Kerner v WX & Anor

On 22 January 2015 I granted the claimant’s urgent application for an injunction to restrain two men, whose identities were unknown, from harassing the claimant and her 9 year-old son. The acts of harassment of which she complained arose from the conviction and sentence of the claimant’s husband for sexual activity with a child by a person in a position of trust. He was a teacher, and the child concerned was a 16-year old student. On 14 January 2015 Mr Kerner received a suspended sentence of imprisonment. His case attracted considerable media attention at the time of conviction and, in particular, sentence. That attention extended to the claimant and the couple’s son.

The two men, a photographer and an associate, had been involved in watching the claimant’s home and taking photographs on 22 January, in the early morning and afterwards, in a way that I found was likely to be held at a trial to amount to harassment: [2015] EWHC 128 (QB). At that time the claimant’s husband was not living at the family home.

The injunction I granted was against those two men, designated as “’WX’ and ‘YZ’ (Persons Unknown responsible for pursuing and/or taking photographs of the Claimant and her son at their home on 22 January 2015)”.   The claimant and her son were described in the order as the “Protected Persons”. The order prohibited the defendants from harassing the Protected Persons, and paragraph 3 contained some specific prohibitions on:

“3.1

photographing or videoing any Protected Person or any vehicle or premises or house belonging to or occupied by any Protected Person;

3.2

Knowingly loitering within the Exclusion Zone;

3.3

Knowingly pursuing a Protected Person”

The Exclusion Zone was defined to mean a 100 metre radius from the family home, in Kent, the address of which is specified in the order. The claimant gave undertakings to the court to use reasonable endeavours to trace the defendants. She had photographed them, and had the registration number of the car driven by one of the defendants.

On 29 January 2015, the return date of the original injunction, the claimant applied for the injunction to be continued until trial or further order. Neither defendant appeared. A second witness statement of the claimant explained that in compliance with her undertakings she had

I was satisfied that the need for the injunction had not expired, and that it should be continued. I therefore made an order that it continue until trial or further order. But it was by no means a certainty that the claimant would be able to identify either of the defendants. I required the claimant to undertake that if, despite the reasonable endeavours which she had undertaken to use, she had been unable to trace the defendants within three months after the date of my Order she would apply to a Judge for directions as to the further conduct of this action. The purpose was to ensure that the court retained control over the action and that the interim order did not by default become permanent: [2015] EWHC 178 (QB).

On 27 April 2015, in compliance with her undertaking, the claimant issued the application for directions which is now before me. In support of the application the claimant has made a third witness statement, dated 28 April. The directions sought are:

“1.

An order that the DVLA release to the claimant’s solicitors the identity and contact details of the registered keeper of the Ford Galaxy registration number [*REDACTED*] within 28 days of the order;

2.

The Injunction dated 29January 2015 in this matter to continue until trial or further order.”

As the injunction of 29 January 2015 was expressed to continue until trial or further order it might be thought that paragraph 2 was unnecessary. However, it is right for the claimant to raise the issue, as her evidence shows that the facts have changed in a material respect, that might lead the court to reconsider. The claimant’s husband has returned to live with his wife and son. As a result, he may incidentally benefit from protection which the injunction is designed to give to them. The prohibition in paragraph 3.1 would serve to prevent filming or photography of the husband when in the home, or in premises or a vehicle which is also occupied by his wife or his son. Paragraph 3.2 would protect him incidentally as would paragraph 3.3, if he was with his wife or son when they were being pursued.

I have considered whether it would be right for those incidental protections to be available to the husband, who is the convicted individual, and has not complained of harassment by these defendants or, so far as the court is concerned, anyone else. Any order of this kind must strike a proper balance between the rights of individuals to be protected from harassment which interferes with their right to enjoy a private and family life, and the rights of others, including the news media, to receive and impart information on matters of legitimate public concern.

I conclude that, provided this injunction remains justified in order to protect the claimant and her son, the fact that the husband also incidentally benefits is not a reason to vary or discharge the order. The injunction does not prohibit photography or videoing of the husband, at any time when he is not at home or not in the company of his wife or son. That is not to say, of course, that it would be legitimate to harass the husband. But it may be legitimate to take pictures or video of him, and nobody is asking the court to restrict such activity.

