EWQ v GFD [2012] EWHC 2182 (QB)

[2012] EWHC 2182 (QB)

Case No HQ12X02668

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/07/2012

Before

THE HONOURABLE MR JUSTICE TUGENDHAT

Between

EWQClaimant

GFDDefendant

Hugh Tomlinson QC (instructed by Brown Rudnick LLP) for Claimant

Charles Béar QC and Adam Tolley (instructed by ie Law) for Defendant

Hearing Hearing dates: 23 July 2012

Judgment

[1]On 29 June I heard the Claimant’s application for an injunction made without notice to the Defendant. I granted an injunction restraining the Defendant from disclosing private information, and from harassing the Claimant. The return date was 6 July. On that date the Defendant was represented and asked for an adjournment. She offered undertakings in similar terms to the injunction of 29 June (the terms are set out below at paras 48 and 49). The matter was adjourned until 23 July. On that day Mr Béar appeared for the Defendant. The Defendant offered a very limited undertaking in response to the claim for harassment. As to the remainder of the undertakings, she submitted that they should be discharged, because the Claimant could not satisfy the Court that he was likely to establish that publication of the information in question should not be allowed (Human Rights Act (“HRA”) s.12(2)(b)), or that more extended restraint against harassment was just.

[2]At the forefront of his argument in support of the application to discharge the injunction Mr Béar submits that there was material non-disclosure by the Claimant at the without notice application on 29 June. I shall therefore in the first instance take the facts as they were presented to me on 29 June largely from the skeleton argument of Mr Tomlinson submitted on that date and the first witness statement of the Claimant.

[3]Mr Tomlinson submitted that the application concerned the threatened disclosure of private information in circumstances amounting to blackmail. The Defendant, with whom the Claimant had an affair in 2010 had, over the course of the last year or so made regular demands for payment of sums of money under threat that she would tell his wife, his business associates, and/or the media about the relationship. This was the compelling reason why the Defendant should not be notified of the application (HRA s.12(2)(b)).

[4]I heard both the previous applications (29 June and 6 July) and this application in private. This was necessary partly because publicity would defeat the object of the hearing, and partly because, where such serious allegations are made against a defendant who has not previously been identified publicly, it would be unjust for there to be a public hearing (CPR r39.2(2)(a) and (e)).

[5]The application was made, and the order asked for was in a form, substantially in accordance with the Guidance issued by the Master of the Rolls in August 2011. The application was supported by a witness statement made by the Claimant and by the Claimant’s solicitor.

FACTS AS SUBMITTED TO THE COURT ON 29 JUNE

[6]The factual background as summarised to me by Mr Tomlinson in his skeleton argument was as follows: 1) The Claimant is a wealthy businessman who is married. He has two children, both of whom are under sixteen. 2) The Defendant is a Belgian national resident in this jurisdiction with whom the Claimant had a sexual relationship, beginning in March 2010 and ending by the end of that year, and occasional sexual relations thereafter, the final occasion being in about August 2011. The Defendant has a daughter now aged about 17 years. 3) The Claimant has provided very substantial sums of money to the Defendant. Historically, payments were made on a voluntary basis for two purposes:(a) In order to assist the Defendant with the development of her business and;

(b) To assist her personally. The amounts paid by direct transfer to the Defendant’s business total a very substantial six figure sum. The Claimant has also paid substantial sums directly to the Defendant. (The Defendant has not disputed that these amounts were paid). In addition, the Claimant has incurred other costs on the Defendant’s behalf. 4) Following the breakdown of the relationship between the Claimant and the Defendant, however, the Defendant began to demand the payment of sums of money on a regular basis as what she referred to as her “salary” on threat that she would reveal the Claimant’s private information to his wife and/or the media. 5) The Claimant paid the sums demanded to the Defendant because of her threats and because he hoped that, if she were to build up her business and be successful, she would no longer obsess over her relationship with him. 6) Whilst the threats began in June 2011, by early 2012 they became unquestionably overt. On 13 March 2012 the Defendant forwarded a series of emails the Claimant had sent to her back in 2010. She said that she had kept them all, along with pictures, and asked: did the Claimant want to “make her an enemy”? She later said that the Claimant would be divorced, would not see his children and she would ruin his business. 7) The Defendant made a series of further demands, for payment of “salary” and “investment monies”, to which she later added a demand for a Range Rover and a London apartment. On 19 March 2012 she demanded her “salary”, now €30,000 to €40,000, saying that if she did not have confirmation a general email would go to all the Claimant’s email addresses. 8) After further threats the Defendant suggested drawing up a “confidentiality agreement”. She sought a payment of £350,000. Negotiations were entered into but the Defendant continued to make threats. On 28 May 2012 she threatened a press article. 9) On 30 May 2012 the Defendant sent a message to the Claimant’s wife saying “I had a relation/been the girlfriend with your husband for 2 years…” Further threats of disclosure were made by the Defendant. 10) Although the Claimant instructed his lawyers to keep his negotiations on the confidentiality agreement going, he decided to seek legal advice on the possibility of injunctive relief.

[7]In his first witness statement the Claimant sets out what he said was the history of the relationship between himself and the Defendant starting in March 2010. The initial contact between them was on a purely business basis. The Defendant is a businesswoman. She runs a business through a company of her own.

[8]The Claimant states that he was attracted to her and agreed to support her business shortly after they first met. He made the first of a series of payments to help with the development of her business, in the sum of €50,000.

[9]By that time he states that he had been married for some 15 years and had two beautiful children, but that the relationship with his wife was at “rock bottom”. He attributed this to the long hours he spent on his business including travelling abroad. He thought then that he was likely to be divorced by the end of the year (that is 2010).

[10]He described how he and the Claimant met and frequently sent emails and messages to each other. Their meetings typically coincided with public events associated with his business interests. He introduced her to business colleagues of his. He says he introduced her to his colleagues as a friend. He also made introductions for the Defendant to help with her business, but on those occasions he kept private the true nature of the relationship between them. He states that all the money he paid to the Defendant was funded from his own personal resources, although some payments passed through accounts of his company.

[11]There then follows a paragraph which is relied on by Mr Béar in support of his submission that there has been material non disclosure. It reads as follows: “17. When things were good between us I was fairly open about meeting with the Defendant outside [my home country] but I never introduced her or presented her as my girlfriend. I should also say that given our relationship went on for around six months, I believe a handful of people on [a named business organisation] may have been aware of our relationship in particular senior management, as well as a small number of my closest friends. The number of people who knew was, at the most, a dozen – and probably considerably less.18. Notwithstanding this, everyone I am close to is incredibly discreet and respects my privacy. This was something the Defendant also understood, at least initially, and so I had no concerns about her not only sharing my bed but also very personal and private information about me, my family friends and business associates.

