BUQ v HRE

Three years ago, the claimant in this action for breach of confidence and misuse of private information obtained an interim injunction against the defendant, including an anonymity order, to prohibit the disclosure of information of a sexual nature. An injunction, with anonymity, has remained in place ever since. The claimant now applies for summary judgment. The core proposition advanced on his behalf is that findings made by the Employment Tribunal (ET), when dismissing with costs proceedings brought by the defendant against the claimant and others, make it clear beyond argument that the defendant has no answer to the claim.

The defendant has a cross-application, issued two weeks ago, which seeks orders for the committal to prison of the claimant for perjury or contempt of court, the discharge of the existing interim injunction, costs, and other procedural orders. His central claim is that the claimant has lied to the court in witness statements made in this action.

I have heard both applications in private, in order to maintain the anonymity of the parties and the secrecy of the information, until I could reach a conclusion. The defendant did not oppose the hearing taking place in private. This judgment is public, and for that reason needs to omit some identifying detail. It is possible however to give a reasonably full and clear account.

Having heard the parties I have concluded that the findings of the ET, which are binding in this action, leave the defendant with no realistic prospect of successfully defending the claim on the merits, and that the claimant is entitled to summary judgment. In the event, the defendant has not pursued his challenge to the injunction. Indeed, he did not oppose the grant of a permanent injunction in the same terms as the interim order. As explained below, I would in any event have granted such an injunction.

The defendant’s allegations of lying cannot be finally evaluated on the evidence presently available. They cannot be upheld, but nor can they be dismissed as manifestly unfounded. The defendant needs permission to proceed, and his application is procedurally defective. The procedural defects are not trivial. The requirements that have not been met represent important safeguards for a respondent charged with quasi-criminal conduct. But the defects are curable, and it would be quite wrong to dismiss the defendant’s application at this stage on procedural grounds. On the contrary, it is appropriate to grant the defendant permission to amend his application notice, and to give him an opportunity to put his evidence in proper form.

I am therefore adjourning that aspect of the defendant’s application, with liberty to restore as an application for permission to bring proceedings pursuant to CPR 32.14 for contempt of court by making a false statement without an honest belief in its truth. I am giving directions to ensure that the procedural requirements of Part 81 are complied with.

It may be that, if the defendant is given permission and then succeeds in proving his allegations of contempt of court the court would, in addition to penalising the claimant, modify the injunction I am granting, and make costs orders in this action to reflect the facts found proved. I am therefore giving the defendant liberty to apply to vary the injunction in the light of any findings made on any application for committal, and I adjourn both parties’ applications for costs, with liberty to restore.

However, my order does not contemplate that the injunction I have granted might be discharged if the defendant proves his case of dishonesty. Not only has the defendant not sought any order or provision to that effect, I also accept the submission for the claimant that in the unusual circumstances of this case the alleged lies, even if proved, could not provide the defendant with an answer to the claim. Lying to the court, if proved, is always a serious matter but, as the Supreme Court made clear in Summers v Fairclough Homes Ltd[2012] UKSC 26, [2012] 1 WLR 2004, such behaviour will only exceptionally lead to the forfeiture of a remedy which the law would otherwise provide. Normally, penalties for contempt, which may be significant, coupled with appropriate costs orders, will be proportionate and sufficient sanctions. Here, the lies – if there were any – were incidental rather than central to the case. It is possible to say at this point that there is no real prospect that a court would find that the lies alleged, even if all were proved, would justify the removal of anonymity, or the refusal of an injunction to protect information which is private and intimate sexual information, the disclosure of which would lack any public interest justification.

The result of the applications is therefore that the claimant has obtained final judgment and a permanent injunction in substantially the same terms as the orders that have been in place since 13 March 2012; I have given directions to enable the defendant to seek permission to proceed with an application to commit the claimant to prison for contempt of court by giving dishonest evidence in witness statements; if the claimant is found to be in contempt the defendant can apply for an appropriate variation of the injunction, but not its discharge; the question of costs will await the outcome of any contempt proceedings.

