Higinbotham (formerly BWK) v Teekhungam & Anor

This is the Claimant’s appeal from a decision of Master Yoxall on 23 October 2017. The Master struck out the claim as an abuse of process. Permission to appeal was given by Choudhury J on 20 December 2017.

The Claim Form was issued on 14 December 2016 and on that same date the Claimant sought and was granted an anonymity order by Deputy Master Sullivan after a without notice application. The Claimant did not seek an order anonymising either Defendant. As can be seen from the first page of this judgment, I have discharged the anonymity order. My reasons for doing so are set out below ([67]-[73]).

The Claim Form was served with Particulars of Claim on 20 December 2016. The claim is for misuse of private information, breach of confidence and for alleged breaches of the Data Protection Act 1998 (“the English Proceedings”). Before turning to consider the claim in more detail, I need to set out the background and history that gave rise to the dispute between the parties.

The Claimant is a US citizen who resides and works in the USA. He married his wife in 1991. The First Defendant is a Thai national who lived and worked in Thailand until about May 2013. The First and Second Defendant are married and live in the Norfolk.

The Claimant and the First Defendant first met in 2001 in Bangkok. Shortly after that, they began a relationship. The details of the relationship I take from a witness statement filed by the First Defendant. The Claimant has served evidence in response, but he does not make any material challenge to her account.

The Claimant and the First Defendant travelled to Singapore in 2001. The Claimant told the First Defendant that he loved her and wanted to marry her. He gave the First Defendant an engagement ring and told her that he wanted them to have children, telling her that she was the perfect age to bear his children. The Claimant returned to the US, but the pair remained in contact. The Claimant would visit the First Defendant whenever he was travelling in South-East Asia. They met up, the First Defendant estimated, on average three to four times each year. The First Defendant became aware that the Claimant was already married in 2003. When they met in Japan in 2003, the First Defendant told the Claimant that he had to make a choice between his wife and her. The Claimant told the First Defendant that he could not bear to lose her. He returned to the US, but told the First Defendant that he wished to prove his commitment to her by marrying her in a Thai wedding ceremony. He was insistent that they should have children. Demonstrating perhaps some flexibility in his own moral code, the Claimant told the First Defendant that he was not prepared to conceive children outside marriage.

And so, on 24 January 2004, the Claimant and First Defendant got “married” at a ceremony in Thailand. I have put inverted commas around married not in any way to disparage it, but because it is common ground that the marriage was not a legal marriage. The Claimant and the First Defendant nevertheless clearly treated it as being a significant event in their relationship. Although there is a dispute about the number of guests in attendance, the ceremony was by no means private. Photographs taken at the event have been provided and they show several groups of people were in attendance to witness the wedding. One photograph shows the Claimant and the First Defendant standing in front of what appears to be an 8-foot square sign bearing a large inscription “Love Forever” over their two names. A woman is pictured to the couple’s right holding a microphone, which I infer allowed her to address the audience of guests. The need for a microphone perhaps indicates that this was not a small intimate event, but a rather larger affair.

Prior to the wedding, the Claimant had accompanied the First Defendant to her home town to meet her parents. The Claimant paid a dowry to the First Defendant’s father as the First Defendant says is traditional. The Claimant gave presents of gold, a diamond ring and a credit card that she was told that she could use (up to a limit of US$8,000 per month).

The First Defendant underwent IVF treatment which she described as “concerted, intensive, and at times painful and distressing”. It was ultimately successful. The First Defendant became pregnant and, on 5 November 2008, she gave birth to triplet sons. Following their birth, the Claimant sent a copy of his passport so that he could be included on the children’s birth certificates as their father. The triplets were named after the Claimant’s family and took the Claimant’s surname; one of the sons was given the same first name as the Claimant.

The birth of the triplets received media attention in Thailand where IVF treatment (and associated multiple births) was (at least in 2008) relatively uncommon. The First Defendant and her sons were featured in a television news feature broadcast on Channel 7 news in Thailand. Although a recording of the item is not available, photographs of the First Defendant apparently being interviewed in her hospital bed (with the triplets beside her) have been exhibited to the Second Defendant’s witness statement. He states that, in the broadcast, the Claimant, First Defendant and triplets were all named.

