WXY v Henry Gewanter and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 06 March 2012 |
| Neutral Citation | [2012] EWHC 496 (QB) |
| Date | 06 March 2012 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X04089 |
[2012] EWHC 496 (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 and Miss Clare Kissin (instructed by Archerfield Partners LLP) for the Claimant
No appearance for or by the Third Defendant
Hearing dates: 14–15 and 18–20 July 2011
The Claimant, who for the purposes of this action is described as WXY, seeks final injunctive relief restraining the Defendants from publishing or disclosing private or confidential information and from harassing the Claimant. She also claims damages for breach of confidence, misuse of private information and harassment. The Claimant is a wealthy woman with close connections with a foreign Head of State and his family. The First Defendant, Mr Gewanter, is a public relations consultant, the Second Defendant, Positive Profile Limited, his company and the Third Defendant, Mr Burby, their client.
In summary the Claimant alleges that the Defendants have published or threatened to publish, including on a website, 'A', operated by the Third Defendant, private and confidential information. It is said that this was done to harass the Claimant in order to put pressure on her to obtain payment of or to pay a Judgment Debt owed to the Third Defendant by members of the Head of State's family ('the Judgment Debt'). The principal categories of information in respect of which permanent orders are sought are: first an allegation that the Claimant had a sexual relationship with M ('the sexual allegation') and second that she lied in denying it in legal proceedings ('the perjury allegation'). Third, it was alleged that during 'pillow talk' with M the Claimant had told him that the Head of State had provided support for terrorism ('the terrorism allegation'). Fourth, information and allegations concerning attempts made by the Claimant to help the Third Defendant obtain payment of the Judgment Debt and of discussions about consideration of financial assistance to the Third Defendant by the Claimant. Fifth, information calculated to identify the Claimant as the Claimant in domestic and foreign proceedings against X.
There have been several applications in these proceedings which were heard before six different High Court judges. The first order granting an interim injunction was made by Maddison J on 9 September 2009. He described the factual background as complex, a description with which I wholeheartedly agree. The terms of the order precluded the First, Second and Third Defendants in England and Wales from:
(1) Publishing or disclosing to any person or institution any of the information set out in a Confidential Schedule to the order;
(2) Communicating to the Claimant (directly or indirectly) any threat to make such publication or disclosure as set out in (1) above, or making any request for payment or other benefit in return for not doing so;
(3) Otherwise harassing the Claimant.
The subject matter of the Confidential Schedule will be described as follows:
(1) Any information or allegation concerning any personal relationship of any kind between the Claimant and M;
(2) Any information or allegation known or believed by the Defendants or any of them to have been communicated by the Claimant to M including terrorism allegations;
(3) Any information or allegation relating to steps taken by the Claimant to secure payment of a Judgment Debt obtained by the Third Defendant (including the fact that such steps have been taken);
(4) The fact of and any details of any or any alleged discussions or dealings between the Claimant and the Third Defendant regarding the Judgment Debt and any information or allegation known or believed by the Defendants to have been communicated by the Claimant to the Third Defendant during the course of such discussions or dealings;
(5) Any information calculated to identify the Claimant as the Claimant in English proceedings against X or as plaintiff in proceedings in another jurisdiction against X and O (a company);
(6) Any allegation that the Claimant was involved in or responsible for the death of X.
Permanent injunctions are sought in similar terms.
As did all the other judges who heard the applications for interim relief, at the outset of the trial I made an order pursuant to CPR 39.2(3)(a), (c) and (g) that the hearing should be conducted in private because I was satisfied that having regard to the subject matter of the application – restraint sought of publication of information said to be private and confidential – making it public would defeat the object of the hearing. In my judgment it was in the interests of justice that such an order be made. That continued to be my view throughout the hearing of the trial.
Further, pursuant to CPR 39.2(4) the Claimant continued to be anonymised and other individuals whose naming may lead to the Claimant's identification are also referred to by letters of the alphabet.