19. The Defendant was well aware of the high importance I placed on discretion, and confirmed her intention so to act on numerous occasions. See for example her emails to me in August, September and November of 2010 and February and November of 2011. She therefore knew only too well the importance of being discreet about our relationship and what she knew, and the damage she might do if she were to disclose such private information”.

[12]In paragraph 19 of the witness statement the Claimant identifies a number of the emails to which he refers. English is not the first language of either party, as appears from the style of their writing. They communicated in more than one language, but mostly in English. The e-mails include the following. 8 August:

“Maybe I am ruining it all but I simply don’t know how to change it? Since there is nobody I can speak open with about our relation (you’re married, I need to be discreet) I can’t ask not one close one for advice. You don’t talk to me neither about my feelings… anyway I am fed up of the crying, lying to the people around me and not being able to talk honestly… now I can’t carry it anymore, I am fed up lying to [her daughter]” 21 September 2010: “Can you fill in authorisation card or you want to book it for discretion reasons on my card!?...” 20 November : “… I loved you a lot and still love you but the way you have treated me is not correct… have a very nice weekend with your wife and remember that I have always been extremely discreet about our relations so you can continue playing your “happy life”.. 14 February 2011 “Subject: Valentine’s Day!... I never loved anyone like you … its not that I don’t respect or love you. I have enormously respect for you and my love never went away. I am just the wrong type to be put in this type of personal relations. My character is too strong. I want things in return “presents, time, notes” without this there is no way I will play the discreet sex mistress…”

[13]The Claimant then describes the breakdown of the relationship, referring to numerous emails in which the Defendant expressed her unhappiness, and in which she asked for, and he made, very substantial payments. He describes that they continued to meet at various public events, most of which were associated with his business. One event of particular note was in May 2011. The Defendant was angry when she saw him with another woman, grabbed his glasses and threw them to the ground. The Defendant also claimed that at that public event, in which she had had a business role, she had lost money for reasons she attributed to the Claimant’s business associates. She began demanding money from him on the basis that he was liable for the losses she had incurred because it had been his associates that had been involved. He was frustrated because he said that he had put a great deal of his own money into that event in order to make it a success for the Defendant’s business.

[14]He states that it was in June 2011 that the Defendant first began to make serious threats about revealing private information. The threats were to disclose to his wife, to his business associates, and sometimes to the whole world information about their relationship. On 27 June he sent her an email stating that she was blackmailing him. She replied the same day suggesting that they sit down and reach an agreement. Her email continues: “… its max 2 hours and then its closed! I will not call, text you any more, send emails, call the office. What I foresee if this situation continues like it is now and you keep on stretching it, one day it will explode and we can’t stop the whole damaging after effect. I don’t want it to end like that! And trust me you don’t want that neither”.

[15]On 14 July 2011 she sent an email “See you later at your office. Otherwise I will meet you at home. Can you please bring the contract with you…” He responded again accusing her of blackmail. He complained that she had started to send emails to his office again. They exchanged proposals for a financial settlement. Her proposals included that she be paid a “salary” of €5,000 a month for twelve months. In August 2011 she made complaints of his “dating this 20 year old girl from Bratislava”. This and other emails were sent to his office address. After further meetings and exchanges he agreed to make those monthly payments.

[16]The Claimant exhibits a Schedule of Payments explaining the total he had paid. In 2010 he paid in four instalments. In 2011 he paid in seven instalments. In 2012 he paid in two instalments, one in January and one in March. The instalments were sometimes in five figure sums, and sometimes in six figure sums.

[17]He refers to and cites messages exchanged throughout the rest of 2011 and into 2012. She refers to what she calls his “girl friend in Bratislava”.

[18]On 13 March 2012 she forwarded to him a series of e-mails he had sent to her in 2010. On the same day she wrote:

“For your info I kept all mails since March 2010 till now 2012 … As well did I keep the pictures from … 2010, I even have pictures for you at the … private viewing in … and your girlfriend. Is that really what you want to make me an enemy…”

[19]He states that he recalls a SMS which he no longer has along the lines “You will be divorced, not see the kids anymore as your wife will move [abroad], I will ruin your business”.

[20]On 15 March 2012 she wrote to him blaming him for the break up of a relationship she said she had been having with a man who worked for the Claimant. After addressing proposals he had made in respect of her demands for salary and other benefits, she added:

“… Due to this you can add another point on your listA CAR A Range Rover can be second hand not more than 1 year old in excellent condition …”

[21]Further exchanges followed, which included threats by her to send messages to all his e-mail addresses, and a reference to “pictures of your girl friend … the 25Y old”. These include further negotiations over payments and the Range Rover.

[22]On 9 May 2012 a solicitor for the Defendant (not the solicitor instructed on this application) emailed to the Claimant a draft of what the solicitor referred to as a “Confidentiality Agreement”. It is a two page document. It starts with a number of recitals. The second recital states that the Claimant has been an investor in the Defendant’s company. The third recital and other proposed terms include the following:

“[the Claimant] is forthwith withdrawing as an investor in [the Defendant’s Company] and accordingly: 1. He undertakes to leave any investment monies already paid with the Defendant’s company and there shall be no return. 2. Undertakes to pay [the Defendant] and her company… the sum of £350,000 in instalments of £50,000 per calendar month commencing 24 May 2012 and thereafter on 24th of each month up to and including 24 November 2012; 3. The parties agree that the first two instalments should be payable to the bank accounts of the company and of the Defendant personally are identified. 4. [The Claimant] also undertakes to pay [the Defendant] a salary of €5000 per month for three months commencing 1 June 2012 by way of [ bank details are given]… Confidentiality 4(1) [The Defendant and the Claimant] wish each other to be bound by confidentiality clauses in respect of their relationship generally, their businesses and this agreement. (2) It is expressly provided that there is no question of blackmail in this matter and each party is entering into this agreement of their own free will. (3) Neither party shall, except for the purpose of obtaining legal advice, disclose to any third party: a) the terms of this deed: b) any confidential information or documents relating to the other’s private life or business affairs; c) any details of their relationship whatsoever; d) any information given by or on behalf of the other; e) and to take all reasonable steps necessary to prevent these being disclosed to any third party. (4) Both parties shall be restrained from publishing or broadcasting in any newspaper, magazine, public computer network, website, sound or television broadcast or cable or satellite programmes or permit a third party to do so on their behalf any details of their relationship, business affairs or this agreement. (5) The confidentiality clauses in this Deed shall apply worldwide. Legal Advice (5) The parties have each taken separate and independent legal advice on the matters referred to in this Deed and intend that it shall legally bind them. Legal Fees (6) [The Claimant] undertakes to discharge [the Defendant’s] legal fees for obtaining and drafting this agreement and any negotiations thereto by 24 May 2012. (7) [The Claimant] undertakes to indemnify [the Defendant] for any tax due on the transfer of the £350,000 lump sum and the €5,000 per month salary”