By January 2009, it appears that the First Defendant was contemplating what the future held for her children and her relationship with the Claimant. She was considering moving to Europe as she did not feel safe in Thailand and had sent an email to the Claimant on 3 January 2009 about her plans. I have not seen the full exchange (and the Claimant has apparently deleted all copies of his email correspondence with the First Defendant), but the Claimant replied to the First Defendant on 4 January 2009:

“Thank you for all your thoughts and thoughtful expressions. You are my first wife and the best wife by far that I could ever imagine.

I may need some time to develop concrete answers to all of your questions, but I don’t need any time to tell you that I know what I want to do and that from November 5 [the birth of the triplets] you and our sons come ahead of everything else. Please don’t be so concerned about money: it’s not that important and there’s always plenty of it.

I would like to hear more about what this opportunity in Europe is all about. I think it would be great if you could find a way to earn a living and make some kind of career. I worry about the risks and of course you’ve heard how badly some of these ‘opportunities’ often turn out. No matter what you do or what happens to you, my love, I’m always (ALWAYS) here for you.

I’ll write again tomorrow when I’ve had a bit more time to reflect on everything that you are saying. I am proud to be the father of our three sons and even prouder to be honoured by calling you my wife, and I’ll accept whatever are the consequences of those wonderful events in my life… I’m not shirking from this responsibility and challenge, and I know you aren’t, and that you’ll let me know what we need to do to make this work…”

Nevertheless, the relationship between the Claimant and the First Defendant broke down towards the end of 2009. The Claimant says that the cause was his discovery that the First and Second Defendants were having a relationship. There were disagreements between the couple as to the Claimant’s provision of support for the triplets.

In March 2010, the First Defendant commenced proceedings in Thailand seeking an order for child support (“the First Thai Proceedings”). One immediate consequence of the First Thai Proceedings was that they led the Claimant’s wife to discover the Claimant’s relationship with the First Defendant. She did so when she saw correspondence relating to the case that had been delivered to one of their homes. In his Particulars of Claim the Claimant states that, on 5 September 2009 he told his wife of “the fact of his relationship with the First Defendant and of his paternity of the boys”. He maintains that the Claimant and his wife “continued to maintain secrecy in relation to these matters in relation to his friends and business associates.”

At first instance in the First Thai Proceedings, the Court found for the First Defendant and made an order on 21 December 2010 requiring the Claimant to pay a monthly sum (“the Child Support Order”). The Claimant sought to appeal that decision.

Meanwhile, in January 2011, the Claimant’s wife brought proceedings in Thailand against the Claimant and the current Defendants (“the Second Thai Proceedings”). In what under English law might be regarded as a somewhat ambitious claim, she sought repayment of sums that had been paid by the Claimant to the First Defendant during their relationship. I have been provided with a translation of a document filed in the Second Thai Proceedings that sets out the detail of the Claimant’s wife’s claim (“the Thai Claim Form”). In it, the Claimant’s wife described herself as a “civic leader, being a member of [a] famous or prominent family and being a famous person” in their community, holding senior positions in a number of charitable organisations. Complaint was made that the First Defendant had married the Claimant at the ceremony on 24 January 2004 despite knowing of his marriage to the Claimant’s wife and that “in the presence of her relatives, friends and [others]… [the First Defendant] has overtly expressed… [her] adulterous relationship with the [Claimant].” The Claimant’s wife complained that the Claimant had given substantial sums from the marital estate to the First Defendant and she sought to reclaim these sums from the First Defendant.

The Thai Claim Form also included what appears to be a claim by the Claimant’s wife for damage to her reputation. The document (in translation) stated:

“The way the [First Defendant] had overtly expressed herself in public to show she has an affair with the [Claimant] in adulterous affairs caused damage to the [Claimant’s wife’s] fame, prestige and very much humiliation among [her] society because the [Claimant’s wife] had been elected to hold high positions in various organisations… After the members of these organisations [discovered] the adulterous affairs between [the Claimant and the First Defendant] that caused humiliation to [the Claimant’s wife] because the other members saw the [Claimant’s wife] defective in performance of the wife’s duty that the husband [had an affair] with another woman. From such humiliation, the [Claimant’s wife] had to resign from many charity organisations in order to prevent these organisations from [suffering] detriment from the story…”

