WXY v Gewanter & Ors [2012] EWHC 501 (QB)

Case No HQ09X04089[2012] EWHC 501 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 13 th July 2011
Strand
London
WC2A 2LL
Before
THE HONOURABLE MRS JUSTICE SLADE
Between
WXYClaimantGewanter & OrsDefendant
B E T W E E N:
WXY
and
(1) MR HENRY GEWANTER
(2) POSITIVE PROFILE LTD
(3) MR MARK BURBY
Amended transcript from a recording by Ubiqus
Venue Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
MR AIDAN EARDLEY & MISS CLARE KISSIN instructed by Archerfield Partners LLP appeared on behalf of the CLAIMANT
MR MANUEL BARCA QC instructed by Memery Crystal for the FIRST and SECOND DEFENDANTS
MR WILLIAM MCCORMICK QC (on Monday 11 th July) and MR PATRICK GREEN (on Tuesday 12 th July) (instructed by the THIRD DEFENDANT under the Direct Access Scheme)
Judgment
[1]The trial of the claim by WXY against the first defendant, Mr Gewanter, who is the Managing Director of the second defendant, a public relations company, and the third defendant, Mr Burby, who engaged the first and second defendants on or before the 4th July 2009, was due to start two days ago, on the 11th July 2011. In these proceedings the claimant seeks an injunction to restrain the defendants from publishing certain information, or otherwise harassing the claimant. Damages are also sought. The claim is based on breach of confidence, privacy and harassment. There is also a counterclaim against the claimant. At the heart of the claims are allegations categorised as those of sexual allegations of conduct allegedly engaged in by the claimant.[2]Interlocutory injunctions are in place, restraining publication of such matters. There have been many interlocutory hearings in these proceedings. As in those hearings, at the outset of this hearing I made an order pursuant to CPR 39.2(3)(a), (c) and (g), that the hearing should be conducted in private, having regard to the subject matter of the claim. Making public what is said to be private and confidential information would defeat the object of the proceedings, the injunctive relief in place and that claimed.[3]On the Friday before the trial was due to start, Monday 11th July, the first and second defendants issued an application to adjourn the hearing to the first available date after the 11th October 2011. The basis of the application advanced by Mr Manuel Barca QC for the first and second defendants, who appeared for them solely for the purposes of making the application for an adjournment, was the illness of Mr Gewanter. In support of that application he produced a letter from a consultant psychiatrist, Dr Marcos Pierides, dated the 21st June 2011, which I am told was provided to the claimant’s advisors shortly after that date. That letter was placed before Mr Justice Tugendhat on the 28th June 2011 and formed the basis of an application by the Third Defendant to adjourn which was refused by him.[4]The claimant’s original position on the application to adjourn made by the first and second defendants, was to take a neutral stance. However after seeing a statement from Mr Gewanter, from which it was apparent that he had been working and was intending to work during the period of his treatment, the claimant was minded to oppose the application.[5]Since it was unclear from the doctor’s letter of the 21st June 2011 whether Mr Gewanter would be fit to conduct proceedings at some time in the future, questions were asked, at my prompting, of the doctor, to which he responded with commendable speed over the evening of the Monday 11th to Tuesday 12th July. He, in his answers, gave his opinion that Mr Gewanter, whilst he is not now fit to conduct proceedings, or to attend trial as a witness, would be fit to do so after treatment over the next three months for his psychiatric condition.[6]Mr Eardley, for the claimant, did not challenge the doctor’s opinion. In these circumstances he rightly acknowledged that he could not resist the application for the adjournment of the trial against the first and second defendants. In light of the doctor’s evidence, I adjourned the hearing of the claim against the first and second defendants. That should be listed for the first available date after the 11th October 2011. The parties will agree consequential orders.[7]The third defendant, Mr Burby, applied without application notice for an adjournment of the hearing of the claim against him. Mr William McCormick QC, on 11th July 2011, and Mr Patrick Green, on 12th July 2011, appeared for him for the purpose only of making the adjournment application and in Mr Green’s case, an application under CPR 33.2. The basis for the application made by the third defendant was the illness of Mr Gewanter and his unavailability to participate in a hearing of the claimant’s claims, were they to be heard now.