GYH v Persons Unknown [2018] EWHC 121 (QB)

[2018] EWHC 121 (QB)Case No HQ17XOL1368
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/02/2018
Before
MR JUSTICE JULIAN KNOWLES
Between
GYHClaimant
Gervase De Wilde (instructed by Cohen Davis Solicitors) for Claimant for The Defendant(s) did not appear and were not representedHearing Hearing dates: 23 January 2018
Judgment Approved
[1]This is an application by the Claimant, GYH, for the final determination of her claim for an injunction and for damages under the Protection from Harassment Act 1997 (‘the PHA’). For reasons which will become obvious, the Claimant has the benefit of orders preventing publication of her identity, and other matters. The hearing was the return date of the application following a hearing before Warby J on 14 December 2017. On 19 December 2017 Judgment was handed down granting an interim injunction (GYH v Persons Unknown (Responsible for the Publication of Webpages) [2017] EWHC 3360 (QB)) (‘the Judgment’) and an order granted pursuant to the Judgment (‘the Order’). The Order provided by para 5 for a mechanism for deemed service of the claim form and that the Claimant should then apply at the return date ‘for default judgment and/or final determination of the claim’.[2]As I have said, the Claimant’s claim is under the PHA and was issued under Part 8. After obtaining the Judgment and the Order, it came to the attention of the Claimant’s legal team that by CPR r 8.1(5), where a claimant uses the Part 8 procedure s/he may not obtain default judgment under Part 12. However, Practice Direction 8A provides at para 8.1(1) for the Court on the hearing date may proceed to hear the case and dispose of the claim. I discuss that further below.[3]Accordingly, the Claimant now applies by application notice dated 22 January 2018 for:a. An order that her claim for an injunction and award of damages is allowed, by way of disposal of her claim. She submits that in light of the findings in the Judgment, that there is no real prospect of the Defendant(s) successfully defending her claim as it is set out in her claim form and the evidence filed in support of it when it was issued.b. The granting of her claim for damages on the same basis, with assessment to be stayed (she is still attempting to identify the Defendant(s), and asks that the assessment be stayed, with damages to be assessed if she is able to identify him/them).