For this “humiliation”, the Claimant’s wife sought damages from the First Defendant of 100 million baht (equivalent of around £2 million). The Claimant’s wife’s claim was dismissed. A translation of a judgment dated 17 November 2015 dismissing the claim has been provided. All the parties are named. There are two matters of significance from these proceedings:

I infer that the Claimant did not fully comply with the Child Support Order. This led to the First Defendant commencing proceedings in the US to register and enforce the Child Support Order. The “Petition to enrol foreign money judgment confirming father and children’s relationship…” was filed in a court in Illinois on 27 June 2011 (“the US Proceedings”). One of the issues raised by the Claimant in the US Proceedings was whether, under Illinois law, the biological father of children conceived by artificial insemination could be required to make maintenance payments in respect of those children ([19] below). The First Defendant has exhibited over 500 pages representing some of the documentation from the US proceedings, including substantial interim applications. The Claimant says that it represents “selected documents”, but he has not sought to introduce any others. Both parties are named in the Court documents which (as might be expected) recite, in great detail, the history of the Claimant and the First Defendant’s relationship. The evidence establishes that these documents are also open to public inspection.

Ultimately, the First Defendant was successful in the US Proceedings when, on 2 December 2016, the Appellate Court of Illinois dismissed an appeal from the first instance court’s decision to register and enforce the Child Support Order. In its public judgment (“the Appeal Judgment”) the Court identified the Claimant by his first name and the first initial of his surname and the First Defendant by her first name. A copy of the Appeal Judgment has been exhibited to the witness statement of the First Defendant, but it is available online to any user of the Internet. It is convenient to take the summary of the First Thai Proceedings and US Proceedings from the Appeal Judgment.

As noted above, the Claimant’s appeal was dismissed. Consequently, both the First Thai Proceedings and the US Proceedings are now at an end. Notwithstanding that courts in these two jurisdictions have held (at first instance and on appeal) that he is the biological father of the children, the Claimant states in his witness statement in these proceedings: “there is still insufficient information to determine whether I am [the father]…”. I cannot resolve whether this is intransigence or self-delusion, but it does not matter. For the purposes of these proceedings and between the Claimant and First Defendant, the issue of parentage has been authoritatively determined; the triplets are the Claimant’s sons. Even allowing for the souring of relations following the breakdown of a relationship, it is not easy to reconcile the Claimant’s determined resistance of the First Defendant’s claim (and his denial of paternity) with his professed pride in being the triplets’ father; his readiness to “accept whatever are the consequences”; or his assurances that he was “not shirking from this responsibility” and that he would “always be there” for the First Defendant (see email of 4 January 2009 – [11] above).

The US Proceedings have been reported or have attracted publicity in the US. On 8 December 2016, the Chicago Daily Law Bulletin published a front-page article reporting the Appeal Judgment with the headline: “Sperm donor or dad? Thai ruling stands”. The article is still available online. Consistent with the Appeal Judgment, the Claimant was identified only by his first name and the first initial of his surname. The article, which reported on the First Defendant’s success, at first-instance, included the following:

“Harlow – a US citizen who was married to an American woman – worked in Thailand as an economic analyst from 2001 to 2006. He and Wipaporn began a personal relationship in 2001, and the two participated in a traditional Thai wedding ceremony in 2004. The two never legally registered their marriage.

After encountering conception issues, Harlow and Wipaporn agreed to try conception through gamete intrafallopian transfer using his sperm. Harlow consented to this procedure and signed a consent form on the line marked ‘husband’.

The successful procedure led to the birth of three sons in November 2008. Harlow supported the mother and children financially until September 2009…”

The Appeal Judgment has also appeared in the Illinois Official Reports and been the subject of commentary in an article appearing on the website of a firm of attorneys.

During the currency of the US Proceedings, in February 2014, the First Defendant created a Facebook profile (“the Facebook Profile”). It is the First Defendant’s evidence that she had decided to set up a Facebook page for her sons to keep a record of their childhood, their family and details of their father. She said that she thought that a sort of electronic scrap-book would be a good way of ensuring that important information about their childhood would not be lost. The Claimant contends that the Facebook Profile was, in fact, designed by the First Defendant to appear as a profile of him and intended to embarrass him and to pressurise him in the US Proceedings. The posting of this Facebook Profile ultimately became the subject matter of these proceedings.

