TRK and Another v ICM
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 08 November 2016 |
| Neutral Citation | [2016] EWHC 2810 (QB) |
| Court | Queen's Bench Division |
| Date | 08 November 2016 |
[2016] EWHC 2810 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN AN INTENDED ACTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Guy Vassall-Adams QC (instructed by Clarke Willmott LLP) for the Claimants
The defendant did not appear and was not represented
Hearing date: 4 November 2016
Judgment Approved
The first claimant, TRK, is a married man. I shall call his wife WRK. The second claimant, BVP, is TRK's lover. She is not married. Their extra-marital relationship began in March 2016. By July 2016 it had lapsed. BVP then entered into a sexual relationship with the defendant, ICM. In September, the relationship between TRK and BVP started up again. BVP carried on seeing ICM. For two months she was seeing both men. As her Counsel puts it, she was two-timing ICM.
On Thursday 27 October 2016 BVP ended the relationship with ICM. On the same day he found out from another source that she had been seeing someone else. It is what ICM did next that led to the application that was made to me by Mr Vassall-Adams QC on Friday, 4 November 2016, on behalf of TRK and BVP. They sought injunctions restraining ICM from engaging in harassment of them, and from making disclosures which they alleged would represent a misuse of their private information. Their case is that he has hacked into BVP's email; read private and confidential correspondence of her and TRK; acquired their private information; wrongfully used that information to harass both of them; and threatened wrongfully to disclose such information to WRK.
The application was made without notice to ICM, for fear that if notified in advance he might do the very things the claimants sought to restrain. In order to protect the information which is the subject of the claim the claimants sought orders for a hearing in private, anonymity, and restrictions on access to the court file. The application was supported by witness statements from each of the claimants, with substantial exhibits, and a Skeleton Argument of Counsel.
After reading the written material and hearing Counsel I reached these main conclusions: (1) the application was properly made without prior notice; (2) it was not necessary to hold the hearing in private; it was possible to conduct it publicly, providing all concerned were discreet in making public any identifying details, and appropriate orders were made for anonymity and limiting access to the court file; that is how the matter proceeded; (3) on the available evidence, the likelihood that the claimants would obtain injunctions at trial in the terms they sought was sufficient to justify the grant of short-term injunctions, pending a hearing on notice to the defendant. The injunctions were granted for 7 days.
I gave short reasons for those conclusions at the end of the hearing, so that they could be recorded and passed to the defendant in the note which the claimants are required to serve. This judgment gives a more detailed explanation. I required the claimants to give an undertaking to serve this judgment on ICM as soon as possible in its approved form. That will have happened before it is made public.
The facts
I need not elaborate on the account of the parties' relationships that I have given at the start of this judgment, except to say that WRK knows nothing of her husband's infidelity. I should set out in outline what happened next, according to the claimants. I shall not put in all the details, as some will tend to identify at least some of the parties to some people. At this stage I have only the claimants' side of the story. But much of it is backed by documents. And Mr Vassall-Adams has fairly highlighted the points he considers need to be brought to my attention as matters the defendant might rely on if he was present.
On 27 October, the claimants went out to see a film together at a cinema. It was later that evening that BVP ended her relationship with ICM. The following morning he told BVP that a work colleague of his had seen her going to the cinema with another man and accused her of seeing someone else, which she (falsely) denied. It appears from records exhibited by BVP that ICM found out about her two-timing some time on the Thursday evening, and acted on that knowledge before he called her. That is because at 23:18 on 27 November there was an unsuccessful attempt to access her Microsoft email account. This was done using the Chrome browser on an Android device from a specified IP address. ICM uses an Android device, according to the evidence. At 09:43 and 11:24 on 28 October there were successful sign ins to BVP's account from the same IP address, also using an Android device and the Chrome browser. A further six successful sign ins took place from the same address using the same device and browser in the course of the afternoon and evening.
That evening, the Defendant began what turned into a lengthy correspondence with BVP over WhatsApp lasting several days. He began by informing her he had "started drinking already". The messages were inconsistent. They alternately (a) wished the claimants well, naming TRK and expressing the hope that he would leave his wife; and (b) suggested that ICM was "tempted to" or would send an anonymous email to his wife, whom he also named. Such messages gave good grounds for suspicion, as BVP had never disclosed the fact of her relationship with TRK, let alone his name or that of his wife. BVP obtained the activity report I have described, and changed her password on 30 October.
On 30 October, BVP accused ICM of hacking her email account. He denied it. The accusation and denial were repeated several times. ICM gave a variety of false or at least implausible explanations of how he had obtained the information. Among his suggestions were guesswork, Google searches, and detective work using information on Facebook.
At 09:13 on 30 October TRK received an email from ICM to his work email address in which the Defendant threatened to tell WRK about his infidelity unless TRK did so himself. The following day ICM asked BVP to "give me one good reason why I shouldn't tell [WRK]" and said that it was "time to find a postbox". BVP read this as meaning that ICM intended to send copies of the emails by post to WRK. On 31 October it seems that one or more third parties made attempts to inform WRK, by other means. TRK's evidence is that he does not believe this led to her becoming aware of the truth.
A warning letter was sent to ICM on 1 November by the Claimants' solicitors. He did not reply to that letter or instruct solicitors to do so. But on 3 November he sent BVP a long email. In that email ICM admits to "looking at someones private correspondence", apologises for his actions. He says he never "had proof of the affair" and claims that he "was never going to send anything to [WRK]". On the face of that email ICM wishes to put the episode behind him, and move on. He says goodbye.
Principles
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