TRK & Anor v ICM

The first claimant, TRK, is a married man. I shall call his wife WRK. The second claimant, BVP, is TRK’s lover. She is not married. Their extra-marital relationship began in March 2016. By July 2016 it had lapsed. BVP then entered into a sexual relationship with the defendant, ICM. In September, the relationship between TRK and BVP started up again. BVP carried on seeing ICM. For two months she was seeing both men. As her Counsel puts it, she was two-timing ICM.

On Thursday 27 October 2016 BVP ended the relationship with ICM. On the same day he found out from another source that she had been seeing someone else. It is what ICM did next that led to the application that was made to me by Mr Vassall-Adams QC on Friday, 4 November 2016, on behalf of TRK and BVP. They sought injunctions restraining ICM from engaging in harassment of them, and from making disclosures which they alleged would represent a misuse of their private information. Their case is that he has hacked into BVP’s email; read private and confidential correspondence of her and TRK; acquired their private information; wrongfully used that information to harass both of them; and threatened wrongfully to disclose such information to WRK.

The application was made without notice to ICM, for fear that if notified in advance he might do the very things the claimants sought to restrain. In order to protect the information which is the subject of the claim the claimants sought orders for a hearing in private, anonymity, and restrictions on access to the court file. The application was supported by witness statements from each of the claimants, with substantial exhibits, and a Skeleton Argument of Counsel.

After reading the written material and hearing Counsel I reached these main conclusions: (1) the application was properly made without prior notice; (2) it was not necessary to hold the hearing in private; it was possible to conduct it publicly, providing all concerned were discreet in making public any identifying details, and appropriate orders were made for anonymity and limiting access to the court file ; that is how the matter proceeded; (3) on the available evidence, the likelihood that the claimants would obtain injunctions at trial in the terms they sought was sufficient to justify the grant of short-term injunctions, pending a hearing on notice to the defendant. The injunctions were granted for 7 days.

I gave short reasons for those conclusions at the end of the hearing, so that they could be recorded and passed to the defendant in the note which the claimants are required to serve. This judgment gives a more detailed explanation. I required the claimants to give an undertaking to serve this judgment on ICM as soon as possible in its approved form. That will have happened before it is made public.

I need not elaborate on the account of the parties’ relationships that I have given at the start of this judgment, except to say that WRK knows nothing of her husband’s infidelity. I should set out in outline what happened next, according to the claimants. I shall not put in all the details, as some will tend to identify at least some of the parties to some people. At this stage I have only the claimants’ side of the story. But much of it is backed by documents. And Mr Vassall-Adams has fairly highlighted the points he considers need to be brought to my attention as matters the defendant might rely on if he was present.

On 27 October, the claimants went out to see a film together at a cinema. It was later that evening that BVP ended her relationship with ICM. The following morning he told BVP that a work colleague of his had seen her going to the cinema with another man and accused her of seeing someone else, which she (falsely) denied. It appears from records exhibited by BVP that ICM found out about her two-timing some time on the Thursday evening, and acted on that knowledge before he called her. That is because at 23:18 on 27 November there was an unsuccessful attempt to access her Microsoft email account. This was done using the Chrome browser on an Android device from a specified IP address. ICM uses an Android device, according to the evidence. At 09:43 and 11:24 on 28 October there were successful sign ins to BVP’s account from the same IP address, also using an Android device and the Chrome browser. A further six successful sign ins took place from the same address using the same device and browser in the course of the afternoon and evening.

That evening, the Defendant began what turned into a lengthy correspondence with BVP over WhatsApp lasting several days. He began by informing her he had “started drinking already”. The messages were inconsistent. They alternately (a) wished the claimants well, naming TRK and expressing the hope that he would leave his wife; and (b) suggested that ICM was “tempted to” or would send an anonymous email to his wife, whom he also named. Such messages gave good grounds for suspicion, as BVP had never disclosed the fact of her relationship with TRK, let alone his name or that of his wife. BVP obtained the activity report I have described, and changed her password on 30 October.

On 30 October, BVP accused ICM of hacking her email account. He denied it. The accusation and denial were repeated several times. ICM gave a variety of false or at least implausible explanations of how he had obtained the information. Among his suggestions were guesswork, Google searches, and detective work using information on Facebook.

At 09:13 on 30 October TRK received an email from ICM to his work email address in which the Defendant threatened to tell WRK about his infidelity unless TRK did so himself. The following day ICM asked BVP to “give me one good reason why I shouldn’t tell [WRK]” and said that it was “time to find a postbox”. BVP read this as meaning that ICM intended to send copies of the emails by post to WRK. On 31 October it seems that one or more third parties made attempts to inform WRK, by other means. TRK’s evidence is that he does not believe this led to her becoming aware of the truth.

A warning letter was sent to ICM on 1 November by the Claimants’ solicitors. He did not reply to that letter or instruct solicitors to do so. But on 3 November he sent BVP a long email. In that email ICM admits to “looking at someones private correspondence”, apologises for his actions. He says he never “had proof of the affair” and claims that he “was never going to send anything to [WRK]”. On the face of that email ICM wishes to put the episode behind him, and move on. He says goodbye.

The basic principles that apply to applications of this kind are by now well-known. They are to be found in ss 6 and 12 of the Human Rights Act 1998 (“HRA”), Articles 6, 8 and 10 of the Convention, ss 1, 3 and 7 of the Protection from Harassment Act 1997 (“PHA”) and a number of well-known authorities, chief among them being Cream Holdings v Bannerjee [2005] 1 AC 253, in Re S (A Child) [2005] 1 AC 593, McKennitt v Ash [2008] QB 73 (CA) and ASG v GSA[2009] EWCA Civ 1574.