The claimant is the CEO of a substantial group of companies (the Group). The defendant was the managing director of one of the Group’s subsidiaries. In March 2012 the claimant applied for and was granted an injunction to restrain the defendant from disclosing (a) information of a sexual nature consisting of or concerning text messages, sent by the claimant to the defendant in 2009 and 2011, relating to sexual activity or planned sexual activity between the claimant and others, and (b) photographs sent by the claimant to the defendant by email in September 2011. The injunction also prohibited the defendant from disclosing information liable to lead to the identification of the claimant as the subject of the proceedings. Such orders remain in force today, subject to some variations, one of which I shall come to.

The claimant’s case when he first applied to Bean J at short notice on 13 March 2012 was, in summary, that in texts and emails to the defendant over the period 2009 to 2011 he had provided the defendant with information about sexual matters that was confidential, personal, and private, and photographs. It was said that there was no public interest in its disclosure. On the contrary, the public interest was said to favour an injunction as the defendant was blackmailing the claimant and the Group.

The blackmail alleged consisted of a demand for a huge and unjustified sum of money by way of “severance”, backed up by a threat to make public private the messages and photos that had passed between the claimant and defendant, as well as allegations that the claimant and his wife (whom I shall call CLJ) of had sexually abused the defendant. Particular reliance was placed on an email from the defendant to the claimant of 10 February 2012 entitled “Notification of intention to make public and to shareholders of [the Group]”. This contained a list of allegations of impropriety which the defendant proposed to publicise. The list included at 5 “Abuse of powers of a sexual nature by [the claimant].”

The claimant’s case was that, whilst it did not affect the merits of his claims, the defendant’s allegations were untrue. The claimant asserted that the reason for the blackmail threats was that the defendant had been found out in serious corporate dishonesty and was seeking to avoid the consequences.

The defendant’s response, set out in correspondence from his solicitors, was that he had good claims for breach of contract, constructive unfair dismissal and sexual harassment, which he had been discussing with the “owner” - that is, the principal shareholder - of the Group. The defendant denied doing anything tantamount to blackmail. Through his solicitors he said that he regretted suggesting that he would make his allegations to the public generally, which had been a mistake. He was entitled to make his allegations to the Group and its shareholders, he maintained, as they were true. The solicitors said they had instructions to pursue proceedings in the Employment Tribunal (ET). They opposed any injunction that would restrict the defendant’s right to pursue such claims. The correspondence was put before the court, but the defendant was not represented at the hearing before Bean J, who granted the injunction.

On 16 March 2012 the matter came back before Tugendhat J for further argument about whether there should be an exception to allow the defendant to pursue the threatened ET claims. On 2 April 2012 Tugendhat J handed down his reserved judgment on that issue. He varied the injunction to allow pursuit of the ET proceedings, ruling that it was a matter of high public importance that people should have access to a tribunal such as the ET, unfettered by those against whom they might make allegations in such a tribunal; that there was no real risk that the defendant would abuse the ET’s process; and that the appropriate way to control any risk of unjustified disclosure in that context was for the ET to consider the exercise of its powers to impose reporting restrictions: [2012] EWHC 778 (QB) [70]-[74].

Apart from that variation, Tugendhat J continued the injunction order until trial or further order the principal injunctions were continued. The Particulars of Claim were served on the same day as the judgment and order of Tugendhat J.

On 16 April 2012 the defendant served his Defence in this action. His case was that the claimant is a man of a dominant and bullying nature, whose explicit messages to him were unwanted and offensive. He denied that the claimant had any reasonable expectation of privacy, or was owed any duty of confidence in respect of the information in the messages. The sending of the messages was alleged to amount to sexual harassment and a breach of a duty to maintain trust and confidence in the employment relationship. It was said that some of the content of the messages referred to criminal and/or unlawful acts, in respect of which there could be no legitimate expectation of privacy. The claimant’s right to a permanent injunction was disputed on the basis that, contrary to the claimant’s case, the content of the messages was true; and that the claimant had improperly obtained an injunction by untruthful assertions such that no injunction should be granted or continued. Particulars of the pleaded case were set out in a Confidential Schedule to the Defence. Details of the alleged untruths were contained in Part C of that Schedule. No Reply has been served.

On 3 May 2012 the defendant issued ET proceedings against the claimant and others. He advanced claims for unfair dismissal, automatically unfair dismissal, detriments imposed for public interest disclosure (whistleblowing), sexual harassment and sex discrimination, sexual orientation harassment, victimisation, unlawful deductions from pay and unpaid holiday pay. The respondents to the ET claim were the Group, a company within the Group, the claimant, and the majority shareholders. The claimant was named as a respondent to the claims for discrimination, harassment and victimisation. A further claim was brought later, on 13 July 2012, against the claimant and another Group company for victimisation and detriment for whistleblowing, but subsequently withdrawn.