The contents of the Facebook Profile do lend support to the Claimant’s contentions. The profile is set up in the name that is shared by the Claimant and one of his sons. That fact is equally consistent with the First Defendant’s account. However, in a column on the left under the heading “About”, the details that are given all related to the Claimant (employment, education, place of birth and current residence). A brief timeline also appears on the profile. Included in that are entries: (1) “Got married” in 1991; (2) “In a complicated relationship” in April 1991; (3) “Had a child” in November 2008; and (4) erroneously, ascribing the birthdates of the three (named) triplets to 11 May 2008. This narrative timeline consists of events (or alleged events) from the life of the Claimant. In light of these facts, I cannot accept the First Defendant’s claim that the Facebook Profile was of (or for) one of the triplets. Objectively judged, it would have appeared to any reader to be a profile of the Claimant and, presumably, such a reader would readily have inferred it had been posted by him.

Appearing prominently on the Facebook Profile – posted twice in its own right and also appearing as the ‘profile picture’ – was a photograph of the Claimant and First Defendant sitting with the triplets on their lap. In itself, it is an unremarkable and typical family photograph. However, in the current proceedings, the Claimant contends that his relationship with the First Defendant was conducted: “on the express understanding that their relationship would at all times be kept secret from the Claimant’s family (in particular the Claimant’s wife), friends and business associates”. On that basis, he contends that the publication of the Facebook Profile was a breach of confidence or misuse of private information because it expressly or impliedly disclosed his private and/or confidential information. I will return to the claim in these proceedings in more detail below.

The Claimant contends that the Second Defendant participated in the creation of the Facebook Profile as part of a “common design” and that he is therefore jointly liable with the First Defendant for its publication. The evidence to support his participation is that the email account used for the Facebook Profile was created by someone who gave the Second Defendant’s date of birth. From that, apparently, the Claimant at trial would invite the inference that the Second Defendant participated in the publication of the Facebook Profile.

The Claimant became aware of the Facebook Profile only when it was brought to his attention, on or around 27 July 2014, by one of his attorneys in the US Proceedings. The Claimant is only aware of three other people having seen the Facebook Profile; all three were other attorneys instructed by him. There is no evidence of any wider publication or of the Claimant ever having been asked about the Facebook Profile by anyone else. The Claimant’s US attorneys were successful in getting Facebook to remove the Facebook Profile and it was taken down shortly after 28 July 2014.

The Claimant complained about the Facebook Profile in the US Proceedings and it became the subject of evidence (including a description of its contents) and various motions (most - if not all - of which are available for public inspection). There was a hearing on 19 February 2015 (apparently in open court), concerning subpoenas that had been issued by the Claimant and served on Yahoo to obtain information relating to the Facebook Profile. A transcript of the hearing has been provided. The Judge was clearly unimpressed by the use of subpoenas when she had no pending issue before her for determination and the subject of the subpoenas had nothing to do with enforcement of the Child Support Order.

As noted above, the Claimant complains that the publication of the Facebook Profile was a misuse of private information, breach of confidence and/or a breach of the Data Protection Act 1998. The letter before claim had been sent on 7 August 2015, over a year before the issue of proceedings. It was sent together with a draft Claim Form and Particulars of Claim. It sought damages and an injunction. The Claimant gave the Defendants a deadline of 4 September 2015 for response and, in default, threatened to issue proceedings without further notice.

A substantive response was sent by solicitors for the Defendants on 29 September 2015. It was a long letter, but I need only note the following:

The correspondence meandered – without any urgency - through 2016. On 8 March 2016, the Claimant’s solicitors stated:

“… it is abundantly clear that [the Defendants’] motivation for bringing the US case is purely financial and unrelated to the needs of the children. [The Claimant] is of the view that exactly the same motivation lay behind the fake Facebook page. This was clearly not set up for only ‘family members’ to view… It was self-evidently set up to somehow try and bolster [the Defendants’] position in the litigation that was then ongoing in Thailand and the USA…”

The Defendants’ solicitors responded on 11 March 2016. Nothing further was sent until, on 9 December 2016 (shortly after the Appeal Judgment), the Claimant’s solicitors sent a letter stating that they were “now instructed by [the Claimant] to issue the proceedings previously referred to in the pre-action correspondence”.