. Confidentiality (2) It is expressly provided that there is no question of blackmail in this matter and each party is entering into this agreement of their own free will. (3) Neither party shall, except for the purpose of obtaining legal advice, disclose to any third party: a) the terms of this deed: b) any confidential information or documents relating to the other’s private life or business affairs; c) any details of their relationship whatsoever; d) any information given by or on behalf of the other; e) and to take all reasonable steps necessary to prevent these being disclosed to any third party. (4) Both parties shall be restrained from publishing or broadcasting in any newspaper, magazine, public computer network, website, sound or television broadcast or cable or satellite programmes or permit a third party to do so on their behalf any details of their relationship, business affairs or this agreement. (5) The confidentiality clauses in this Deed shall apply worldwide. Legal Advice (5) The parties have each taken separate and independent legal advice on the matters referred to in this Deed and intend that it shall legally bind them. Legal Fees (6) [The Claimant] undertakes to discharge [the Defendant’s] legal fees for obtaining and drafting this agreement and any negotiations thereto by 24 May 2012. (7) [The Claimant] undertakes to indemnify [the Defendant] for any tax due on the transfer of the £350,000 lump sum and the €5,000 per month salary”.

[23]On 13 May 2012 the Defendant sent an email to the Claimant to four different addresses including his business address: “Thank you for letting me know you don’t want to proceed with your own proposal. I know what to do now”.

[24]On 20 May after further communications she sent an email which included: “we had a past relation when you were married when I loved you like crazy. If you want me not to share that secret with others then I don’t have an issue with that, this is what I have done from the day I met you. Be discreet! As I said before, if you are good to me I will be good to you…if you don’t have time to call [the Defendant’s lawyer] hire another lawyer that will do it for you… you have a deadline which is 24th of this month when the first instalment of £50,000 plus 50% legal fees need to be in the account…”.

[25]On 21 May the Defendant wrote:

“You can call the lawyer today. And mail/call her regarding your amendment. The 24th is deadline. I don’t worry regarding the case you have against me. You know its bullshit. As you know… it would bring other “secrets” up pursuing me in court showing mails…”

[26]Later the same day she wrote:

“I haven’t received a proof of payment today… if I will not receive anything within the next couple of hours. A mail will go out to all your company addresses…”

[27]On 22 May at 12.03, in an email addressed to four of the Claimant’s email addresses, including business addresses, headed “Subject: I am coming…” the Defendant wrote “I didn’t hear anything from you, neither my lawyer. Its 12.00 I will leave today to … go to your office and house”.

[28]On 28 May the Defendant again wrote referring to “a Slovak escort”.

[29]On 30 May the Defendant wrote:

“ … you refused to pay my salary… all journalists in … know that you have a big problem. At 16.00 your time I need to give my approval on the article. I don’t want it to come so far! You have also been good for me in the past year when we had an affair that’s why I suggest. … Please transfer what is mine and lets split our ways. You know like me that this press article will create a lot of shit for you because everything you want to hide is coming out in public which will have a devastating effect in many ways …”

[30]Later the same day the Defendant wrote to her own solicitor copying the email to the Claimant’s solicitor including the following:

“… we both would like to close on this ongoing fight since if we don’t stop it will surely have a devastating effect. [The Claimant] is aware that I have to give my approval on some press articles regarding what happened for the same reason in … he thought that it was a lie and that I just said it to put pressure … I don’t have any problem showing the email correspondence with the press to…my lawyer… his issue is what he wants guarantees that I don’t go to the press, his wife and speak about our past or even what happened in … I suggest by latest tomorrow that a mail will be sent that the first instalment will be in the account by Wednesday next week. Salary is to be transferred tomorrow. I want this confirmation before the end of Thursday 31 May 16.00 … time. If not then I don’t want to proceed with the contract and I continue my own things.”

[31]On 31 May the Defendant emailed the Claimant with copies to her lawyer: “…You asked me not to speak to your wife about your girlfriends and so on. Just for your info there are more people that know you date(d) …[she identifies the names of women and towns in Slovakia]. Can I just suggest that you stay loyal to your wife from now on and stop dating all those teenagers from Slovakia and others. Its better to all of us if nothing comes out…”.

[32]On 1 June 2012 the Defendant sent an email concerning the message that she had sent to the Claimant’s wife.

[33]On 2 June 2012 the Defendant wrote: “I don’t need to lie or admit that I send an invitation plus text to your wife. It was written in the letter as you could read. Obviously the person lying here is you… your deal is off. The outcome from the press article is your responsibility. I will be more than happy to tell all the truth to your wife …”.

[34]Many similar emails are quoted in full in the Claimant’s witness statement. Referring to the message sent by the Defendant to his wife, the Claimant stated at para 114:

“I have, thus far, been able to explain the message away as malicious”, [for a reason he states, and he continues] “I am concerned that any future contact might lead my wife to suspect there is truth to the allegation. This will in turn cause many problems and much distress for me and my family….”

[35]The Claimant goes on to describe other personal information about himself which he has communicated by the Defendant. He then states the following under the heading “Damage and Harassment”: “128 The Defendants main threat is to disclose information to my wife and business associates although she has also threatened publication to the media. I am extremely concerned about the impact the disclosures would have on my wife and children. If my wife was contacted by the Defendant and told about my affair – or if she learned about it from the press – this would be a humiliation for her and would, I am sure mean the end of my marriage. Further as my wife is [from another jurisdiction], I am concerned that the end of her marriage to me would affect her tie with [the country where they live] and that she would seek to move away with the children. The impact of disclosure would be devastating for my marriage. This is certainly the view of the Defendant as she said in the message mentioned at [and he refers to a message she sent to him saying ‘you will be divorced, not see the kids anymore as your wife will move …, I will ruin your business…”].

[36]The Claimant goes on to state that publicity would be devastating for his children and he wishes to explain and apologise to his wife at a time of his own choosing in circumstances where his wife is not publicly humiliated.

CLAIMANT’S SUBMISSIONS OF LAW ON 29 JUNE

[37]In his skeleton argument Mr Tomlinson submitted that the approach of the court should be as in McKennitt v Ash

[2008] QB 73

para 11:

“where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If no, that is the end of the case. If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter enquiry is commonly referred to as the balancing exercise, and I will use that convenient expression. I take the two questions in turn. Some aspects of the jurisprudence overlap between the two questions, but it remains necessary to keep the underlying issues separate.”