The ET granted a an order under Rule 49 of the Employment Tribunal Rules of Procedure 2004 (the Rules) requiring the exclusion from any document entered in the public register of matter identifying (among others) the claimant, CLJ or the defendant. On 12 May 2012 the ET also granted a Temporary Restricted Reporting Order (TRRO) under Rule 50 of the Rules. This prohibited, among other things, the identification of the claimant, CLJ, and the defendant. Orders to that effect have remained in effect ever since.

As there was a substantial overlap between the issues in the ET proceedings and this action, the trial of this action was vacated by order of Tugendhat J dated 15 October 2012, and the action was stayed, with the parties having permission to re-fix after the final determination of the ET proceedings. Tugendhat J accepted the submission made on behalf of the claimant that “the ET, which will have to determine the financial allegations made against the defendant, will be better placed than this court would be to determine the truth or otherwise of the sexual allegations that the defendant makes”: [2012] EWHC 2827 (QB) [17].

The ET claims were tried over 19 days during March, April, May and June 2013. By a Judgment, duly anonymised, of August 2013 the ET unanimously dismissed all of the defendant’s claims. Findings of the ET on which the claimant particularly relies are that:-

The ET subsequently made an order for costs against the defendant, on the basis that his pursuit of the claim had been unreasonable. The defendant did not seek to appeal the ET’s decisions.

Despite its findings against the defendant, the ET refused an application on behalf of the claimant to make permanent the TRRO. However, it did continue that TRRO in respect of the claimant and CLJ pending an appeal to the Employment Appeal Tribunal (EAT) against its refusal to extend the order.

Whilst that appeal was pending, on 16 May 2014, the claimant issued his application for summary judgment, supported by a witness statement of Duncan Ledrum of his solicitors dated 15 May. The claimant’s application came before HHJ Moloney QC sitting as a High Court Judge on 17 July 2014. Judge Moloney adjourned the application generally with liberty to restore for hearing not less than 14 days after judgment in the EAT proceedings. No doubt the Judge took the view that if the EAT upheld the ET decision and anonymity was lost, that would have an impact on the outcome of the summary judgment application.

In March 2015, however, the claimant’s appeal was allowed by the Employment Appeal Tribunal (Slade J), on the basis that the ET had erred in law and in its assessment of the competing rights, which plainly favoured the protection of the Article 8 rights of the claimant and CLJ over any Article 10 rights that were engaged. The Judge concluded that the grant of a permanent RRO was the only option open to an ET properly directing itself. Accordingly, an order was made in relation to the claimant, CLJ, and the defendant, permanently preventing the following:-

“the publication in Great Britain of identifying matter in a written publication available to the public or the inclusion in a relevant programme for reception in Great Britain. ‘Identifying matter’ in relation to a person means ‘any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegations in the proceedings.”

The defendant’s identity was and remains protected, despite the findings of the ET, not for his own sake but for the sake of the claimant, CLJ, and their son. Identification of the defendant would be likely to lead to identification of the claimant, which would in turn lead to identification of CLJ.

It is relevant to note some of the points that featured in the reasoning that led Slade J to make a permanent RRO to protect the identities of the claimant and CLJ.

In the wake of the EAT’s decision, the claimant has brought his application for summary judgment back before the court. He has done so more swiftly that he would otherwise have done, for pragmatic reasons, because of the defendant’s application, also issued in the wake of the EAT decision.

The witness statement of Mr Lendrum in support of the claimant’s application for judgment and a final injunction sets out the history I have outlined above, and exhibits among other things the judgment of the ET. The statement explains that the application is made on the basis that

“[The defendant] in the light of the findings of the Employment Tribunal, now has no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at trial. Put simply, the defence he advanced in answer to [the claimant’s] claim for an injunction to prevent the threatened publication cannot be sustained in the face of the [ET’s] findings.”

The first sentence of this quotation reflects of course the requirements which must be satisfied in order for the court to grant summary judgment to a claimant pursuant to CPR 24.2. The principles to be applied are equally well-known. Key points are that a “real prospect” is one that is not fanciful. The court must not, however, conduct a mini-trial. The test is absence of reality not improbability.