As noted above ([2]), the English Proceedings were finally commenced on 14 December 2016. The Particulars of Claim, verified by a statement of truth signed by the Claimant, included the following:

The Defendants did not file a defence. Instead, they issued an Application Notice on 17 March 2017 seeking (a) to strike out the claim under CPR Part 3.4 as an abuse of process; and/or (b) summary judgment against the Claimant on the breach of confidence and misuse of private information claims.

The Defendants filed evidence in support of their application.

In answer, the Claimant filed a 7-page witness statement dated 27 June 2017. He complained that the Defendants were using the US Proceedings “effectively to seek to increase (the term used is to ‘modify’) the level of maintenance payments for the children from that which has already ordered by the Thai Court”. He accepted that the US Court had criticised “the robust way in which my defense case has been run”. Given its importance, I should set out, in full, what the Claimant said in his evidence about the Facebook Profile:

I set out my conclusions on this evidence below ([64]), but I simply note here:

The Application came before Master Yoxall on 6 July 2017. In a careful judgment, the Master recounted some of the history set out above. He held:

The Claimant appeals against the decision in (ii). Following grant of permission to appeal, the Defendants filed a Respondents’ Notice seeking to uphold the striking out/dismissal of the Claimant’s claim on the further basis that the Master should have found that the Claimant’s claims for breach of confidence and misuse of private information had no real prospect of success.

As his findings are challenged in this appeal, I should set out the Master’s reasoning:

Seven grounds of appeal are advanced by the Claimant. In summary:

There is no real dispute between Miss Skinner and Ms Strong about the legal principles that apply.

Based on those authorities, Miss Skinner submitted that Master Yoxall was wrong to find that the Claimant had brought (and was pursuing) the claim for the collateral purpose of harassing the Defendants. There was no evidence that the Claimant was using the proceedings for any other purpose than vindicating his rights. The Master had found that his claim for misuse of private information had a real prospect of success. The evidence did not pass the high threshold for striking out the proceedings as an abuse of process.

For the Defendants, Ms Strong submitted:

Again, there is not much dispute as to the legal principles to be applied:

By ground 3, the Claimant contends that the Master was wrong to extend the Jameel abuse jurisdiction to Data Protection Act claims. No authority has been cited for that proposition and I am satisfied that it is not correct: see Vidal-Hall [134]-[136] (itself a data protection claim) and Sullivan -v- Bristol Films, supra.

Ms Strong relies largely on the same grounds she did to support the collateral purpose abuse argument. The Master was correct to strike out the claim as Jameel abusive. This is a case where it is obvious that the claim has very little prospect of success. The Claimant’s claim discloses no real and substantial tort and, even if a technical claim could be demonstrated, the scale of the costs would be out of all proportion to the likely award of damages. There is, Ms Strong submits, a further unusual element in this claim. Given the Claimant’s choice not to anonymise the Defendants in these proceedings, any tangible or legitimate benefit that might have been obtained will be likely to be destroyed by the proceedings themselves: there is a very clear risk that the Claimant will secure greater publicity for the matters he is trying to protect as ‘private’ than the actions of the Defendants about which he complains.

In answer, Miss Skinner submits:

In Hunter -v- Chief Constable of the West Midlands Police [1982] AC 529, 536, Lord Diplock said:

“… this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied… It would… be most unwise … to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the words discretion) to exercise this salutary power.”

I have reached the very clear view, in agreement with the Master, that this claim is an abuse of process. Indeed, the claim also has a total absence of reality (Three Rivers DC -v- Bank of England (No.3) [2003] 2 AC 1 [158] per Lord Hobhouse) and its continued litigation would bring the administration of justice into disrepute. I would also dismiss the breach of confidence and misuse of private information claims under CPR Part 24 as having no real prospect of success, but the fanciful nature of these claims is also an integral part of my conclusion that it is an abuse of process. The appeal will therefore be dismissed. I will explain my reasons.