[38]He referred to the need of the court to balance the Claimant’s rights under Article 8 and the Defendant’s rights under

Article 10 of the Convention

. He submitted that on the evidence the information “is not in the public domain but is known only to a small group of individuals”. Disclosure to the public generally would have a serious adverse affect on the children. He cited K v NGN

[2011] 1 WLR 1827

, amongst other authorities in this area of the law.

[39]In relation to the claim for harassment under the Protection from Harassment Act 1997 he set out the material terms, including the following: “"1(1) A person must not pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other…

(2) The person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.

(3) Subsection (1) … does not apply to a course of conduct if the person who pursued it shows – … (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. … 2 (1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence… 3 (1) An actual or apprehended breach of Section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question… 7(2) References to harassing a person include alarming the person or causing the person distress. (3) A 'course of conduct' must involve – (a) in the case of conduct in relation to a single person conduct on at least two occasions in relation to that person.…

(4) "Conduct" includes speech”.

[40]Mr Béarcited the material provision of HRA s12 (referred to above). He drew attention to the particular provisions of the draft order, and compared it to the model order. The model order does not include what has come to be known as a “friends and family” proviso and he submitted that Mr Tomlinson had made no mention of that. When Mr Béar raised this point before me on 23 July Mr Tomlinson submitted a form of proviso stating that the Claimant would have no objection to its inclusion as follows:

“Nothing in this sub-paragraph shall prevent the Defendant from … (4) disclosing the information for purely private and personal purposes and in confidence, that is on the express understanding that there will be no further disclosure of the information), to closest friends, their immediate family and professional advisors.”

[41]By 23 July the evidence consisted of two further witness statements for the Claimant, a second one by himself and one by a solicitor from the firm acting for him (but who is not the solicitor engaged in this action), and two witness statements from the Defendant, one responding to each of the two witness statements of the Claimant.

PARTICULARS OF CLAIM

[42]Particulars of Claim were served on 17 July 2012. The information which the Claimant alleges is private information which the Defendant published or threatened to publish concerning him is in four classes: i) The fact of his sexual relationship with the Defendant. ii) Details of his sexual relationship with the Defendant. iii) Details of his relationships with his wife and his children. iv) The fact or details of other sexual relationships conducted by the Claimant.

[43]The Claimant pleads that he has a reasonable expectation of privacy in respect of that information and he relies in particular on three factors:(1) the self evident personal and private nature of the information and in particular the fact that most of the information fell within the core aspects of private life protected by Article 8;

(2) the fact that the Defendant was at all material times on express notice that the Claimant wished to keep the information confidential, and

(3) the fact that the Defendant only learned the information from the Claimant as a result of her personal relationship with him, which relationship was itself conducted on terms of the strictest discretion.

[44]The Claimant pleads that the threatened disclosure of the information was wrongful and constitutes an unjustified infringement of his rights to privacy and a misuse or threatened misuse of his private information. He relies in particular on the following matters: i) The information was not disclosed or threatened to be disclosed by the Defendant in the proper expression of any Article 10 or proper exercise of any Article 8 rights, but with the express nefarious motive of coercing the Claimant into providing financial support for the Defendant and/or other benefits. ii) The Claimant did not consent to or otherwise authorise the publication of the information or any part of it. iii) The Claimant does not hold any official or public office or perform any official public duties. In publishing the information the Defendant was disclosing information about the private life of an individual who does not exercise an official function. The publication of the information was not capable of contributing to a debate in a democratic society relating to matters of public interest. iv) The information was unrelated to the professional career of the Claimant let alone in the exercise of any official function by him, but instead was entirely personal and private in nature. v) The Claimant goes on to plead that the disclosure or the threatened disclosure of the information was part of a wider campaign of harassment against the Claimant affected for the purpose of securing an improper benefits or payments to her.

[45]In a separate paragraph the Claimant pleads that the demands and threats were part of a course of conduct that amount to harassment of the Claimant contrary to the Protection of Harassment Act 1997 (“PHA”) ss.1 and 3.

THE SUBMISSIONS ON 23 JULY

[46]Mr Béar sought to contest the allegations of fact made by the Claimant and the submissions of law advanced for the Claimant only on the limited basis which I now summarise. Mr Béar set out the grounds on which the Defendant applies to discharge the injunction as follows: i) So far as concerns the key information, that is the “bare fact” of the Claimant’s sexual relationship with the Defendant: a) Having regard to the open manner in which both parties conducted their relationship (and also the open manner in which the Claimant conducted other extra-marital relationships), the Claimant cannot establish a sufficiently clear case for a reasonable expectation of privacy; and/or b) In his without notice application, the Claimant gave an unfairly partisan and exaggerated description of the manner in which the parties conducted their relationship (see paragraphs 17 to 18 of his first witness statement). He failed to comply with his duty of full and frank disclosure on a without notice application and/or does not come to court with clean hands; c) The Claimant also failed to make full and frank disclosure in his presentation of his other extra-marital relations. ii) The Claimant has failed to establish a sufficient case that the Defendant intends or has threatened to disclose any information in the form of details of the sexual relationship between them or of details of the Claimant’s relationship with his wife and children. The Defendant has never had or expressed any intention to make any such disclosure. iii) The form of relief obtained by the Claimant is extremely wide and prohibits any disclosure or publication, and indeed any use, by the Defendant of the information apparently to any person.

[47]So far as the claim in harassment is concerned the Defendant, notwithstanding her case on non-disclosure, is willing to offer an undertaking to the court as follows:

“Subject to further order of the court or the agreement of the parties, the Defendant will not contact the Claimant, whether in writing (including by email and SMS) or by telephone or otherwise. This undertaking will not apply if the Claimant or any person on his behalf contacts the Defendant. For the avoidance of doubt, this undertaking does not prevent any communication from the Defendant’s authorised legal representatives.”

[48]Thus Mr Béar submits that the practical dispute (save as to costs) concerns the two non-disclosure undertakings (as they are now) that she will not:

“(a) use publish or communicate or disclose to any other person (other than (i) by way of disclosure to legal advisers instructed in relation to these proceedings (the ‘Defendant’s legal advisers’) for the purpose of obtaining legal advice in relation to these proceedings or (ii) for the purpose of carrying this Order into effect) all or any of the information referred to in Confidential Schedule to this order (the ‘Information’); (b) publish any information which is liable to or might identify the Claimant as a party to the proceedings and/or as the subject of the Information or which otherwise contains material (including but not limited to the profession or age or nationality of the Claimant) which is liable to, or might lead to, the Claimant’s identification in any such respect, provided that nothing in this Order shall prevent the publication, disclosure or communication of any information which is contained in this Order other than in the Confidential Schedule or in the public judgment of the Court in this action.”