The defendant’s application notice, dated 8 April but issued on 15 April 2015, seeks the following orders and directions:

“(A)

Claimant be convicted of perjury and sent to prison for lying and giving false statements to the High Court

(B)

Claimant to pay defendant’s cost as directed by the Hon. Mr Justice Tugendhat as defendant had already agreed not to disclose any information to the media except to the Employment Tribunal when the injunction was first applied.

(C)

Claimant’s injunction be dismissed as the claimant had lied that he head never been unfaithful to his wife but the claimant later admitted to having sex with [EXD] in his second statement given to the High Court.

(D)

The court to set a hearing date as soon as possible as the claimant had delayed the case for almost 3 years for fear of being send to prison if convicted for perjury for lying to the High Court.

(E)

The court to subpeona [CLJ] (claimant’s wife) to give evidence as she was party to the sex parties involving [EXD], defendant and the claimant. These sex parties had been denied by the claimant.”

In support of this application the defendant says the following, over a statement of truth, in the application notice.

“The claimant had lied in his original statement given to the High Court for obtaining the injunction. This is evident in the claimant’s subsequent statements which were made to cover lies in his original statement after further evidence was given by me and [EXD] to the High Court. The court can identify the claimant’s lies by examining the claimant’s statements given to the High Court. He had committed perjury by giving false statements to the High Court. I have enclosed a witness statement from [EXD] which proves clearly that the claimant lied when said he had only met [EXD] only once. The claimant had in fact had sex with [EXD] for over a period of time and even paid her £3,000 for breast enlargement. The payment came in form of a cheque together with a letter from the claimant. The letter from the claimant to [EXD] and her bank statement is presented to this court as evidences. The claimant believes because he is a multi-millionaire he can do whatever he likes including giving false statements to the High Court knowing that they are untrue. Finally I asked the court to examine closely the signed statements given by the claimant to the High Court. The claimant’s statements clearly show he had deliberately misled the court that he never had sex with [EXD] in his original statement but then changed it and admitted having sex with [EXD] in his second statement after evidence produce [sic] by me and [EXD]. I am no a lawyer but is this not perjury. [EXD] will give evidence at the hearing”

The defendant has also filed a bundle of documents, entitled “Defendant’s list of documents (Bundle)” which includes a witness statement of EXD; a letter from the claimant to EXD, and a bank statement of hers; “sample” texts passing between the claimant and EXD, CLJ and the defendant, and CLJ and EXD; emails from the claimant to the defendant; and extracts from the claimant’s witness statements in the action.

In the course of the hearing I have been able to ascertain with greater clarity from the defendant what it is that he seeks. He has made very clear that he does not now resist the grant of an injunction to restrain public disclosure of the information at issue. He claims, however, that he has never “threatened” to make public disclosure, other than briefly before the initial injunction application, and in the ET proceedings. His position is therefore that there was therefore never any good reason for an injunction. The defendant’s overriding aim, as explained by him at the hearing, is to hold the claimant to account, and to see him punished by the court, for statements made by the claimant to the court in his witness statements in this action which the defendant maintains are lies. In addition, the defendant complains that he has been financially ruined by the proceedings and he wishes to obtain costs orders against the claimant to compensate for that.

The defendant now alleges 7 instances of lying. All are denied by the claimant. The defendant’s application notice was issued only recently, and his Bundle failed to reach the claimant’s legal team. Thus, the claimant has not yet had a full opportunity to respond. It is nonetheless convenient to summarise what is currently alleged, together with such responses as Mr Nicklin QC has been able to provide on behalf of the claimant, as follows:

The defendant has made clear that, contrary to what might appear from his application notice, he is not inviting the court to make any findings against the claimant at this hearing. Rather, he wishes the court to give directions for a hearing to determine whether his allegations are correct and to punish the claimant accordingly. It is for that purpose that he seeks to subpoena CLJ.

As Mr Nicklin acknowledged in his Skeleton Argument, there is an obvious inter-relationship between the issues arising from the applications. Further, whilst he maintains on his client’s behalf that the allegations of lying are false, Mr Nicklin has not suggested that I am in any position to determine their merits at this stage. He accepts that I have to treat them as matters that might be proved. His case is, however, that the matters alleged do not provide any vestige of a defence on the merits, and that it is possible to see now that if a principled approach is taken the court could not conceivably refuse his client the injunction he seeks, even if the alleged lies were told. He thus submits that the requirements of CPR 24.2 are met.