This claim is about the Facebook Profile. Objectively judged, it is anodyne and inoffensive. Its publication may have been mischievous, and the First Defendant’s explanation for it lacking in credibility, but, stripped of the strained and artificial construction put upon it by the Claimant, it was just a family photograph: a mother and a father and their three children. It is said that every photograph tells a story. But the story in this photograph is one the Claimant did not want told. He wanted to keep secret the fact that he had a separate family in Thailand. He contends that the 8-year relationship with the First Defendant was undertaken on “the express understanding that their relationship would at all times be kept secret from the Claimant’s family (in particular the Claimant’s wife), friends and business associates.” This is perhaps where the unreality begins. Most rational people would recognise that the chances of keeping secret the existence of a second “wife” and three children were slim to non-existent. It is plain, however, that the Claimant was confident that he could do so, perhaps relying on the fact that they were over 8,000 miles away from his first wife and life back in Illinois. That confidence was misplaced, as the Claimant was later to find.

The Facebook Profile was available to be viewed from February 2014. On the Claimant’s evidence, it was viewed by four people. They were attorneys instructed by him in the US who must have been fully aware of the Claimant’s relationship with the First Defendant and the existence of the triplets. To that extent, the Facebook Profile told them nothing that they did not already know. As a testament of the effectiveness of the Claimant’s legal team, the Facebook profile was taken down 1 day after it was found by his attorneys. In terms of publication, that is the full extent of the alleged wrongdoing by the First Defendant. It is true that the Facebook Profile was online from February, but there is no evidence that it was seen by anyone else and, in particular, anyone who knew the Claimant.

The pleaded case is that the publication of the Facebook Profile has “seriously infringed” his Article 8 rights and that the Claimant has “suffered damage to his personal dignity, autonomy, and integrity and has been caused anxiety and distress” (§7.1 Particulars of Claim see [32] above). Considering just the terms of the Facebook Profile, it is difficult to take this contention seriously. In light of the failure of the Claimant’s witness statement to provide any evidence to support this pleaded case ([36(i)] above) the pleading is nothing more than formulaic assertion.

Miss Skinner’s argument that publication is only one part of the wrongdoing in a misuse of private information case might have resonance in a different case, but here it is hollow. The whole premise of the claim is that, by posting the Facebook Profile, the First Defendant had made public what she had agreed to keep secret: her and the triplets’ existence and their relationship to the Claimant. When it comes to the alleged ‘loss of control’ of this information (about which the Claimant fails to make any complaint in his witness statement), the entire claim parts company with reality. The plain fact is that the Claimant has totally lost control of the information:

The fact that the First Thai Proceedings and the US Proceedings took so long, and extended over so many hearings, was because the Claimant appears to have appealed every significant order made against him. That was, of course, his right. But the consequence of this tenacious public litigation is that, as an exercise of personal autonomy, he has chosen to place all the supposedly private information in the Facebook Profile into the public domain and much more besides. Miss Skinner has suggested that the Court should ignore this and concentrate solely on the extent that the information has actually come to the attention of the Claimant’s family, friends and business associates. She draws an analogy with the position in PJS -v- News Group Newspapers Ltd [2016] AC 1081 where there had been substantial publicity in foreign and Scottish media of the private information the Claimant sought to protect. Reinstating an injunction, the Supreme Court held that a key aspect of the privacy right was intrusion and to refuse the interim injunction would involve significant additional intrusion into the privacy of the claimant, his partner and their children, notwithstanding the substantial publicity that there had been already.

I cannot accept that argument for two reasons.

As for breach of confidence, it is an essential ingredient of the cause of action that the information has the necessary degree of confidence (Coco -v- A.N. Clark (Engineers) Limited [1968] FSR 415, 419 per Megarry J). In my judgment, any confidence in the information in the Facebook Profile had been comprehensively exhausted by the Thai and US litigation. Paradoxically, as a result of the Claimant’s choice not to anonymise the Defendants, the proceedings themselves undermine yet further any claim to confidentiality.

