England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/05/2013

Mr Justice Tugendhat :

1. On 26 April 2013 HHJ Moloney QC, sitting as a judge of the High Court, granted an order until the return date Friday 3 May 2013. The main provisions of the order were to protect the Claimant's right to confidentiality and privacy in respect of certain personal photographs and information and, secondly to protect her from harassment in the form of communications addressed by the Defendants to herself and her employers to which she did not consent, and attempts by the Second Defendant to meet her, again without her consent.
2. The Claimant is a married woman living with her husband. She had an affair with the Second Defendant. The Second Defendant was at the same time in a relationship with the First Defendant. The Claimant wanted to bring the affair to an end and to remain with her husband. The Second Defendant wished to continue the affair, and attempted to persuade the Claimant not to end it. The First Defendant was aggrieved when she discovered the affair.
3. The information sought to be protected includes three photographs of a personal nature taken by the Claimant of herself and sent by her to the Second Defendant during the course of their relationship, together with personal text messages. These are all of a sexual nature, but could not be described as pornographic. Photographs and text messages of the Claimant came into the control of the First Defendant in circumstances which neither Defendant has been willing to disclose. In the absence of further information the court at any trial would be likely to infer that the Second Defendant disclosed the photos and information to the First Defendant.
4. In April 2013 the First Defendant sent to the Claimant's husband, to two of her friends, and to a friend of her husband, an email to which the three photographs were attached. The First Defendant included in the email a threat to inflict "enough pain and humiliation matching my own during your love affair".
5. In response to a letter of claim by solicitors for the Claimant the First Defendant replied:

"If I ever admit to sending those images or any future mail then paying damages would be far less damaging for me than the exposure and satisfactions I would receive by causing damage to you".

6. That is the last communication received from the First Defendant. She has ignored all subsequent letters and e-mails.
7. The Claimant gives evidence that the Second Defendant was on occasions violent and threatening to her, particularly while she was attempting to bring an end to the relationship. In a text message in April he wrote to her:

"I have been passive but I will become active if I feel you are getting carried away with anger and revenge, when in fact you and I were the people in the wrong. Seeking a pittance for damages which you will never receive will not justify the irreparable damage it will cause for you".

8. He attempted to meet the Claimant but she declined, explaining that she would not feel safe.
9. On 25 April in the early evening agents for the Claimant's solicitors attempted to serve a copy of the bundle of documents prepared for the application to be made before the judge on 26 April. The Defendants have an address where they live together in London. No one came to the door. The Claimant's solicitors also attempted to give notice by email to the addresses which the Defendants had been using. Neither Defendant attended on the application on 26 April. The order the judge made was substantially in the form of the Model Interim Non Disclosure Order referred to in the Practice Guidance: Interim Non Disclosure Orders issued by the Master of the Rolls in August 2011. I shall refer to an exception below.
10. The Claimant's solicitors gave notice by email to the Defendants of the order. The Second Defendant attended without notice at the car park outside the Claimant's place of work and attempted to speak to her against her will. He attempted to telephone her at work later in the day. By text message he acknowledged that he had received a copy of the order made on 26 April.
11. I am satisfied that at any trial the Claimant would be more likely than not to establish that the photographs and the other private information the subject of the claim ought not to be disclosed to anyone, and that the conduct of the Defendants amounts to harassment. Accordingly the Claimant is entitled to a further order substantially in the terms of the order granted on 26 April. At the hearing on 3 May I made such an order.
12. As mentioned above, there is one respect in which the order made on 26 April did not conform to the Model Order. There was omitted from it the undertaking in paragraph 4 in Schedule B of the Model Order. That is an undertaking to effect service by a specified date. There is nothing sinister in this omission, and solicitors for the claimant have attempted to effect service of documents, as described above. They have not been successful. The Claimant has offered to me on 3 May an undertaking to effect service of the claim form. However, it is important that the undertakings in the Model Order should all be included. If the draft put before a judge does not conform to the Model Order it is important that any addition or omission should be brought to the court's attention.
13. Mr Bennett read to the court on 3 May the terms of an email from the Second Defendant which indicated that he and the First Defendant may be willing to give permanent undertakings. If so the proceedings may well be settled on terms to be agreed. If they are not settled, then, as is now normal in privacy cases, the Claimant must proceed with the action in accordance with Civil Procedure Rules.