WXY v (1) Henry Gewanter (2) Positive Profile Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 13 June 2012 |
| Neutral Citation | [2012] EWHC 1601 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X04089 |
| Date | 13 June 2012 |
[2012] EWHC 1601 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Slade DBE
Case No: HQ09X04089
Mr Aidan Eardley ( instructed by Archerfield Partners LLP) for the Claimant
Patrick Green QC and Kathleen Donnelly (instructed under the direct professional access scheme) for the Third Defendant
Hearing dates: 20 th April, 9 th-11 th May 2012
Judgment for the Claimant was given on 6 th March 2012 in her claim against the Third Defendant, Mr Burby, for injunctive relief restraining him from disclosing or publishing her private or confidential information and from harassing her and for damages for breach of confidence, misuse of private information and harassment. An application by Mr Burby to set aside the judgment has been dismissed.
Following hearings on 20 th April and 9 th-11 th May 2012 Mr Aidan Eardley for the Claimant and Mr Patrick Green QC for Mr Burby have helpfully identified the areas of the Draft Final Order which remain in dispute. These will be considered in two categories. First: whether material relating to items (2)(f), (k),(l) and (m), (3), (4) and (5) on the Confidential Schedule have entered the public domain so that further publication or disclosure of the information or allegations should not be restrained by injunction and whether such relief should be granted balancing the Claimant's Article 8 and Mr Burby's Article 10 rights. References in this judgment to paragraph numbers are to the Confidential Schedule unless otherwise indicated. Second, in the body of the order: what should be the territorial provision in all or part of paragraph 6, whether in paragraph 11 Mr Burby should be required to disclose the contact address of funders of his defence and the terms of liberty to apply provision in paragraph 17.
Confidential Schedule: Public Domain and balancing Articles 8 and 10
At trial it was held that none of the material on the Confidential Schedule had entered the public domain. Rightly both counsel based their submissions on the public domain issue in considering the final order in this case on material which came into existence after trial. In effect the parties relied on material which came into existence on or after the latter part of February 2012 when Mr Burby's Supplementary Evidence to the Parliamentary Committee ('the Supplementary Submissions') were put on the Parliamentary website.
Submissions of the parties
In the course of the hearing on 20 th April 2012 Mr Green QC divided the items on the Confidential Schedule into four categories. In Category 1 were matters 'of quintessential privacy in which there can be no public interest in its disclosure'. In Category 2 were matters 'that would fall within Category 1 as being quintessentially private but so inextricably linked with another allegation that the other allegation has to be considered on its merits and a balance struck between both of them'. In the third category 'are those matters which, in their own nature, are both such as to engage the claimant's Article 8 rights and the third defendant's Article 10 rights, having both aspects of privacy and aspects which engage Article 10'. However, included in the fourth category were 'the matters [are] prima facie not only matters of freedom of speech but also of obvious public interest'. Mr Green QC submitted that the categorisation was material to striking a balance between ECHR Article 8 and Article 10 in deciding whether to grant injunctive relief.
Mr Green QC did not resist the grant of final injunctive relief in relation to Category 1 material in the Confidential Schedule. These were all items in (1), (2)(a), (b), (c), (d), (e), (g), (h), (i) and (j). He rightly agreed that the evidence did not support a contention that material relating to item (6) on the Confidential Schedule had entered the public domain. There was no basis upon which a final order in relation to that matter could be resisted.
Mr Green contended that material which relates to the contested items on the Confidential Schedule has entered the public domain so that it is no longer private information and that final injunctive relief restraining its publication would be fruitless. In support of this contention Mr Green relied on material provided by Mr Burby and also that provided by Mr Bateman, one of the Claimant's solicitors. He contended that items (2)(k), (l) and (m) were matters of public interest although he agreed that public interest was dealt with in the judgment of 6 th March 2012. Further, balancing the Claimant's Article 8 rights with Mr Burby's Article 10 rights to freedom of expression, Mr Green QC contended that injunctive relief should not be granted.