When asked what tangible benefit the Claimant hoped to achieve by these proceedings, Miss Skinner identified damages and an injunction. I will analyse the claim for damages below ([59]-[62]), but I am satisfied at this stage that the prospect of the Court granting an injunction against the First Defendant is close to nil. The injunction sought in the Claim Form (and prayer of the Particulars of Claim) is: “to restrain the First and Second Defendants… from further publishing or causing to be published the Claimant’s Private Information”: the Private Information being defined in Paragraphs 4.1 to 4.3 of the Particulars of Claim ([32] above).

Pressed as to whether an injunction in such terms could be justified or likely to be granted (given that it would, on its face, for example prevent the Defendants from stating to anyone that the Claimant was the father of the triplets), Miss Skinner retreated from the wide terms of the suggested injunction and advanced a more limited form of order directed at preventing the First Defendant from disclosing the information to the Claimant’s “family, friends and business associates”. Leaving aside the difficulty of defining that category of people, there are a host reasons why, as a matter of principle, the Court would not grant even that limited form of injunction.

As to damages, even were it to be assumed that the Claimant would succeed on liability, the prospects of his being awarded a large sum by way of damages are remote indeed. The information in the Facebook Profile is anodyne, it was published to a handful of people, there is no evidence of any harm and, beyond formulaic assertion in a pleading, the Claimant himself does not even say that he is upset by its publication.

The Master referred in his judgment to the sort of awards made for breaches of the Data Protection Act 1998 (see §28 [39] above). There are relatively few cases in which the Court has assessed damages for misuse of private information. A recent example is Ali -v- Channel 5 Broadcast Ltd [2018] EMLR 17, in which two claimants were awarded £10,000 each for misuse of private information arising from a television broadcast which included footage of them being evicted from their home. The programme had been repeated on many occasions and had reached an estimated total audience of 9.65 million [1]. Applying Gulati -v- MGN Ltd [2017] QB 149, Arnold J found that, in principle, the Claimants were entitled to claim three heads of damage: (i) compensation for the misuse of the private information; (ii) damages for distress; and (iii) aggravated damages for distress caused by those actions of the defendant which is not caused directly by the wrongdoing e.g. by the way the claim has been litigated [212]. Under the first head, the Judge noted [215]:

“… the Claimants do not contend that the Programme caused them any particular loss or damage other than distress... Nevertheless, the Programme did involve the disclosure of their private information to 9.65 million viewers. While the information in question was not of the highest degree of sensitivity, it was fairly sensitive. Moreover, the Programme had a voyeuristic quality.”

He accepted that the Claimants had been distressed, particularly Mrs Aslam [216], and made a modest upward adjustment for an element of aggravation arising from the conduct of the litigation by the defendant [219].

It is never easy (and often it is not helpful) to compare awards in individual cases because so much depends upon the individual facts, but it is clearly strongly arguable that both in terms of the scale of the infringement and distress caused, Ali is a much worse case than the present one. Miss Skinner submits that the Court should take account of the importance of the claims in “vindicating the Claimant’s Article 8 rights and the serious nature of the alleged wrongdoing”. She also argues that the misuse in the Claimant’s case amounted to “a gross and deliberate betrayal of trust; in this case with the added aggravation that it was done for the specific purpose of embarrassing the Claimant and bringing pressure to bear on him in the US litigation” and submits that there are parallels with Burrell -v- Clifford [2017] EMLR 2.

I deal below with whether the Claimant is really interested in vindicating his Article 8 rights, but I do not accept that, on any view, the Defendants’ alleged wrongdoing is serious. There are perhaps some similarities with Burrell: by the time of the action for misuse of private information, Mr Burrell had himself put the material he complained about into the public domain [153]; there was an element of betrayal - also alleged against the First Defendant - that increased Mr Burrell’s distress; and the disclosure of the information was very limited (although more significant in the sense that it was to important people who did not already know the information). Mr Burrell was awarded £5,000 [165]. In my judgment, the Claimant’s claim is, by comparison with Ali and Burrell, trivial and technical and, even if successful, not likely to lead to an award of anything approaching these sums.