It is therefore convenient to deal with the following issues in the following order, on the footing that all of the defendant’s factual allegations are arguable:

By “on the merits” I refer to the intrinsic merits of the claims for misuse of private information and breach of confidence, as opposed to any considerations of abuse of process or the like, which I shall address at the next stage.

I can take this quite shortly, in view of the defendant’s stance and what I consider to be the obvious merits of the case. I shall focus on the requirements of the cause of action for misuse of private information, which are well-established. The first is that the claimant enjoys a reasonable expectation of privacy in respect of the information in question.

Here, the information relates to sexual conduct, and messages about such conduct. In his judgment of March 2012 Tugendhat J ruled that “While there is no doubt that a person normally has a reasonable expectation of privacy in respect of sexual activity, that cannot be the case where the activity is abusive or amounts to sexual harassment”: [2012] EWHC 778 (QB) [61]. Mr Nicklin describes this as “prophetic”. His submission is that it is now conclusively established by the decision of the ET that the defendant’s case was false, and that there was no sexual harassment or abusive sexual conduct by the claimant towards the defendant. Therefore, the defendant can no longer dispute the existence of the first element of the cause of action on that basis, and he has no other answer.

In my judgment that is correct. The information concerns sexual activity in private between consenting adults, which is a prime candidate for the protection of the law. The authorities suggest that some information of that kind may be protected from disclosure to the general public, even if it is criminal: see Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB), [2008] EMLR 20. Here, however, the information does not relate to acts which are criminal or otherwise unlawful. To the extent that the information discloses infidelity, that is not sufficient to deprive the information of its private nature: CC v AB [2007] EMLR 11 [24]-[25].

The truth or falsity of what the claimant has said in his witness statements about the number and nature of his sexual encounters with EXD, or with other people apart from CLJ, is not in my judgment a significant consideration when assessing the merits on this issue. The defendant’s case is that the information he threatened to disclose was true. The claimant’s case is that some of it was false, but false information can be and often is the subject of a reasonable expectation of privacy, particular when mixed up with true information.In general, the truth or falsity of the underlying facts is irrelevant: McKennitt v Ash [2006] EWCA Civ 1714,[2008] QB 73 [86]. Hence the grant of the interim injunctions in this case.

My conclusion is that the claimant plainly had, and continues to enjoy, a reasonable expectation of privacy in respect of this information. That conclusion accords with that of Slade J in the EAT.

The second stage, in determining whether a cause of action for misuse of private information is made out, is to decide whether the claimant’s claims ought to yield to, or prevail over, some competing rights or freedoms. This is a balancing exercise in which the rights under Articles 8 and 10 of the Convention are to be treated as in themselves of equal weight. The decision involves an intense scrutiny of the specific rights in play in the individual case, with the outcome being determined by considerations of necessity and proportionality. Again, I agree with the conclusions of Slade J in the EAT on this issue.

The defendant’s status as a blackmailer, and the claimant’s status as a blackmail victim are both established as facts by the final judgment of a competent tribunal which is binding on both parties. The claimant’s rights are to be accorded significant weight, not merely because they relate to information of an intimate, private and personal nature but also because he is a blackmail victim. As I said in YXB v TNO [2015] EWHC 826 (QB) [17]: “Victims of blackmail or extortion deserve protection from the court; and the court must adapt its procedures to ensure that it does not provide encouragement or assistance to blackmailers.”

The defendant’s right to speak publicly of his part in, or of what he knows of, the claimant’s sexual adventures is one that deserves little weight in striking a fair balance. He is not asserting such a right. As a blackmailer, although he has Article 10 rights, they are limited. As Tugendhat J explained in AMM v HXW [2010] EWHC 2457 (QB):

“38.

The fact that a person is making unwarranted demands with threats to disclose information does not of itself mean that that person has no right to freedom of expression. As Lord Atkin pointed out in Thorne [v Motor Trade Association [1937] AC 797, 817] the blackmailer may even be under a duty to disclose the information. But if a person is making unwarranted demands with threats to publish, that is a factor in deciding whether that person has any Art 10 rights, and, if so, then the weight to be accorded to them in balancing them with the applicant's Art 8 rights.