[49]Mr Tomlinson does not accept that the undertaking offered by the Defendant meets the proper claims of the Claimant at this stage for interim relief against harassment. He seeks an order in the form of the existing undertaking which reads that the Defendant will not: “(c) pursue a course of conduct which amounts to harassment of the Claimant contrary to the Protection from Harassment Act 1997 and in particular must not do any of the following or procure, incite, abet or encourage any other person to do any of the following: communicate with and/or contact and/or attempt to contact the Claimant directly or indirectly, including but not limited to speaking to him, approaching him, telephoning (with or without speaking), writing, sending messages electronically or through facsimile or through any other written forms of communication or in any other way whatsoever; save that nothing in this paragraph shall prevent the Defendant from:(i) communicating with the Defendant’s legal advisers.

(ii) sending written communications by means of the postal system to the Claimant’s legal advisers for the sole and limited purpose of providing notice to those solicitors of an applications to vary or discharge this injunction and the service of documents in relation to the same.

(iii) making any report to the police or prosecuting authorities in any jurisdiction. (d) approach within 200 metres of the Claimant’s residential or business addresses as set out in the Confidential Schedule.” (i) communicating with the Defendant’s legal advisers. (ii) sending written communications by means of the postal system to the Claimant’s legal advisers for the sole and limited purpose of providing notice to those solicitors of an applications to vary or discharge this injunction and the service of documents in relation to the same. (iii) making any report to the police or prosecuting authorities in any jurisdiction.

[50]It is to be noted that the undertaking offered by the Defendant does not include any undertaking not to visit the Claimant’s home.

[51]Mr Béar submits that there are two points of wider significance raised in the claim in this case which he characterises as follows:

“1. whether a non-disclosure order which does not merely protect extra-marital infidelity, but which is primarily aimed at assisting one spouse to continue deceiving the other, is at least presumptively inappropriate, and/or brings the administration of justice into disrepute. This is not a question of moralising about adultery, but whether the court should make orders whose primary purpose is to assist in a deception. There is an analogy with cases concerned with correcting false public image; and/or 2. whether there is a reasonable expectation of privacy where a defendant has entered into a serious relationship with a married claimant in the apparently mutual belief that the claimant is no longer committed to his spouse and the claimant then changes his mind.”

[52]The main part of Mr Béar’s argument focused on whether the fact of the relationship between the Claimant and the Defendant was information in respect of which the Claimant had a reasonable expectation of privacy and, the related question, whether the Claimant had given full and frank disclosure about the extent to which that relationship was known to other people. He dealt very briefly with the other three classes of information claimed by the Claimant to be private information which the Defendant was threatening to disclose.

[53]He submitted that there was no evidence put forward by the Claimant that the Defendant intended, or has threatened, to make any disclosure of intimate details internal to the relationship, that is to say any intimate matters. Accordingly no injunction should be granted. Likewise as to the third class of information, he submits that there is no evidence that the Defendant intends or has threatened to disclose those details of the relationship of the Claimant with his wife and children. As to the fourth class of information, Mr Béar submits that the Claimant has no reasonable expectation of privacy in relation to the fact or details of the other sexual relationships conducted by the Claimant. As to the bare fact of the Claimant’s other relationships, the Defendant relies on the submissions made in relation to whether the Claimant had any reasonable expectation of privacy in respect of the bare fact of the relationship with herself.

[54]Mr Tomlinson dealt with these three classes of information equally briefly. He submitted that the Defendant has made numerous threats to publish private information concerning the Claimant. These threats are set out with great clarity in numerous emails and are linked with demands for money. They are not confined to disclosure of specific categories of information. In particular, the Defendant has claimed to have been in contact with the media and refutes the suggestion that the article does not exist. She has, presumably, provided a journalist with information for an article or articles, the publication of which has however, not been approved. The proposed content of these threatened articles is not clear, but, bearing in mind the Defendant’s conduct, there is a plain risk that they will contain information within these classes. It is noteworthy that in her email of 30 May 2012 the Defendant said “everything you want to hide is coming out in public”. In these circumstances and bearing in mind the consistent threats that have been made, an injunction or undertakings are justified in this case.

CONCLUSIONS ON THREE OF THE FOUR CLASSES OF INFORMATION

[55]In relation to these three classes of information my conclusions are as follows. The Defendant has plainly made threats of disclosure both to the press, and to the Claimant’s business associates, in addition to disclosure to his wife. But in none of the threats of disclosure which the Defendant has made has she indicated that there was any limitation to the information she would disclose. She has at no time indicated that her threatened disclosure was confined to the bare fact either of the Claimant’s relationship with herself, or the bare fact of the Claimant’s alleged relations with other women.

[56]So far as other women are concerned, the threats plainly include disclosure of their alleged age and the interpretation which the Defendant has put upon those relationships which refer to women said to be from Slovakia.

[57]So far as concerns a threat to disclose details relating to the Claimant’s family, it appears to me that there is at least a strong case upon which the court could be asked to infer that what she intends to disclose to the press and to the Claimant’s business associates includes the effect she expects her disclosures to have upon the Claimant’s wife, namely the breakup of the marriage and the loss of or reduction in contact between the Claimant and his children. Accordingly, I do not accept Mr Béar’s submissions.

[58]In my judgment the Claimant is likely to establish that publication of details of his sexual relationship with the Defendant and details of his relationship with his wife and with his children, and details of other sexual relationships conducted by the Claimant should not be allowed. I will consider separately the bare fact of the Claimant’s relationship with other women.

[59]Mr Tomlinson submits that the undertaking offered by the Defendant is inadequate. First it is limited as it is to contact with the Claimant. Second, it is limited in time so as to cease if the Claimant or any person on his behalf contacts the Defendant.

[60]In my judgment the repeated threats by the Defendant to visit the Claimant’s home are, in the circumstances of this case, harassment within the meaning of PHA s.1. No reasonable explanation is put forward for those threats (PHA s.1(3)). The same applies to the threats to visit his office.

[61]Neither party mentioned the standard of proof that a claimant has to satisfy in order to obtain an injunction under the PHA. Nothing turns on it in this case, but this judgment should not be read as suggesting that, at least in so far as the conduct in question is not speech (e.g. visiting an address), HRA s.12(3) applies.