Despite recent publicity describing the orders made in these proceedings as super-injunctions none of the orders made since the first injunctions on 9 September 2009 have been super-injunctions.
Preliminary Applications
There were several preliminary applications before me at the outset of the hearing. Mr Eardley with Miss Kissin appeared for the Claimant. All Defendants were represented by counsel for the purposes of the applications. All Defendants applied for an adjournment of the trial due to start on 11 July 2011. In light of a doctor's opinion of the health of Mr Gewanter, Mr Eardley for the Claimant acknowledged that he could not resist the application for the adjournment of the trial against the First and Second Defendants. An application for an adjournment made by the Third Defendant, Mr Burby, was refused by Mr Justice Tugendhat on 27 May 2011. An application by Mr Burby for permission to appeal that order and the refusal of a variation of interim injunctions was refused by the Court of Appeal on 6 July 2011.
Mr Burby also made an application under CPR 33.2 to place before the court witness statements or witness summaries from four witnesses. One witness summary was for M with whom Mr Burby alleged that it was possible that the Claimant had sexual relations.
On 13 July 2011 I granted on grounds of his ill health an application for an adjournment on behalf of Mr Gewanter and his company, Positive Profile Ltd. I refused the application for an adjournment on behalf of Mr Burby. Save in relation to part of the proposed evidence of one witness I ruled that witness statements or witness summaries be excluded from the trial against Mr Burby. In rejecting the application in relation to the witness summary served in respect of M I referred to the judgment of Rix LJ on 6 July 2011 in which he said:
'3. Now in his defence Mr Burby does not say that an allegation of a sexual relationship between the Claimant and M is true or that the Claimant has perjured herself in her affidavit at the beginning of these proceedings when she said that it was not true. What the defence says is that 'The Claimant's denial of the sexual allegation may be perjury'. When further information as to the nature of that pleading was sought it was given in these terms:
'The third defendant did not say that the sexual allegation is true or that he considered it true. The third defendant stated that he considered it possible that it is true.'
4. In the course of his submissions today on behalf of the applicant, Mr Burby by his counsel Mr Patrick Green has confirmed to the court that there is no positive case upon the pleadings that the sexual relationship existed or that the Claimant has committed perjury, only a putting to proof, and he has in effect accepted that no responsible counsel could plead a positive case without evidence for it.'
No application was made on behalf of Mr Burby to amend the pleadings. Accordingly his position on the sexual and perjury allegations remained as it was stated by the Court of Appeal: that Mr Burby did not assert that the sexual allegation was true or that he believed it to be so or that the Claimant had committed perjury, but that it was possible that the sexual allegation was true and that the Claimant's denial of the allegation may be perjury.
Counsel represented Mr Burby solely for the purpose of making the applications for an adjournment and to admit evidence under CPR 33.2 heard on 11 and 12 July 2011. They did not participate in the hearing of the claim against him after his application for an adjournment was refused on 13 July 2011. Mr Burby no longer attended court. In those circumstances in order to ensure as far as possible that Mr Burby was kept informed of the progress of the hearing, unusually the solicitors for the Claimant, Archerfield Partners LLP, agreed to communicate with Finers Stephens Innocent, solicitors who had previously acted for Mr Burby, who in turn kept him in the picture. Their actions are appreciated by the court.
Many of the issues relevant to the determination of the various elements of the claims in privacy or confidentiality and harassment were not in dispute. At the outset of the hearing nine other relevant issues likely to be disputed were identified. These were:
1. Whether the Third Defendant approached the press or just responded to their enquiries.
2. Who was responsible for making and publicising the publications complained of, including on website A.
3. The motive of each Defendant.
4. Whether the material published on website A was already in the public domain.
5. In the privacy complaint, what public interest is there in having the perjury allegation and/or terrorism allegations made known, balanced against the right to privacy.
6. Whether and...
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