39.

In my judgment, the need to have regard to the Art 8 rights of the Claimant, and to promote the public interest in preventing and punishing blackmail are both factors which weigh strongly in favour of the grant of an anonymity order. There is a strong case that Defendant has no right to publish the information which she seeks to publish about her relationship with her former husband. On this view her Art 10 rights are not strong. And as an alleged blackmailer, her Art 10 rights are much weaker. ….”

As for the rights of others to learn of the claimant’s sexual exploits, it may be that such rights could in a proper case be held to outweigh a claimant’s right to protect the privacy of their sexual life, even in a case of established blackmail. Such a case would however be highly unusual. In this case, as Ward LJ observed in K v News Group Newspapers Ltd [2011] 1 WLR 1827 [23]: “Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved.” Disclosure of the information in this case could not make any significant contribution to a debate on any matter of legitimate public concern.

There is an additional factor. As in K, so also here, there are third party rights involved. Third party rights can be decisive in a case which is otherwise evenly balanced. Here, they include those of EXD and those of CLJ and the couple’s son. I do not attribute great weight to the right of EXD to make public her own experiences. She is not asserting those rights, and they must in any event be of limited significance in the absence of any public interest justification for disclosure. The rights of CLJ to protect her own privacy carry greater weight but I agree with Slade J in concluding that the son’s right to a family life untrammelled by disclosure of this information carries the greatest weight. The balance would in any event have come down on the claimant’s side, but the son’s rights add considerably to the balance in his favour.

This issue requires attention to three questions. The first is whether the claimant has shown that a court at trial would inevitably find that there is sufficient evidence of a risk of unlawful publication to justify the grant of an injunction. In my judgment he has. The defendant’s claim that there neither is nor ever was any need for an injunction cannot be accepted, in the light of the ET’s findings of blackmail. Where a blackmailer responds to a claim for an injunction by claiming that he never intended to carry out his threat, the court will inevitably take a good deal of persuading that the threat was and is an entirely empty one. Here, there is manifestly sufficient evidence of a threat to justify the court in granting an injunction. The threat was explicit in the email of 12 February 2012; the defendant’s credibility is destroyed by the conclusions of the ET; the ET’s finding that the defendant pursued the ET proceedings for motives of revenge would itself be sufficient to justify concern that he would, if not enjoined, make private information public.

The second question is whether it is clear at this stage that, other things being equal, the court would exercise its discretion to grant the equitable remedy of an injunction even if, as may yet be the case, the claimant is shown to have lied to the court in the respects identified? A claimant must come to equity with clean hands, and a remedy may be withheld if he does not. Thirdly, it is necessary to consider whether at trial, if the defendant’s allegations were established, the claim might be struck out by the court as an abuse.

In my judgment there is no real prospect that the court would withhold a remedy on either of these grounds in this case. I shall deal first with the third question. The right approach to issues of this kind was comprehensively considered by the Supreme Court in Summers v Fairclough Homes Ltd (above). The Court held that there is an inherent jurisdiction as well as a power under CPR 3.4(2) to strike out a statement of case on the ground that it is an abuse of the process of the court, at any stage, even after trial; but that the test must be what is just and proportionate, and it would be a very rare case in which, at the end of a trial, it would be just or proportionate to strike out a case rather than to dismiss it in a judgment on the merits or, where both liability and quantum could be assessed fairly, to give judgment in the ordinary way.

The Court accepted, at [48], the submission on behalf of the claimant that “in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly”. At [49] it emphasised that:

“The draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small.”

The court gave careful consideration to the question of whether orders striking out a claim were necessary in order to provide a disincentive to false and fraudulent claims. It identified a number of other deterrents which could have such an effect and would generally be preferable. The Court concluded at [61] as follows:

“The test in every case must be what is just and proportionate. It seems to us that it will only be in the very exceptional case that it will be just and proportionate for the court to strike out an action after a trial. The more appropriate course in the civil proceedings will be that proposed in both Masood v Zahoor[2010] 1 WLR 746 and Ul-Haq v Shah[2010] 1 WLR 616. Judgment will be given on the claim if the claimant’s case is established on the facts. All proper inferences can be drawn against the claimant. The claimant may be held entitled to some costs but is likely to face a substantial order for indemnity costs in respect of time wasted by his fraudulent claims. The defendant may well be able to protect itself against costs by making a Calderbank offer. Moreover, it is open to the defendant (or its insurer) to seek to bring contempt proceedings against the claimant, which are likely to result in the imprisonment of the claimant if they are successful. It seems to us that the combination of these consequences is likely to be a very effective deterrent to claimants bringing dishonest or fraudulent claims, especially if (as should of course happen in appropriate cases) the risks are explained by the claimant’s solicitor. It further seems to us that it is in principle more appropriate to penalise such a claimant as a contemnor than to relieve the defendant of what the court has held to be a substantive liability.”