[62]In my judgment the threats by the Defendant have been sufficiently imprecise to justify, in addition to a specific injunction restraining communication with the Claimant and visiting his home or business address, a more general order restraining her from pursuing a course of conduct which amounts to harassment contrary to the Act.

THE BARE FACTS OF THE RELATIONSHIP BETWEEN THE CLAIMANT AND THE DEFENDANT

[63]In her first witness statement the Defendant set out in some forty paragraphs her account of what she describes as the openly conducted relationship between herself and the Claimant. In a second witness statement the Claimant has disputed some of what the Defendant has said but not all of it. In his skeleton argument Mr Béar summarised the material evidence in an Appendix consisting of 14 items. In two columns he briefly summarises the Defendant’s case and the Claimant’s case in respect of each item. Many of the occasions on which the Claimant and the Defendant met are not in dispute. They were at public events. These included a football match in the sponsors’ box early in their relationship, and other comparable events of a cultural, sporting or entertaining nature.

[64]One important event of a different character was a boat party which the Defendant gave in Amsterdam, to which she invited the Claimant, and which her daughter briefly attended. Another important event was a party given by the Claimant’s solicitors.

[65]The Defendant states that on many of these occasions they were openly kissing, holding hands or otherwise behaving in a manner which made it obvious that they were in a sexual relationship.

[66]The Defendant disputes that she was never introduced by the Claimant as his girlfriend. She has a brief statement from one of the Claimant’s associates to confirm that she was introduced in that way to him. In other instances where she says she was so introduced, the Claimant has not addressed the particular incident in his second witness statement. However, the second solicitor from that firm has made a statement in which she agrees that the Defendant attended the firm’s summer party, but disputes that the Claimant ever introduced the Defendant, or referred to the Defendant, as his girlfriend. She disputes what the Defendant alleges was said in a conversation between the two of them.

[67]Mr Béar submits that on his own evidence the Claimant appears to accept that, among other things, i) many people who were associated with the Claimant knew, if only through the Defendant, and these include people with whom he has no relationship at all, let alone one of trust or confidence; ii) Other people must have known or assumed the Claimant and Defendant were in a relationship, because of seeing the two of them repeatedly together at social functions including night clubs and the like.

[68]Further Mr Béar submits that the circle of knowledge was not limited to a handful of senior management within the Claimant’s business organisation, nor to a small number of his close friends. It extended to include people, or classes of people, who he lists in eleven categories. These include the Defendant’s daughter and her friends on the boat party, the partner in the Claimant’s solicitors’ firm (as to which there is a strong dispute of fact), and the large number of people in identified categories, and in unidentified categories, who saw or, it can be inferred, must have seen the Claimant and the Defendant at the various social functions.

[69]Mr Béar submits that given this conflict as to how private the relationship between the Claimant and the Defendant actually was, the court cannot conclude that in this respect the Claimant has satisfied the court that he is likely to establish at trial that the relationship between them had been kept so private that he retained a certain expectation of privacy in respect of the mere fact that it existed. Mr Béar submits that I should adopt the way that it was put by Eady J at first instance in Donald v Ntuli, and approved by the Court of Appeal, at

[2010] EWCA Civ 1276

;

[2011] 1 WLR 294

paras 36 to 38. In para 38 Maurice Kay LJ said: “Disclosure of the mere fact of this past relationship on which, on any view, was not entirely secret, does not carry with it particularly grave adverse consequences. In view of the limited nature of the permitted disclosure and the other matters properly considered by the judge, it cannot be said that, in relation to this issue he ‘erred in principle or reached a conclusion which was plainly wrong… whilst it is true there is no urgency in respect of this disclosure, nor is there a compelling reason to restrain it’”.

[70]As I understand it, Maurice Kay LJ described the permitted disclosure as being of a limited nature because what was permitted was confined to the bare fact of the relationship. The order of Eady J had prohibited disclosure of any intimate personal or sexually explicit details about the relationship (see para 8 of the judgment).

[71]There have been a number of other cases in which the court has refused to prohibit disclosure of the bare fact of a relationship. Mr Béar cited a number of them including Goodwin v. Newsgroup Newspapers Limited

[2011] EWHC 1437 (QB)

; [2011] EMLR 27.

[72]Mr Tomlinson made two points in response. First he submitted there is an important distinction between making information available to a circle of friends and colleagues, and publishing information widely in a newspaper or relaying it more widely. He referred to Lord Browne of Madingley v Associated Newspapers

[2008] QB 103

at para 61 and Douglas v. Hello!

[2006] QB 125

. The fact that the Claimants in Douglas were seen at their wedding by 350 guests did not mean that the photographs showing their appearance had lost their confidential character. As long ago as Attorney General v. Guardian Newspapers (No 2)

[1991] AC 109

at p.260 E-H Lord Goff explained the harm that might be caused by a repetition of facts already known to an earlier but different readership.

[73]Secondly Mr Tomlinson submitted, in the words of Eady J in CTB v. News Group

[2011] EWHC 1326 (QB)

at para 23:

“The modern law of privacy is not concerned solely with information or “secrets”: it is also concerned importantly with intrusion. That is one reason why it can be important to distinguish between the way the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information. It also largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant.”

[74]In other words, submits Mr Tomlinson, even if information concerning the issue was not secret, it would not follow that the Defendant would be entitled to publish it in an unrestricted way. Other cases of a similar nature upon which Mr Tomlinson might have relied are set out in Goodwin at para 85.

[75]Mr Tomlinson accepts that if and insofar as the Defendant wishes to disclose the bare fact of the relationship between herself and the Claimant, and the bare fact of other relationships that the Claimant has had with different women other than his wife, then such disclosures would not be a threat to the Claimant’s interests insofar as such people already knew the information. But he submits that there is an obvious and very substantial difference between a limited number of people knowing (or suspecting) a relationship in 2010, and disclosure to those who did not know which is made in 2012. Whatever the state of knowledge of the people mentioned in the Defendant’s witness statement, additional disclosure would be distressing and intrusive and should not be permitted by the court.

[76]Mr Tomlinson submitted that the Defendant’s evidence is incredible for two reasons. First, she has asserted in e-mails from the very beginning of the relationship in 2010 that she was being discreet about it. Second, the threats that she has been making with increasing force (and the terms of the confidentiality agreement which she has sought to enter into with the Claimant), make no sense except on the footing that the disclosures she was threatening to make (which on her case now is merely of the bare fact of the relationship) would be information not previously known to the people to whom she made the disclosure.

CONCLUSIONS ON THE BARE FACT OF THE RELATIONSHIPS

[77]I accept Mr Béar’s submission to this extent. On the conflicting evidence before me I cannot be satisfied that the Claimant is likely to establish that the number of people who knew about the relationship between himself and the Defendant was as limited as he claims in paragraph 17 and 18 of his first witness statement.