I therefore turn to consider whether the continuation of the existing injunction in favour of the claimant and her son is justified by the evidence. The claimant maintains in her third statement that such protection remains necessary. She was acting head teacher of Wyborne Primary School. Her evidence is that after her husband returned to the family home she informed her employer, and took the necessary steps to ensure that she could continue in her employment, while living with her husband. The point, of course, is his status as a convicted sex offender and thus a person barred from working with children. On 24 February 2015 the claimant obtained an Ofsted waiver allowing her to work at the school in any capacity, whilst living with her husband. However, there was press “campaign” against her personally she says, which she describes as “relentless”. As a result of the pressure she is no longer working at the school.

Media interest in her life continues, she says. She refers to and exhibits a copy of an article published on 24 April 2015 in the News Shopper, online. This article reported suggestions that the claimant had been sacked from her position as acting headteacher of Wyborne Primary School after bringing her husband onto the premises. It referred to criticisms from parents. It featured two pictures of the claimant, one in which she was with her husband and the other a head and shoulders extract from that photograph. The claimant says that much of the article was false.

The claimant says that this continued media interest causes her to anticipate that without an injunction in place she and her son will again be harassed at their home by the defendants. She says that her son Jack has asked to move from his room at the front of the house to one at the back, because he is scared that photographers will come back and photograph him again.

Mr Lawson-Cruttenden has raised two further points in support of the continued need to protect the claimant and her son against the risk of harassment by the defendants. The first is that, as reported in the News Shopper article, the Acting Headteacher who has replaced the claimant for the time being, until a permanent replacement takes up the post in September, is the wife of the local MP. It is submitted that this makes it more likely that media interest in the case will continue. The second is that Mr Kerner is in the process of seeking to appeal against conviction. It is suggested that media interest is bound to revive at any time the appeal reaches a hearing, whether that be an oral application for permission, or a full appeal.

In my judgment there is enough evidence to justify the continuation of the order protecting the claimant and her son. Some of the evidence is lacking in detail. The evidence of the “relentless” press “campaign” against the claimant personally consists only of her assertion. No press coverage other than the 24 April online article is exhibited. No detail of the “campaign” is provided. This makes it hard to determine what exactly has taken place and hard to assess the weight that should be given to the claimant’s characterisation of it. As for the article of 24 April 2015, it is not an inflammatory one. It is, rightly, not relied on as itself amounting to any form of harassment.

The evidence taken as a whole does however lead me to conclude that the husband’s case and its consequences are likely to remain for some time a subject of some, albeit probably intermittent, media attention and that there are grounds for concern that this might in the absence of continued injunctive relief lead to harassment of the claimant and her son.

The impact on the son of the original harassing conduct is a factor that weighs particularly with me. The circumstances he has to cope with are difficult enough as it is, especially at his age, and in my judgment the evidence of risk needs only to meet a relatively low threshold in order to justify continued protection for him. The claimant herself is an adult, and a professional, and can reasonably be expected to be more robust. Nevertheless, the protection afforded by this injunction is not in any way unreasonable or oppressive.

I turn to the application for disclosure. When I first saw the papers for the application on 28 April I noticed that the application notice did not identify any person on whom it had been or should be served, and the evidence did not suggest it had been served. My view, that it should be served on the DVLA, was communicated to the claimant’s solicitors. I now have before me, in addition to the claimant’s third witness statement, a certificate of service dated 30 April 2015 and copies of related email exchanges. These show that the application notice and other documents were sent to the DVLA by email at 11:00 that day and that the DVLA confirmed at 11:29 that it “[did] not object to the request of a court order or a court order being granted”, and would not be attending the hearing.

A similar position is quite often adopted by third parties against whom orders for disclosure are sought, but that is by no means always the case. It is important that any person against whom a party seeks a court order requiring them, at the risk of contempt of court, to take or refrain from some step should be given due notice and an opportunity to be heard. Where, as here, the application is for information that identifies an unknown person it is by definition impossible to notify the third party concerned. In other cases, however, where the information sought is personal information about an individual the court will wish to be assured that the “target” individual has been given due notice, and an opportunity to make representations, or that there is good reason not to afford them those facilities.

The relevant facts, as set out in the claimant’s second and third witness statements, are that she made a written application to the DVLA for the disclosure of the identity of the registered keeper of the Ford Galaxy, using a form provided by the DVLA for that purpose, but the DVLA responded by letter stating that it was not satisfied that it was appropriate to make the disclosure. The present application notice was then issued and served on the DVLA, in response to which the DVLA gave the confirmation I have mentioned, that it would not oppose any order, and would not attend the hearing.