The Supreme Court’s decision on the facts of Summers indicates how “very exceptional” a case would need to be, to justify its dismissal as an abuse a claim on the grounds of fraud or other dishonesty. The claim was for injuries sustained in an accident at work, including an injury to the claimant’s heel. He served a Schedule of Loss claiming £800,000 on the basis that he was grossly disabled, dependent on crutches, unable to work, and likely to remain so. Surveillance on behalf of the defendant revealed that the claimant was leading a normal existence without any significant disability, including playing football, and was in fact working. His claim was ultimately held to be worth £90,000. The Supreme Court dismissed the defendant’s challenge to the refusal of the trial judge and the Court of Appeal to dismiss the claim as an abuse holding that despite the claimant’s serious abuse of process, it would not be just or proportionate and would therefore be wrong to strike out the claim, since on the judge’s findings of fact he had suffered significant injury as a result of the defendant’s breach of duty for which he was entitled to damages.

I accept that the court could not, applying these principles to the hypothetical situation in which the court has found the claimant in this case to have lied as alleged by the defendant, conclude that the claim should be struck out or a remedy withheld. That is for reasons that will be apparent from what I have already said. Not the least of those features is that to allow disclosure would be to grant a proven blackmailer permission to carry out his initial blackmail threat, and publish intimate personal information, in circumstances where no public interest would be served, other than punishment of the claimant.

As Mr Nicklin submits, this case is to be distinguished from YXB v TNO (above), where there had been non-disclosure of highly material facts on a without notice application, and the order was discharged and not continued on the return day. In YXB the claimant’s rights were given relatively little weight in the light of his inadequately explained failure to give direct evidence in support of his case; his main objective appeared to be to prevent the publication of intimate pictures, which was enjoined; the defendant was asserting a right to disclose; there was little detailed information that could be disclosed; and the claimant’s allegation of blackmail was an improbable one.

Returning to the doctrine of clean hands my conclusion is that, without wishing to trivialise what is alleged against the claimant, the allegations are of falsehoods about the detail of his sexual life. I accept Mr Nicklin’s submission that these are not matters that could be seen as justifying the court withholding an order that would otherwise be merited.

None has been suggested, and I can see none. There is every reason to conclude this action at this stage, when there is no possible answer to the claim on the merits and the defendant does not even assert a right to publicise the information. The grant of summary judgment in favour of the claimant will not preclude the defendant from pursuing if he wishes the application for committal which he has threatened, to which I now turn.

The defendant’s allegation is that the claimant has made witness statements, verified by statements of truth, which contain false and dishonest statements. This is not perjury, but it is or may be a contempt of court. CPR 32.14(1) provides that: “Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

The defendant seeks the claimant’s committal to prison. The procedure is provided for by CPR 81 and Section VI of the Part 81 Practice Direction. Section VI applies where, as here, the committal application relates only to a false statement of truth: r 81.17(2). By rule 81.18(1):-

“A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court … may be made only –

(a)

with the permission of the court dealing with the proceedings in which the false statement or disclosure statement was made; or

(b)

by the Attorney General.”

The claimant therefore needs permission, if he is to proceed on his own behalf. Mr Nicklin resisted any suggestion that I might deal with the claimant’s present application as if it were an application for permission, submitting that there are important procedural safeguards built into Part 81 which have not yet been complied with by the defendant. The procedure is as follows.

CPR 81.18(2) provides that where permission is required under paragraph 81.18(1)(a), rule 81.14 applies, with modifications. Rule 81.14 as so modified provides as follows:-

“(1)

The application for permission to make a committal application must be made by a [Part 23 application notice] which must include or be accompanied by –

(a)

a detailed statement of the applicant's grounds for bringing the committal application; and

(b)

an affidavit setting out the facts and exhibiting all documents relied upon.