[78]On the other hand, neither do I think it likely that the Defendant will establish that the numbers of people who knew about their relationship was as large as she claims. The reason for this conclusion is obvious, as Mr Tomlinson submitted. Her case that the Claimant has no reasonable expectation of privacy is inconsistent with both themes in her own e-mails: that she has been discreet in the past and that she will make disclosures if her demands are not met, but that her disclosures will be confined to the bare fact of the relationship with herself and with the other women.

[79]In relation to the women with whom the Defendant alleges the Claimant has had other extra-marital affairs the position of the Claimant is stronger and that of the Defendant correspondingly weaker. The Claimant disputes that he was having affairs as the Defendant alleges. Even if I assume in favour of the Defendant that he was behaving with other women in such a way that other people attending the various events where he manifested such behaviour would have inferred that the relationship was sexual, I think it is likely that the Claimant will establish at trial that the numbers of people who knew or would have inferred the existence of such sexual relationships would be likely to be relatively small, and, so far as the evidence before me goes, smaller than the numbers who knew of the relationship between the Claimant and the Defendant.

MATERIAL NON DISCLOSURE

[80]There is no dispute that an applicant for any relief made without notice to the other party, in a particular an applicant for an injunction, is under a duty to the court to make a full and fair disclosure of all the material facts of the case. The material facts are those which it is material for the judge to know in dealing with the application as made. If material non-disclosure is established, the court will be astute to ensure that the applicant who obtains an injunction without notice, and without having made full disclosure, is deprived of any advantage he may have derived by that breach of duty where it is just to do so. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. These rules have a two fold purpose. They are to deprive the wrongdoer of any advantage improperly obtained. But the rule also serves as a deterrent to ensure that persons who make applications without notice realise that they have this duty of disclosure and of the consequences if they fail in that duty. However, the punishment must not be out of all proportion to the offence. The court must not cause a serious potential injustice by discharging, or not continuing, an injunction on account of non-disclosure. These principles are derived from Brink’s Mat Limited v. Elcombe [1988] 1 WLR at 1356F to 1357F, 1358C-D, and 1359B-E.

[81]In the other cases cited by Mr Béar where the court has regarded a non-disclosure as material, there has been no dispute between the parties as to the truth of the information not disclosed. There was no dispute about the fact not disclosed in Brink’s Mat (where the injunction was continued). The evidence which should have been, but was not, before the court at the without notice hearing in that application for the freezing injunction was information of the various instances of frankness which the Defendant had apparently shown in his contacts with loss adjusters, and which was consistent with his not having been aware of the allegedly tainted nature of the funds thought to be frozen. See page 1360 G.

[82]Mr Tomlinson submits that in the present case there is at best (from the Defendant’s point of view) a dispute as to whether there has been non-disclosure.

[83]I have already decided that I cannot be satisfied that the Claimant is likely to succeed at trial in establishing that those who knew about the relationship between himself and the Defendant were as limited as he claimed in paragraph 17 and 18 in his first witness statement. However, I have not found as a fact, and I could not find on conflicting witness statements, that what the Claimant disclosed to the court was materially incomplete. I cannot make any findings of fact on disputed issues in these proceedings where no oral evidence is given.

[84]Further Mr Tomlinson submits that if the court is satisfied on the basis of the current evidence that the undertaking relating to disclosure of information should not be discharged, then it is difficult to see how the alleged non-disclosure could be material.

[85]In my judgment the difference between the Claimant and the Defendant on the question of how many people knew of the relationship between them is not material in the particular circumstances of this case. Even if the evidence of the Defendant as to the numbers who know of the relationship had been evidence given on 29 June by the Claimant, it could have made no difference.

THE PRINCIPLES ENGAGED

[86]The principles engaged are the Art 8 rights of the Claimant and his family, and the Art 8 and Art 10 rights of the Defendant. So I turn to the submissions of Mr Béar that the court should not be willing to grant an injunction which is primarily aimed at assisting one spouse to continue deceiving the other.

[87]Whether an applicant will be assisted by an injunction to deceive a non-party, such as a wife, may well be a relevant consideration. There are two recent cases in which I have granted non-disclosure injunctions, but not prohibited disclosure to the applicant’s wife. One is SKA v CRH

[2012] EWHC 766 (QB)

(28 March 2012) and the other BUQ v HRE

[2012] EWHC 774 (QB)

(29 March 2012).

[88]Mr Tomlinson submits that there are cases where injunctions have been granted which may have the effect of assisting in a deception. In K v News Group Newspapers

[2011] 1WLR 1827

;

[2011] EWCA Civ 439

the wife was not deceived. She knew of the information in question and she supported the application for an injunction. The court focussed attention on the fact that there were children of the family. Ward LJ said this at para 17:

“…The position of the appellant's wife is equally clear: she opposes publicity. Then there are the children. The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment. In another context, in Beoku-Betts v Secretary of State for the Home Department[2008] UKHL 39; [2009] A.C. 115, Lady Hale commented at [4] on the risk of: "… missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed.”

[89]If the purpose of the injunction is to preserve the stability of the family, whether the Claimant is lying to his wife, who is in ignorance of his infidelity, or whether he is not lying, may be one material factor, but cannot be conclusive. Much may depend upon the extent and nature of deception which the injunction may assist the applicant in perpetrating.

[90]It appears from the evidence of the Claimant that he is saying that he has not been candid with his wife, and the explanations that he has given to her of the Defendant’s message is an example of that. The Claimant’s wife has not given evidence and I have no means of deciding whether she knows of her husband’s behaviour when he is away from home or not. Given the evidence of the Claimant himself as to the extent to which his marriage was in difficulties in 2010, his lifestyle generally, and the time he has spent away on business, including the nature of the business and the glamorous women who he has met in the course of that business (including the Defendant), I think it is unlikely that the wife is ignorant of the general nature of her husband’s infidelity. So this is not a case where I think it likely that the extent of the deception of the wife is very great.

[91]The gravity of a deception may also depend upon the harmful effect that it may have on the rights or interests of the person deceived.

[92]The significant feature of the present case is that the wish of the Defendant to use her freedom of expression, as she claims it to be, to inform the wife of at least the bare fact of the relationship between herself and the Claimant is in the context where (as I find the Claimant is likely to establish) she intends to humiliate the wife, thereby weakening the marriage, in order to put pressure on the Claimant to pay to her the money she is demanding. I find that that is what the Claimant is likely to establish, because that is my provisional interpretation of the Defendant’s own e-mails. It is a provisional view because she has not had the opportunity of giving oral evidence to explain those e-mails.