[8]It was contended on behalf of the third defendant that for the trial to proceed now against the Third Defendant alone would be manifestly unsatisfactory. It was said that the third defendant would be prejudiced by being deprived of the first defendant’s evidence at trial. First, it is said that he, the first defendant, could assist the third defendant’s case as to his motivation for wishing to publish the allegedly confidential private information. It is said that this would be relevant to the claim in privacy in the balancing of Article 8 and Article 10 rights. Secondly, it was said that the claimant’s case is pleaded on the basis that the defendants have pursued a ‘strategy’. Although there is no express allegation of collusion, this was not expressly disavowed on behalf of the claimant. It was said that many of the allegations are against the defendants in the plural insofar as they are alleged to have acted together, formulating, or pursuing a strategy to disseminate confidential and private information and to harass the claimant. It was said that the case against all three defendants should be heard together. Third, it is said that there is a real risk of inconsistent findings, were two separate trials to take place.[9]Although Mr Gewanter has not prepared a witness statement, he answered, on 12th July 2011, a series of questions sent to him. This was done because it appeared that since Mr Gewanter had not served a witness statement, there was nothing placed before the court to show that he could or would give evidence which may assist in determining the issues in the case. All that there was was his defence.[10]The answers Mr Gewanter gave - and again it is appreciated that he replied with great alacrity to the questions which were sent to him on the evening of the first day of the trial, 11th July - included the following: ‘1) Yes, D1 can give evidence as to the motivation for his [meaning D3’s] actions. 3) Yes, D1 will be able to give evidence of his personal discussions with D3 such as would be likely to shed light on the latter's motivations, intentions and beliefs. 5) Yes, D1 can give evidence as to the nature and timing of all three Ds' dealings with the media.[11]Mr Barca QC on behalf of the first and second defendants supported the third defendant’s application to adjourn. He submitted that it is likely to be unrealistic to consider that determinations made in the proceedings against the third defendant would be unlikely to affect the first and second defendants. Further, unless the suggestion of collusion made in the particulars of claim, for example in paragraph 39, were not to be pursued, the case against all three defendants should be heard together.[12]Mr Barca QC contended that the assessment of damages, if it came to it, would be difficult if the case against all defendants were not heard together. There would be issues of causation to be determined: was distress caused by concern about disclosure of alleged perjury, or by disclosure of the alleged sexual relations, or both? Aggravated damages are claimed. Mr Barca QC contended that the amount of such damages would have to be fixed according to the culpability of the least guilty party. This would be difficult if two separate trials were conducted.[13]In opposing the application for an adjournment by the third defendant, Mr Eardley, for the claimant, contended that a fair trial of the claim against the third defendant could take place in the absence of Mr Gewanter, whether as a party, or as a witness. The third defendant can give evidence as to third defendant’s motivation. The third defendant has not given disclosure of any communications between him and Mr Gewanter. Mr Gewanter is claiming common interest privilege in such communications.[14]Mr Eardley submitted that the trial judge would not need to make findings of fact which would affect Mr Gewanter in a trial against the third defendant alone. The particulars of claim contain an allegation of a strategy between the three defendants, but not an allegation of collusion or a conspiracy. Miss Kissin, Mr Eardley’s junior, very helpfully provided a table of all three defendants’ principal admissions in relation to the matters pleaded in the particulars of claim. On the basis of these, Mr Eardley contended that there are not many factual issues in dispute between the parties.[15]As to the points made by Mr Barca QC, on the difficulties of granting relief in two separate trials, Mr Eardley said that the primary relief claimed was injunctive relief. If an injunction were granted against the third defendant after the first trial which proved to be too wide, having concluded the second trial, the injunction could be varied. The issue of damages could be adjourned until the determination of the second trial.[16]Mr Eardley pointed out that a previous application by the third defendant for an adjournment had been rejected by Mr Justice Tugendhat, on 28th June 2011. There had been an earlier hearing, in respect of which there was an appeal to the Court of Appeal last week and determined on 6th July, as to which I will turn later. The claimant is here, ready for a trial.