The factual background

[4]I gratefully adopt the following summary of the factual background from the Judgment:
“1. The claimant applies without notice to the defendant for an interim non-disclosure order to restrain what she alleges is a campaign of harassment. The campaign consists mainly of the publication of various items or categories of personal information or purported information about the claimant. These include allegations that the claimant has HIV/AIDS, and other information or purported information about her sexual life, and her physical and mental health. It is the claimant's case that the allegation that she has HIV/AIDS is false, as is some of the other information about her. 2. Such information or purported information has been, and continues to be, published online at several locations. The claimant's case is that the publications have caused her considerable distress. They are said to amount to harassment by the misuse of private information. The claimant also maintains, as part of her claim, and as part of her argument in support of an injunction, that some of them are both defamatory and untrue. She relies on other more recent conduct as forming part of the same campaign. … 18. The best way to summarise the claim is to set out the relevant parts of the Details of Claim contained in the Claim Form, to which I have added paragraph numbers. The Claim Form describes the parties as follows: “[1] The Claimant is a transgender woman who works as an escort, and who provides sexual and companionship services to her clients under a work name (“the Services”). She is an active user of social media and maintains a Facebook profile, a YouTube Channel and a blog. ” [2] The Defendant is the unknown person responsible for conduct and a series of publications set out in more detail below, and thought to be resident in this jurisdiction. The Defendant is identified by description. 19. The Claim Form goes on to make the following factual allegations: “[3] Around 4 December 2015, the Claimant received a text message from an unknown person claiming to be a student who wished to meet her socially, but not to pay her for the Services. The Claimant declined to meet the unknown person and the text message conversation deteriorated into abuse, including the allegation that the Claimant spreads sexually transmitted diseases. The Claimant received anonymous telephone calls around this time which also directed abuse of a similar kind towards her. [4] Shortly following the exchange of text messages with the unknown person, the Claimant was targeted by a wide-ranging campaign of online harassment, in which information was posted on websites in relation to both her legal and work names. The Court will be asked to infer that the same unknown person was responsible for the text messages, the phone calls and the website postings. [5] The websites in question relate to the provision of sexual services for money, and to sex and pornography specifically relating to transgender women (“the Websites”). They target the Claimant, ensuring that they come to her attention, and to that of anyone searching for either her legal or work name on the internet. They do so by: using her work name in their URLs, headlines and other areas where such usage is likely to have an effect on the Websites' prominence in search results; using pictures of the Claimant (often altered in an offensive manner); and by publishing highly specific and identifying personal information about the Claimant's background, legal name, sexuality, and provision of the Services. [6] The publication of the Websites is persistently harassing of the Claimant, and they contain a number of very oppressive and unpleasant features beyond those which target her set out above, including: (1) the purported private information that the claimant is mentally ill, is anorexic, practices unsafe sex with her partner, and has STDs, including HIV; (2) the defamatory and seriously harmful allegation that, when offering the Services, the Claimant does so notwithstanding her infection with STDs and/or HIV, and the associated allegation that she practises unsafe sex when offering the Services; and (3) images of the Claimant, or supposed images and video of the Claimant, some of which have been altered in an offensive manner, containing extremely intimate and private information, the publication of which exacerbates the impact of the disclosures and allegations set out immediately above.” “[1] The Claimant is a transgender woman who works as an escort, and who provides sexual and companionship services to her clients under a work name (“the Services”). She is an active user of social media and maintains a Facebook profile, a YouTube Channel and a blog. ” [2] The Defendant is the unknown person responsible for conduct and a series of publications set out in more detail below, and thought to be resident in this jurisdiction. The Defendant is identified by description. “[3] Around 4 December 2015, the Claimant received a text message from an unknown person claiming to be a student who wished to meet her socially, but not to pay her for the Services. The Claimant declined to meet the unknown person and the text message conversation deteriorated into abuse, including the allegation that the Claimant spreads sexually transmitted diseases. The Claimant received anonymous telephone calls around this time which also directed abuse of a similar kind towards her. [4] Shortly following the exchange of text messages with the unknown person, the Claimant was targeted by a wide-ranging campaign of online harassment, in which information was posted on websites in relation to both her legal and work names. The Court will be asked to infer that the same unknown person was responsible for the text messages, the phone calls and the website postings. [5] The websites in question relate to the provision of sexual services for money, and to sex and pornography specifically relating to transgender women (“the Websites”). They target the Claimant, ensuring that they come to her attention, and to that of anyone searching for either her legal or work name on the internet. They do so by: using her work name in their URLs, headlines and other areas where such usage is likely to have an effect on the Websites' prominence in search results; using pictures of the Claimant (often altered in an offensive manner); and by publishing highly specific and identifying personal information about the Claimant's background, legal name, sexuality, and provision of the Services. [6] The publication of the Websites is persistently harassing of the Claimant, and they contain a number of very oppressive and unpleasant features beyond those which target her set out above, including: (1) the purported private information that the claimant is mentally ill, is anorexic, practices unsafe sex with her partner, and has STDs, including HIV; (2) the defamatory and seriously harmful allegation that, when offering the Services, the Claimant does so notwithstanding her infection with STDs and/or HIV, and the associated allegation that she practises unsafe sex when offering the Services; and (3) images of the Claimant, or supposed images and video of the Claimant, some of which have been altered in an offensive manner, containing extremely intimate and private information, the publication of which exacerbates the impact of the disclosures and allegations set out immediately above.”
[5]In relation to the identity of the Defendant(s), Warby J said at paras 10 - 12:
“10. … The claimant sues “Persons Unknown” … I shall refer to the defendant as “he”, because it seems most likely to be one male individual. It is open to a claimant who cannot identify those responsible for the conduct complained of to sue “Persons Unknown”
. The principles are identified in Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] 1 WLR 1633. The court must however keep a watchful eye on claims brought against persons unknown, to guard against any abuse of the facility to bring claims in this way. 11. … . Section 12(2) of the Human Rights Act 1998 prohibits the court from granting relief which might affect the exercise of the Convention right to freedom of expression unless it is satisfied “that there are compelling reasons why the respondent should not be notified or that the applicant has taken all practicable steps to notify the respondent.” There is no suggestion that there are any good reasons for not notifying the defendant. The issue, so far as it is concerned, is whether all practicable steps have been taken to notify him. 12. The evidence before the Court describes in some detail the efforts made on behalf of the claimant to identify the person responsible for the offending publications. These efforts have been extensive and, in my judgment, thorough; but although the claimant can identify those responsible for the platforms on which the statements have been made, it has proved impossible to trace any individual who has posted those statements. The evidence was updated at the start of the hearing by means of a statement explaining the steps taken to prompt a police investigation, and the status of that investigation. I am satisfied that the claimant has taken all the steps that could be taken to identify a defendant who might be served with this claim, but without success.”

Steps taken following the Judgment and the Order

[6]The Claimant undertook by Schedule 2(3) of the Order to continue to use her best endeavours to trace and serve the Defendant(s). The Third Witness Statement from Yair Cohen, the Claimant’s solicitor, explains that these efforts have continued, principally through the complaints the Claimant has made to the police. The police are continuing to investigate.[7]The Claimant was granted permission to serve the Order on two non-parties, namely two websites which have published offending material, however nothing has been received by way of response. The Claimant’s solicitor has also taken steps to attempt to persuade other websites hosting the harassing content about the Claimant to remove the information about her, but without success. The Claimant has also referred the Judgment to Google Inc in an effort to persuade the company, which is located in California, to co-operate in relation to the removal of offending search results. However, again, this has yet to yield any results. Legal principles Disposal of a claim under Part 8