(2)

The [application notice] and the documents referred to in paragraph (1) must be served personally on the respondent unless the court otherwise directs.

(3)

Within 14 days of service on the respondent of the [application notice], the respondent –

(a)

must file and serve an acknowledgment of service; and

(b)

may file and serve evidence.

(4)

The court will consider the application for permission at an oral hearing, unless it considers that such a hearing is not appropriate.

(5)

If the respondent intends to appear at the permission hearing referred to in paragraph (4), the respondent must give 7 days’ notice in writing of such intention to the court and any other party and at the same time provide a written summary of the submissions which the respondent proposes to make.

(6)

Where permission to proceed is given, the court may give such directions as it thinks fit, and may –

(a)

transfer the proceedings to another court; or

(b)

direct that the application be listed for hearing before a single judge or a Divisional Court.”

The Part 81 Practice Direction includes the following provisions:-

“5.2

Where the permission of the court is sought under rule 81.18(1)(a) or 81.18(3)(a) so that rule 81.14 is applied by rule 81.18(2) or 81.18(4), the affidavit evidence in support of the application must –”

(1)

identify the statement said to be false;

(2)

explain –

(a)

why it is false; and

(b)

why the maker knew the statement to be false at the time it was made; and

(3)

explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

5.3

The court may –

(1)

exercise any of its powers under the rules (including the power to give directions under rule 81.14(6));

(2)

initiate steps to consider if there is a contempt of court and, where there is, to punish it; or

(3)

as provided by rule 81.18(5), direct that the matter be referred to the Attorney General with a request to consider whether to bring proceedings for contempt of court.

Here, the defendant has issued a Part 23 application notice, but it does not include nor is it accompanied by an adequate statement of his grounds for bringing the committal application; his evidence is not in affidavit form; and the evidence does not comply with the requirements of CPR 81.14(1)(b) and paragraph 5.2 of the Practice Direction. These are not fatal defects by any means. They can be put right. The defendant acts in person and lacks means, and it is appropriate to permit him to amend his existing application notice so as to comply with the rules, rather than require the issue of a fresh notice. But the deficiencies of his evidence will need to be made good.

I therefore grant the defendant permission to amend his application notice so as to seek permission under CPR 81.18(1)(a) to bring an application to commit the claimant to prison for contempt of court. Any such amended application notice must comply with the procedural requirements I have set out above, and be accompanied by the affidavit evidence on which the defendant relies. I set a deadline for the filing and service of the amended application notice of 29 May 2015.

It may be that the reference to an acknowledgment of service in r 81.14(3)(a) is meant to be omitted when applying that rule to an application for permission under r 81.18(1)(a), but for the avoidance of doubt I require the defendant to acknowledge service, as well as to serve any evidence relied on. After that, the application for permission will be considered by the court at an oral hearing, unless the court considers that a hearing would be inappropriate. If the claimant intends to appear at the permission hearing (or to make submissions if there is no hearing) he must give 7 days’ notice in writing of such intention to the court and the defendant and at the same time provide a written summary of the submissions he proposes to make.

I have dealt with the matters raised by paragraphs (A), (C) and (D) of the defendant’s application notice. As to paragraph (B) (costs), there are no costs “as directed by the Hon Mr Justice Tugendhat”. What the defendant is really aiming at is a costs order that reflects his position on the necessity or otherwise of these proceedings and the claimant’s alleged lies. To ensure that full argument can be addressed to those issues I direct that the costs of the claimant’s application and of the action are reserved to be determined at or following the Committal Application, as to which the parties have general liberty to apply.

By paragraph (E) of the defendant’s application notice he applies for a “subpoena” compelling CLJ to give evidence. This is at best premature in my judgment. The defendant evidently hopes to obtain evidence from CLJ to support his case that her husband had sex with other people at sex parties in her presence. Procedurally, the defendant is not wrong to make this application: the court’s permission is required for the issue of a summons for a witness to attend court to give evidence at a hearing other than a trial: CPR 34.3(2)(c). The evidence would be given at the committal hearing, if permission was granted. The question of whether permission should be granted to compel CLJ to give evidence for the defendant at such a hearing is best considered in conjunction with the question of whether the defendant should have permission to bring committal proceedings at all.