[17]In the course of the application for an adjournment, it became clear that many of the background issues in this case will not be in dispute. Nor will it be disputed that the material regarding the sexual allegation was in fact published. The issues which are likely to be before the trial are: 1) In respect of some of the allegations, whether the third defendant was approached and responded to enquiries for information, or whether he volunteered such information and published it. 2) Who was responsible for making and publishing the publications complained of, including online? 3) What was the motive of each of the defendants for publishing the information? 4) Was the private information online already in the public domain? 5) In the privacy claim, what is the balance to be struck in the public interest in a) having the perjury allegation and/or the other allegations made known and the claimant’s right to privacy? 6) Whether and to what extent the third defendant’s contention that he was entitled to ‘tell his story’ amounts to a defence. 7) If there was a right to privacy and confidentiality in a) the fact that the claimant had dealings with the third defendant since April 2006 and b) personal information passed to the third defendant. 8) Regarding the harassment claim, were the views expressed by the third defendant to the media, in fact made for the reasons alleged and were they reasonable? 9) Whether in relation to the claim and/or the relief sought, was there a reason to investigate the third defendant’s belief in the sexual conduct allegations?[18]Many of the relevant allegations made by the claimant are admitted. It is not in issue that the sexual allegation was private and that it had been published by the third defendant. As to motive, the third defendant in these proceedings has contended that he wanted to draw attention to his previous business dealings with those connected with the claimant.[19]The third defendant can give evidence as to his motive, if relevant, for telling his story, and whether he did so in response to enquiries from the press, or otherwise, and who was responsible for publication of the private material. The third defendant has recently sought to obtain an adjournment of this trial, which was refused by Mr Justice Tugendhat. Further, in another hearing in this matter, the Court of Appeal, on the 6th July 2011, rejected a renewed oral application for permission to appeal orders made against him. In the course of their judgment, Lord Justice Rix made certain observations which I will turn to in considering an application in relation to evidence.[20]I also take into account the fact that the principal allegations are made by the claimant against the third defendant. These are not affected by the case against Mr Gewanter. A balance has to be struck between two imperfect solutions. The claim was issued on the 14th September 2009; it has been before the courts on many occasions. A date was set for this trial. It is in the interest of justice to have cases determined, but fairly determined. In my judgment a trial against the third defendant alone before that to take place against the first and second defendants, can be determined fairly.[21]So far as any issues which may arise affect Mr Gewanter, there can be findings in relation to the third defendant without affecting Mr Gewanter’s case in material respect. The allegations against the third defendant are unlikely to affect Mr Gewanter. Taking into account all the competing considerations, in my judgment the trial in relation to the third defendant should now proceed.[22]There is also an application before me by which the third defendant seeks, under CPR 33.2, to place before the court evidence of four witnesses whose statements or summaries are before the court. Now that the issues have been identified, it is easier to assess their relevance, or otherwise and I will outline in brief the subject matter of those statements.[23]The Witness Summary served in respect of Mr M goes to whether or not the sexual allegation, namely that the claimant had sexual relations with him, was true.[24]The statement of Mr C contains two serious allegations. First, that the claimant hired a hitman to murder Mr M and second, that on behalf of the claimant he paid money in return for tape recordings to be used in evidence in court proceedings. Neither of these allegations has been pleaded by the third defendant and the claimant has not dealt with them in her witness statement.[25]The statement, or summary of evidence of Mrs A deals with a number of matters including the nature of her relationship with the claimant; the claimant’s relationship with Mr M ; and the extent to which certain matters in respect of which privacy is asserted are, to her knowledge, in the public domain.[26]Finally there is the statement of Ms D in which in particular she deals with her observations and assumptions about the nature of the relationship between the claimant and Mr M. It is not proposed that Ms D be called to give evidence and to be cross-examined. Nor has any application been made for her evidence to be given over a video link.