In a Note dated 5 th March 2012, Mr Burby referred to the publication of his Supplementary Evidence and the 'worldwide media coverage' these had attracted particularly online but also in a print edition of a national newspaper. He relied on a letter from the Claimant's solicitors which asserted that if publication of Mr Burby's Supplementary Evidence continued then 'the injunction would be fully breached'. In support of his contention that matters which are in the Confidential Schedule to the interim injunctions and which are proposed to be included in the final order are in the public domain he produced screenshots of entries on three websites and stated that he would provide screenshots of further websites in advance of the hearing on 20 th April 2012. No further copies of published material whether on websites or in newspapers was produced by Mr Burby. Mr Bateman, one of the Claimant's solicitors made a statement (his eleventh) on 18 th April 2012 in which he set out
"our understanding of what has appeared in the press and what can be accessed online via relevant search engine searches."
Mr Bateman exhibited the material which he had found.
Mr Green QC relied on nine postings by six individuals on a website, ('W1') made on 1 st March 2012. They speculated on the identity of an individual related to items (2)(k), (l) and (m) on the Confidential Schedule. There was no evidence before the Court of the number of times the page was viewed either during the course of the exchanges on 1 st March 2012 or since.
Mr Green QC next referred to a screen shot of a foreign website entry of 2 nd March 2012 ('W2') which referred to an article in a national newspaper ('N1') which in turn referred to Supplementary Evidence given by Mr Burby to a Parliamentary Committee about the injunction against him obtained by an unnamed person. She was described by reference to her wealth and as having close connections to a foreign Head of State. He contended that this material related to items (2)(k), (l) and (m), (3), (4) and (5) on the Confidential Schedule. The next screenshot Mr Burby referred to was an entry of 7 th March 2012 on a website ('W3') referring to the judgment handed down in these proceedings on 6 th March 2012. The entry attached names to the Claimant and persons anonymised in those proceedings. Mr Green QC observed that as with the other website references, the number of hits on the site was not before the Court which is why he thought that more weight should be placed on the articles in the broadsheet newspaper and the websites of such newspapers.
The broadsheet material relied upon by Mr Green QC related to items (2)(k), (l) and (m) and also to solicitors' actions in relation to the postings on their website made by the Parliamentary Committee. The print articles appeared at the end of February and the beginning of March 2012. The name of a Head of State appeared in an online article of one newspaper, N2. The website entries of N1 related to items (2)(k), (l) and (m) and in one example to (5).
Mr Green QC agreed that the print documents referred to the Claimant generically without identifying her. The same generic terminology was used in each of the articles or web entries relied upon. The online version of one of the two newspapers whose article was relied upon appeared on its website at the end of February and was taken down by mid April 2012. Mr Green QC drew attention to one online article by N2 at the end of February which linked the Claimant who was generically described in all publications with a named Head of State. This article related to (2)(k), (l) and (m) material and (3).
Print editions and an item on N1's website at the end of February and the beginning of March 2012 referred to the Claimant's solicitors' alleged threats in relation to the Parliamentary Committee's website on which the Supplementary Evidence had been published. It also referred to threatened legal action against the newspaper. There was no information before the Court on how many people accessed these newspapers' websites or the relevant articles, however there were 14 comments on one online article published by N1 when looked at on 6 th March 2012. When looked at again on 18 th April some comments had been removed. Mr Green QC contended that this material was relevant to items (2)(k), (l) and (m).
Mr Green QC drew attention to the fact that an online article in mid April contained a hyperlink to the Supplementary Evidence given by Mr Burby. Accordingly it was contended that the evidence he gave to the Committee was in the public domain. There were other articles which had that hyperlink.
Further, Mr Green QC relied upon material obtained by Mr Bateman using a word search against WXY, 'who is WXY' and Mr Burby. By...
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Wxy v Henry Gewanter and Others
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