The question of whether and if so when it is legitimate to disclose, or to threaten to disclose, private information that reveals the adulterous behaviour of a claimant has been considered on several occasions. Leading authorities include but are not limited to CC v AB [2006] EWHC 3083 (QB) [2007] EMLR 11, Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) [2008] EMLR 20, and John Terry’s case [2010] EWHC 119 (QB) [2010] EMLR 16.

There were three main issues for me to resolve: (1) was there a justification for hearing the application without notice to ICM? That should only be done if there are compelling reasons: S 12(2) of the HRA. I accepted Mr Vassall-Adams’ argument that ICM’s conduct, as disclosed in the WhatsApp conversation, was mercurial and unreliable. He had indicated before, on more than one occasion, that he would take no action only to make a threat that he would. (2) Was there a real risk that, unless restrained, ICM would continue to write to one or both of the claimants, or to communicate with them in some other way about the matter, or disclose information to WRK? The issue is closely connected with the first issue. My answer was, for the same or similar reasons to those just given, that there was a real risk. (3) Is it likely that a court would find at a trial that the claimants are entitled to restrain the behaviour they fear? Put another way: is the threshold test laid down by s 12(3) of the HRA satisfied?

This is not always an easy question to answer, as so much is often uncertain at such an early stage of the case. One of the lessons taught by In re S and by experience is that these cases cannot be decided by reference to broad generalities. Everything must depend on an intense scrutiny of the actual rights that are in play. Doing my best to predict how the evidence would fall out at a trial I found that the prospect of a permanent injunction after a trial was sufficiently likely to justify the short term relief I granted.

In so doing I followed the approach of the Court of Appeal on the interim appeal in ASG where Waller LJ said this:

“4 As regards the chances of success at the trial, I accept that section 12(3) of the Human Rights Act does require the court to look ahead and only grant an injunction at an interlocutory stage if the claimant is likely to succeed at trial. But I would also say that there will be cases where it may be necessary to grant an injunction ex parte to hold the ring until a proper inter partes hearing can be held and in which it can be finally explored as to whether the claimant will succeed at trial. In such cases, of course, the claimant must show even at the ex parte stage a sufficient likelihood that he will succeed at the inter partes hearing, but a more flexible approach is appropriate. Lord Nicholls put the matter in this way in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at paragraph 22:

“Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”

5 The question I would therefore pose is: is there a sufficient degree of likelihood that the claimant will succeed at trial to justify an ex parte injunction for a short period pending an inter partes hearing? As Browne v Associated Newspapers [2007] EWHC 202 and indeed other cases show, the court must first consider whether this is a case in which Article 8 is engaged. It must then consider whether Article 10 is engaged. If both are engaged, the court must then make an assessment of whether there is a likelihood at trial that, having regard to the claimant's Article 8 rights, the publication sought by the defendant will be restrained.”

TRK maintains that it is his right to decide whether and if so when and how to disclose his infidelity to WRK. It is certainly true that Article 8 confers rights of autonomy on an individual; rights to decide who gets to know what about the person’s private life, when, and by what means. But these rights are not unqualified, and do not exist in a vacuum. It would be hard to see any justification for a disclosure to the public. It may be less obvious that a more limited disclosure would be wrongful. The wife has her own rights under Articles 8 and 10, and so does ICM. The court is required to strike an appropriate balance between these competing rights.

A person who finds out that a married individual has been unfaithful to his or her spouse may, in some circumstances, have every right to inform the wronged spouse, who may have a right to know that information. If the person came by the information by observing behaviour in a public place, for instance, the court might be reluctant to intervene to prohibit disclosure. It might make a difference if the person acted out of disinterested concern for the well-being of the ignorant spouse. Other factors might weigh against the grant of an injunction.

But it is improbable that the court would consider it legitimate to disclose the details of the unfaithful spouse’s correspondence. Still less if access to that correspondence was only gained surreptitiously, without consent. Moreover, on the evidence before the court in this case at the present time, ICM only confirmed the fact of the relationship between BVP and TRK by gaining access to the email account of BVP. It is only via such unauthorised access that he came to know the identity of TRK, the identity of WRK, and the contact details of those two.

I do not say it is inevitable but at present it appears highly likely that the court would find that such access was unauthorised and wrongful. There is some suggestion in the correspondence that ICM had been provided with BVP’s password, but even if that was accepted it seems unlikely she would be found to have authorised his access to her private emails. The fact that BVP was “two-timing” ICM would not seem to provide a justification for “hacking”. ICM’s most recent email would suggest that he now acknowledges that his access was wrongful.

If that is right, then all the conduct complained of by these claimants flows from an unauthorised, wrongful act of “hacking” by ICM. To allow disclosure, or the continued use of that wrongfully acquired information to harass the claimants with threats of disclosure, would be to permit ICM to use such wrongdoing as a springboard. Other factors which I have taken into account are (a) the fact that on the face of it ICM’s purpose in making disclosure, or threatening disclosure, appear to be more vengeful than altruistic; he writes of the best interests of WRK, but it is the ventilation of his anger at what has been done to him that seems to be uppermost in his mind; (b) I know relatively little about WRK, or the relationship between TRK and WRK, and its future prospects.

If there is a further substantive hearing in this case, and if it involves further consideration of the propriety of disclosure to WRK, I would expect the claimants to place further and better evidence before the court on that issue.