The fact that a third party does not oppose the making of an order for disclosure by it does not of course mean that the court will automatically make such an order. The source of the power to make the order must be identified and any requirements for the exercise of that power must be shown to be satisfied. In many cases, applicants for orders that third parties disclose the identity of alleged wrongdoers are able to invoke the jurisdiction recognised by the House of Lords in Norwich Pharmacal Co v Customs and ExciseComrs[1974] AC 133. Here, Mr Lawson-Cruttenden acknowledges that the Norwich Pharmacal jurisdictionwould appear inapplicable, as it is based upon the respondent to the application being someone who has facilitated or become mixed up, innocently or otherwise, in wrongdoing of which the applicant has been the victim. That cannot be said of the DVLA in this case.

Mr Lawson-Cruttenden has therefore advanced his client’s application in reliance on CPR 31.17. This provides, so far as relevant, as follows:

“Orders for disclosure against a person not a party”

31.17

(1)

This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2)

The application must be supported by evidence.

(3)

The court may make an order under this rule only where–

(a)

the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b)

disclosure is necessary in order to dispose fairly of the claim or to save costs.”

The relevant statutory provisions are those of s 34 of the Senior Courts Act 1981 which provides, so far as relevant:

“(2)

On the application, in accordance with rules of court, of a party to any proceedings, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim

(a)

to disclose whether those documents are in his possession, custody or power; and

(b)

to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order— …”

The application as its stands is for the provision of information rather than the disclosure and production of documents, but that can be catered for by suitably amended wording. The DVLA is clearly a “person who is not a party to the proceedings”. It is a certainty that the DVLA has in its possession documents which identify the registered keeper of the Ford Galaxy. I have to ask, though, whether such documents meet the three conditions imposed by s 34(2) and CPR 31.17(3), that is, that

The wording of s 34(2) and CPR 31.17(3)(a) is perhaps not plainly and obviously apt to confer a power to order disclosure for the purposes of identifying an unknown party. In my judgment, however, it would be inappropriate to construe either provision in a narrow and literal way, as confined (for example) to issues arising from statements of case between identified parties, and not as extending to the question of the identity of an unknown party. To take that approach would tend to obstruct or hinder the fair disposal of litigation. I must not forget that the rights, including the Article 8 rights, of those whose identities might be disclosed pursuant to such an order require consideration; the court must conduct a careful balancing exercise: see Flood v Times Newspapers Ltd [2009] EWHC 411 (QB), [2009] EMLR 18 [25], [29]. But the statute and the rule confer a discretionary power, which is also subject to the express threshold requirements of CPR 31.17(3)(b). Those factors mean there is ample scope for deciding, in an appropriate case, that disclosure would represent an unnecessary and disproportionate intrusion into personal privacy, or should not be ordered for some other reason. It is not necessary, in order to enable the court to reach such conclusions, to adopt a narrow reading of the statute or r 31.17(3)(a).

I am satisfied that the question of the identity of the unknown defendant who was the driver of the Ford Galaxy on the 22 January 2015 is aptly described as an “issue arising out of the claim” in this action. I would regard documents held by the DVLA which identify the registered keeper as “relevant to” that issue, as there is a good chance that they would identify or lead to the identification of the person who was the driver on the relevant occasion. Are the documents such as might “support the case” of the claimant, within the meaning of r. 31.17(3)(a)? I would interpret that phrase as encompassing documents that would advance the case of the claimant by identifying the defendant and answer the question yes.

I am also satisfied that it is “likely” that the documents would assist the claimant in that way. The word “likely” in this context means “may well” rather than “probably will”: Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210. In my judgment the requirement of necessity in CPR 31.17(b) is also met, as the claim cannot be disposed of fairly without identification of the defendants. Moreover, it is likely in my judgment that once one or both have been identified the action will be resolved more swiftly and economically than might otherwise be the case. I have no hesitation in exercising my discretion in favour of the order sought.

I therefore make an order pursuant to CPR 31.17 for the disclosure to the claimant’s solicitors by the DVLA of documents in its possession which are sufficient to provide the solicitors identity and such contact details as are known to the DVLA of the registered keeper of the Ford Galaxy, and the production of copies of such documents.

Finally, I note that the DVLA did not seek any order as to its costs of compliance with any order for disclosure made by the court. In another case, it may be that an undertaking or order to that effect would be appropriate, by analogy with the position where a Norwich Pharmacal order is made against an innocent third party.