheme in June 2002. Thereafter, submits Mr Bennett on his behalf, the Claimant would have had a reasonable expectation of privacy in respect of the fact of his 1992 conviction. Mr Bennett argues that the need for rehabilitation engages the values of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, since that is concerned in part with the right to develop as an individual, including in a professional context: Niemietz v Germany (1993) 16 EHRR 97 at [29] and Von Hannover v Germany (2004) 40 EHRR 1 at [50].
Obviously, no such claim was envisaged by the legislature at the time of the 1974 enactment. The limited protection it afforded, although undoubtedly intended to facilitate the desirable public policy objective of rehabilitation, consisted of certain carefully defined rights or privileges that could be said to involve an element of re-writing history.
Specifically, there are the provisions of s.4 and s.8 of the Act. By virtue of s.4 (1) a rehabilitated person shall be treated for all purposes in law as a person who has not been committed, charged with, prosecuted for, convicted of, or sentenced for the offence or offences which were the subject of that conviction. Furthermore, the effect of s.4 (2) is, as Mr Bennett points out, to give the relevant person a licence not only to conceal but also to lie about the fact of any spent conviction. If he states that he does not have a conviction, for example at the point of entering into a contractual relationship, that is to be deemed irrelevant to the issue of enforceability. Again, by reason of s.4 (3), a failure to disclose a spent conviction is not to be a legitimate ground for dismissing or excluding a rehabilitated person from employment.
Further provision is made, in s.7 (3), to the effect that evidence of a spent conviction is not to be admissible before a judicial authority unless justice cannot otherwise be done.
So far as defamation is concerned, s.8 introduced the novel principle, to which I have already referred, that a defendant who sought to rely on justification, and to prove the spent conviction for that purpose, would lose the defence if the claimant were able to prove malice. Apart from this context, it had always been accepted in that branch of the law that truth would provide a complete defence. Subsequently, of course, there have been further encroachments upon that principle through the law of privacy. If private information is revealed, whether defamatory or otherwise, it is no defence to establish, without more, that the allegations were true: McKennitt v Ash [2008] QB 73.
Questions have occasionally been raised about the compatibility of these provisions of the 1974 Act with the Convention, since they impose restrictions on the freedom to tell the truth and, by the same token, to receive accurate information: see e.g. the discussion in Carter-Ruck on Libel and Privacy (6 th edn) at 9–41 et seq. and Gatley on Libel and Slander (11 th edn) at 18.14. No doubt the argument would be raised in their defence that such restrictions are necessary and proportionate for the legitimate objective of rehabilitation.
It is important to note that Parliament, although it could have chosen to do so, did not make any specific provision whereby a rehabilitated person could prevent anyone from communicating the fact of a spent conviction (e.g. by way of injunction). On the other hand, in accordance with the common law, it might theoretically be possible to obtain an order to that effect if it were possible to prove in advance that any such publication would be motivated by malice: see e.g. Herbage v Pressdram Ltd [1984] 1 WLR 160. As I have noted already, that would be virtually impossible to achieve in practice.
In the relatively few cases in which it is possible to set up a case of malice, the argument will generally be based on the proposition that the individual defendant must have known that the defamatory words complained of were false, or at least have been reckless in that regard. That could hardly be put forward on the present facts, since the basic fact of the conviction is acknowledged to be accurate. Any plea of malice, therefore, would have to be advanced on the alternative ground, canvassed by Lord Diplock in Horrocks v Lowe [1975] AC 135, that the Defendant, while knowing the words to be true, published them with the dominant motive of injuring the Claimant's reputation. That is almost untrodden territory in the (more usual) context of qualified...
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