Legal principles

[8]I am satisfied that I have the jurisdiction to determine this application. CPR r 8.1(5) provides that:
“(5) Where the claimant uses the Part 8 procedure he may not obtain default judgment under Part 12.”
[9]However, Practice Direction 8A provides at para 8 that “8.1 The court may on the hearing date— (1) proceed to hear the case and dispose of the claim;”

Final injunctive relief against Persons Unknown

[10]I am also satisfied that there is power to grant final injunctive relief against unknown defendants. In Brett Wilson LLP v Person(s) Unknown [2016] 4 WLR 69, Warby J referred at para 10 to the court’s jurisdiction to grant final injunctive relief against persons unknown. He referred to the fact that McGowan J did so in Novartis Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty [2014] EWHC 3429 (QB), where she held, at para 20, that she had the power to grant a final order under s 37(1) Senior Courts Act 1981, and concluded that on the written evidence put before her the test for summary judgment in CPR r 24.2 was satisfied.[11]Mr de Wilde for the Claimant pointed out that whereas at the interim stage the Claimant was required to get over the threshold in s 12(3) of the Human Rights Act 1998, as explained by the Court of Appeal in Cream Holdings v Banerjee [2005] 1 AC 253 at para 22, namely, by showing that she would probably (‘more likely than not’) succeed at trial, by contrast, CPR r 24.2 provides that “24.2 The court may give summary judgment …if (a) it considers that– (i) …; or (ii) that the defendant has no real prospect of successfully defending the claim or issue; and (iii) there is no other compelling reason why the case or issue should be disposed of at a trial.”[12]He also referred me to the commentary in the White Book 2017 at 24.2.3 (p743), which explains the test as follows:
“In order to defeat the application for summary judgment it is sufficient for the respondent to show some ‘prospect’, ie some chance of success. That prospect must be ‘real’, ie the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word ‘real’ means that the respondent has to have a case which is better than merely arguable (International Finance Corp v Utexafrica Sprl [2001] CLC 1361 and ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472).”
[13]He cited what the editors of Tugendhat & Christie, The Law of Privacy and the Media (3rd Edition), said at para 15.118 in relation to the grant of final injunctive relief against unknown persons:
“… the absence of a named defendant should never be permitted by the court to operate as a bar to the obtaining of injunctive relief in a privacy case, and thereby prevent the effective protection of a claimant’s Article 8 ECHR rights, where the grant of such relief is otherwise appropriate. Furthermore, if the concerns expressed by the Court of Appeal in Hutcheson v Popdog Ltd about the correctness of Jockey Club v Buffham turn out to be well founded, it may come to be regarded as appropriate to grant final injunctive relief in privacy cases in ‘persons unknown’ form.”

Discussion

[14]I am satisfied that it is appropriate to grant the injunctive relief which the Claimant seeks. For the reasons I have given I have the power to do so under Practice Direction 8A and the fact that no defendant(s) have been identified is not a bar to the grant of relief.[15]As to the merits, Warby J determined in the Judgment at para 31 that he was satisfied that a trial court would find that the Claimant’s claim under the PHA was made out. He went on to explain at para 5 that although the Claimant had engaged with a poster on a website who had ‘rated’ her services, and so to that extent could be taken to have approved of and consented to the publishing of that information, nonetheless, she has suffered ‘a sweeping attack on the values of autonomy and dignity which are at the heart of the right to privacy.’ As I observed at the hearing, the information which the Claimant engaged with was of a wholly different character to that of which complaint is made. This was an argument in respect of any case advanced by the defendant(s) which the Judge considered would prevail at trial.[16]At the interim stage the Claimant was only required to show that she was more likely than not to succeed at trial. At this stage, no defendant has been identified or come forward, but in light of the nature of the Claimant’s case as set out in her claim form, and of the Court’s findings in the Judgment, I conclude that there is no real prospect of any defendant successfully defending the Claimant’s claim. As Warby J held in his judgment at para 31, there is ‘presently no good reason to suppose that any compelling or even persuasive evidential case will be advanced by way of defence’, and that remains the case.[17]I agree with Mr de Wilde’s submission that it is difficult to make out even a fanciful potential justification for the Defendant(s)’ conduct under the PHA or otherwise, and the Claimant’s claim gets over the higher threshold for summary judgment. There is no other compelling reason for the claim or issue to be disposed of at a trial or further hearing.[18]I am satisfied that the making of a final order will assist the Claimant in her continued efforts to protect her rights under Article 8 of the European Convention on Human Rights.[19]In the event that the Defendant(s) are identified, and they wish to contest the injunction, then their position is protected by the inclusion of provisions which will allow such an application to be made by way of variation or discharge of the injunction.[20]In relation to damages, I grant the claim as part of the disposal of this action, but stay the assessment pending the resolution (if any) of the Claimant’s efforts to identify the Defendant(s). Any assessment hearing must be on notice to the Defendants, and he/they will have the opportunity to submit why damages should not be awarded.