I turn finally to the Second Defendant. He did not seek the dismissal of the claim against him on the basis that the Claimant had no real prospect of proving that he had been involved in the publication of the Facebook Profile. Nevertheless, in the context of the argument over Jameel abuse, I would note the following matters:

Each of the factors that I have identified above combine to lead me to sure conclusion that this claim (a) is Jameel abusive; and (b) has been brought, not for any legitimate reason, but as an act of harassment or revenge against the Defendants. Bearing well in mind the authorities and principles I have set out in [41], I do not reach that latter conclusion lightly. My reasons are these:

For all these reasons, in my judgment, Master Yoxall was entirely right to conclude that this claim was not “worth the candle” (§§33-34: see [39] above) and that the Claimant was pursuing it for the improper ulterior motive of his “continuing battle with the First Defendant” and that the claim was “harassing in nature” (§32). He was right to strike out the claim as an abuse of process on both grounds. I would also have dismissed the breach of confidence and misuse of private information claims under Part 24 as having no real prospect of success. The appeal is dismissed.

In many ways, this case is extraordinary. But it is also very sad. Caught in the cross-fire are three young children. It scarcely needs saying, but bringing this worthless claim against their parents carried the obvious risk of causing harm to those children.

As noted above, an order anonymising the Claimant was made on 14 December 2016 ([2] above).

The extent of the material available in the public domain (which I have identified above), and the fact that the Defendants had not been anonymised, led the Defendants to issue an Application Notice, dated 12 February 2018, seeking (albeit belatedly) the discharge of the anonymity order (“the Anonymity Application”). That Application was heard by me on 22 March 2018 at the commencement of the adjourned hearing of the appeal. Reluctantly, I refused to discharge the order. I gave my reasons at the time in an extempore judgment.

The principle in Cream Holdings -v- Banerjee [2005] 1 AC 253 meant that discharging the anonymity order, at that stage, would have led to the Court itself destroying the private/confidential material that, by the proceedings, the Claimant was trying to protect. The parties in Cream Holdings were not anonymised. As a result, the Court omitted details of the confidential/private information that was the subject of the litigation. The injunction was discharged, and the newspaper was free to publish the information. Unless and until the newspaper had done so, the Court had to be careful not itself to destroy the confidence/privacy that the Claimant sought to protect by including the information in a public judgment. Lord Nicholls explained:

However, as a result of the anonymity order having been granted in this case, the route adopted in Cream Holdings - of identifying the parties and not including the information that the Claimant contends is private - was not available. Had this been the first hearing of the claim, the position might have been capable of adjustment (i.e. to remove the anonymity and then limit the information in the public judgment). But this course was not available because all the information that the Claimant seeks to protect by this action had been included in the public judgment of Master Yoxall. If I had removed the anonymity at that stage, the effect would have been, retrospectively, to do what the House of Lords has held should not be done; i.e. the Court itself publishing the information.

The position is now different. Not only has the Court now dismissed the appeal, I have also found that the claims for breach of confidence and misuse of private information have no real prospect of success. The Claimant does not have a reasonable expectation of privacy in the information he was seeking to protect, and it is not confidential. As the justification for anonymity has therefore gone, ordinarily that would justify (and, consistent with the principle of open justice, require) the discharge of the anonymity order.

The only countervailing interest of any weight is the potential impact of reports of this litigation on the triplets. Once the order for anonymity is discharged, and the Claimant named in this judgment, reports of the proceedings naming the Claimant may well appear in this jurisdiction and beyond. It is not fanciful to suppose that at some point, maybe not immediately, this media coverage might come to the attention of the triplets. But the reality is that, even if I referred to the Claimant in this judgment as BWK, the overwhelming probability is that the Claimant’s identity could be easily ascertained from the publicly available material and the same media reports could then appear.

If publicity potentially damaging to the triplets results from this judgment, then that is a regrettable further consequence of their being caught in the cross-fire of this misguided litigation. It is abundantly clear that, in seeking anonymity only for himself, the Claimant was motivated solely by self-interest. He could scarcely have considered the children at all in reaching that decision. Indeed, anyone remotely concerned for the welfare of the children would never have brought the proceedings at all. In Re S [2005] 1 AC 593, the likely effect on a child of reports of a criminal trial in which his mother was charged with murder was described as “dreadfully painful” [24] although that the impact on him was indirect [25]. These are civil not criminal proceedings, but the principle of open justice applies with equal force. I cannot maintain the order for anonymity as a matter of either principle or practicality. The order will be discharged.