[27]Mr Patrick Green made some submissions yesterday as to the relevance and admissibility of evidence from these proposed witnesses. He suggested in the course of argument that, insofar as such evidence dealt with three specific matters, it should be admitted. There is much in the statements that does not fall into those categories. Those three categories are as follows: first, the relationship of Mr M to the claimant. Second, the modus operandi in relation to the claimant and her lawyers in the conduct of proceedings. This has a bearing on the third defendant’s case as to why he came to believe that Mr M’s account of his relations with the claimant were true. Third, evidence relating to the anxiety of the claimant about the fact that the allegation of perjury had been published and the related concern about publication of the allegation that she had an affair with Mr M.[28]Mr Eardley submitted the well-known principle that only relevant evidence should be adduced and that is evidence in relation to what is pleaded. In order to introduce the sort of evidence which is sought to be introduced by this application it is not sufficient that a certain allegation in the particulars of claim is denied or not admitted, or that the claimant has been put to proof. There would have had to have been positive assertions in the Defence.[29]In this regard, Mr Eardley draws attention to what was said by

Lord Justice Rix in the Court of Appeal last week:

‘3. In his Defence, Mr. Burby does not say that an allegation of a sexual relationship between the Claimant and [Mr. M] is true or that the Claimant has perjured herself in her Affidavit at the beginning of these proceedings when she said it was not true. What the Defence says is that ‘the Claimant’s denial of the sexual allegations may be perjury’
. When further information as to nature was sought, it was given in the 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 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.’
Sir David Keene said, in relation to the sexual allegation concerning Mr M: ‘….the third Defendant has known for two and half months that he can contact potential witnesses on the pleaded issues. Those issues, however, do not, as I see the matter, include whether the sexual allegation is true because it is not pleaded that it is true’.[30]In my judgment Mr M’s proposed evidence in these proceedings goes to whether or not sexual relations took place between him and the claimant. The Court of Appeal has authoritatively stated, less than a week ago, that that issue is not on the pleadings. So far as the third defendant is concerned, what is asserted is that the sexual allegation is possibly true. In those circumstances it is not material to the third defendant’s case that there be any investigation as to whether or not the sexual allegation is in fact true. Accordingly, Mr M’s evidence is not relevant to the third defendant’s case and is not to be admitted in his case. I emphasise his case, because the first and second defendants’ case is somewhat differently pleaded.[31]Mr C’s proposed evidence raises matters which are not live issues in these proceedings and contains allegations which are serious in the utmost and would call for evidence in reply, if those allegations were material to the pleaded case of the third defendant. They are not and accordingly his evidence will not be admitted.[32]Mrs A deals with an issue which is an issue in the proceedings concerning the third defendant, her item five in the summary: the extent to which “these matters”, , are to the knowledge of this witness in the public domain. Although “these matters” are unspecified, what is at issue is the privacy claimed in the sexual allegation, in context it is likely that “these matters” are to be construed as referring to those allegations. The public domain issue is an issue in the proceedings concerning the third defendant. That part of Mrs A’s proposed evidence is admissible. Also, Mrs A will be able to give evidence of the nature of her relationship with the claimant and how she came to know her. That permission must not be regarded as an open door to making wider allegations than how Mrs A came to know and be able to observe and comment on item five in her summary.[33]Ms D is deals with unpleaded issues. She also deals with her hypothesis as to whether there were sexual relations between the claimant and Mr M which, as I have explained earlier in this judgment, do not arise on the third defendant’s pleaded case, as explained by the Court of Appeal last week. Further, Ms D will not be presenting herself for cross-examination, nor has any application been made that she give her evidence by video link, so that she can be cross-examined on these matters.[34]Accordingly, save for and to the limited extent that I have explained in relation to Mrs A’s evidence, the application to admit certain evidence is refused. The hearing of the claim against the third defendant will proceed on that basis.[35]This is a redacted form of a judgment given in private on 13th July 2011. ----------------------------------------

Cited in 1 later judgment