[93]The Defendant’s rights under Article 10(1) may, by virtue of Art 10(2), be subject to restrictions prescribed by law for the protection of the rights of others, including the family members, and not just the Claimant alone. The Defendant put forward no reason why, in the particular circumstances of the present case, her wish to communicate with the wife should prevail over the rights of the family of the Claimant. If the Claimant does establish his case on the facts, then what she is proposing is as plain a form of intrusion into family life as it is possible to imagine.

[94]It follows that, from the authorities and the law which I am required to apply, the case cannot be reduced to the question which Mr Béar wishes to raise (para 51 above) as an issue of principle. It is simply not correct to characterise the primary aim of the injunction sought as one of assisting one spouse to continue deceiving another. The primary aim of the injunction is to restrain on an interim basis (expected to be a few months) what the court finds is likely to be found to be an interference with the right to private and family life of the Claimant and his family.

[95]Nor can the case be reduced to the second issue which Mr Béar submits is an issue of principle. Where a Defendant has entered into a serious relationship with a married Claimant in the apparently mutual belief that the Claimant is no longer committed to his spouse and the Claimant then changes his mind, the question whether there is a reasonable expectation of privacy must be determined in the light of all the circumstances not simply in the light of that circumstance. As I have already indicated, in many cases the court has held that there is no reasonable expectation of privacy in respect of the bare fact of such a relationship having existed. But it does not follow that the court should not restrain the Defendant in such a case from embarking on a course of intruding into the private life of the family.

[96]The word blackmail has figured prominently in this case. It has figured repeatedly in the documents exchanged between the parties before the commencement of the action, as well as in the Skeleton argument for 29 June.

[97]Very much to my surprise, I find the word appearing in a document described as a Confidentiality Agreement drafted by a solicitor. This is surprising, because legal agreements commonly set out the consideration for large sums of money which are to be payable under the agreement. If that is done, it is unlikely to cross anyone’s mind that the agreement might be part of an attempt at blackmail. If the agreement includes an express provision that “there is no question of blackmail in this matter”, but gives no explanation for the sums of money to be payable, that might well suggest to the reader that it is blackmail, accompanied by an ineffective attempt to say that it is not. The draft agreement refers to “a salary of €5000 per month”, but says nothing about the work that the Defendant is to do to earn it. If this document ever comes before a court on any issue, I would expect the court to ask why it should not be found to be a sham document of a kind that no solicitor should be party to.

[98]Mr Béar submits that the Defendant has, or claims to have genuine grievances against the Claimant which warrant the demands for money that she has been making. These grievances are partly personal as I understand it, arising out of the break up of what she had expected and wished to be a long term relationship. And they are partly business arising out of a particular incident which she claimed that associates of the Claimant caused loss in her business. It is a striking feature of the draft Confidentiality Agreement that it makes no reference to these supposed claims, whether they be moral or legal.

[99]Blackmail is a crime. The Particulars of Claim do not contain an allegation that the Defendant has been engaged in blackmail. What is alleged is what is set out in para 44(i) above. The trial court will not be asked to make any finding which is not alleged in the Particulars of Claim.

[100]I make clear that in this interim application, where the evidence is in the form of witness statements only, I make no finding that the Defendant has been blackmailing or attempting to blackmail the Claimant. On the other hand, it is difficult not to be satisfied, and I am satisfied, that the Claimant is likely to succeed in establishing at trial that what the Defendant has been engaged in is what is alleged in the Particulars of Claim.

[101]The very large sums of money which the Claimant has already paid to the Defendant, which are not in dispute, and the lack of any precise formulation of the supposed claim in respect of the business loss, both support this view. The Defendant’s demands for money, insofar as they have been advanced in the emails, do not appear to be calculated on the basis of any argument in law or reflect any moral claim (such as love and affection), notwithstanding that in recent months at least she has been represented by a solicitor.

[102]Speech or expression which is made with the motive of coercing a person into providing financial support or benefits for a defendant who has no legitimate claim to them is likely to attract little protection from the court. In so far as it interferes with the rights of the claimant, such speech can lawfully be prohibited in accordance with Art 10(2).

[103]Of course, there are cases where a blackmailer may have a right, or even a duty, to disclose the information in question. An example is where the blackmailer has a right or duty to go the police, a regulatory authority, or some other person with a legal or moral interest in knowing the information in question. There may be cases where a person has a moral duty to inform one spouse (or partner to a personal relationship) of the conduct of another. That may perhaps be so where there is a serious risk to the health or other interests of the spouse, or of a child, about which the other spouse has lied. Such cases have been considered in the context of the law of common law qualified privilege as a defence to a defamation action, although it is difficult to imagine one where demands for money were involved.

[104]There are on analysis two forms of speech in question here. First, there is what might be called the story, that is the bare facts of the relationship between the parties and of the alleged relationships between the Claimant and the supposedly Slovak women. Second, there are the demands for money and the threats to tell the story. This is generally the analysis in blackmail cases. There may be cases where the appropriate injunction is to prohibit only the demands and threats, leaving the blackmailer free to tell the person to whom they owe a duty to make the disclosure. The demands and threats would be likely to be forms of harassment. There are other cases where this analysis is over complex, and it is appropriate to prohibit the blackmailer from telling the story.

[105]In this case I have no doubt that the Defendant wishes to continue to make the demands and threats. It is less clear whether she really wants to tell the story, or whether she is bluffing about that. On the evidence as it is now, it seems probable that she does have a conditional wish to tell the story, but that is not her preferred option. Her preferred option would be not to tell the story, provided that her demands are met. Of course, the right to free speech is a right to speak not just what you want, but when you want. However, if the Defendant really did want to tell the story, she has had over a year to do so since she first raised the possibility. All that an interim injunction will do is defer her right to do so for what is expected to be the few months until trial.

[106]Against the deferment of the Defendant’s right to say what she wants if an injunction is continued, there must be weighed the irretrievable interference with the Claimant’s Art 8 rights if no injunction is granted, and the Defendant does tell the story.

[107]After weighing the respective rights claimed by the parties, I am satisfied that the Claimant is likely to establish that in respect of the four classes of information which he seeks to protect he is likely to establish that publication ought not to be allowed. And he is also likely to establish that he is entitled to the injunction to restrain harassment that he seeks. The balance falls in favour of the temporary interference with the Defendant’s right of free speech.

CONCLUSION

[108]For these reasons the injunction will continue, but it will include the friends and family provision offered by Mr Tomlinson (para 40 above), or words to a similar effect to be agreed between the parties.