BVG v LAR

hearing if the ordinary public procedure in court would jeopardise the very right which the Claimant is seeking to protect. Ms Michalos also submitted that, if the hearing was in public, the Defendant, who is representing himself, would find it more difficult to distinguish between information which could not be referred to in public without infringing the anonymity directions. LAR opposed the application. He disputed that he had blackmailed the Claimant and wished to oppose the Claimant’s substantive application in public. I agreed with Ms Michalos that it was necessary for the administration of justice for the application to continue in private. As she submitted, it was not necessary for me, in reaching that conclusion, to make a finding that the Defendant had blackmailed the Claimant, but it would be enough if, on the evidence before me, I considered that there was at least a prima facie case that the Defendant had blackmailed the Claimant. I agree that there is such prima facie evidence (at least) and I also agree that the existence of such evidence is a further reason for holding the remainder of the application in private.

Michalos submits that the Defendant’s Defence does not comply with these requirements. It does not address each of the allegations in the Particulars of Claim and say whether that allegation is admitted, denied or not admitted. Nor is the pleading supported by a statement of truth. Doing the best that they can, the Claimant’s solicitors have prepared a table which sets out each of the allegations in the Particulars of Claim and specifies whether the Defence admits, denies or does not address the allegation. This is a useful exercise. It should be emphasised that the expression ‘NA’ in the table means that the allegation in the Particulars of Claim was not addressed, rather than ‘not admitted’, which is a common response in a Defence to allegations in Particulars of Claim. This table appeared in an exhibit to Ms Bridgman Baker’s witness statement of 31^st January 2020. The Defendant has not suggested that it was inaccurate.

remedy and a more proportionate remedy would have been to give the Defendant an opportunity to cure the errors by serving an amended pleading which did conform with the rules and the Practice Direction.

‘The Court may give summary judgment against a ...defendant on the whole of the claim or a particular issue if – (a) it considers that ...

‘The claimant’s Article 8 rights are engaged by the defendant’s threatened use of private information relating to the claimant’s sexual life. This is particularly so bearing in mind the existence of the clandestinely recorded video footage of a BDSM [bondage, discipline and sadomasochism] session involving the claimant, which appears still to be in the defendant’s possession. The claimant clearly has a reasonable expectation of privacy in relation to his sexual behaviour. Any publication of visual images relating to his sexual behaviour would clearly be a further intrusion into those rights.’

It is not clear, in fact, that the defendant has Article 10 rights in relation to the information he possesses concerning the claimant’s sexual behaviour, disclosure of which would contribute nothing to any debate of general interest in a democratic society: Von Hannover v Germany [2004] EMLR 21 (European Court of Human Rights) at [76] ....

Lord Mance doubted in PJS (PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081) whether the mere reporting of sexual encounters of someone, however well known to the public, would even fall within the freedom of expression under Article 10: PJS at [24]. The PJS case concerned celebrities. Where, as in this case, the claimant is a private individual, who is not a public figure, the argument is even stronger that information about his private sexual activities does not engage Article 10.

Assuming for the sake of argument that the defendant’s Article 10 rights are engaged, which is doubtful for the reasons I have given, I have no hesitation in concluding that the claimant’s Article 8 rights would far outweigh them.

The foregoing reasons are sufficient to grant the non-disclosure order sought, but when one adds the prima facie evidence that the defendant was blackmailing the claimant, the case for the injunction is, in my judgment, overwhelming. At the hearing before me, the defendant denied that he had blackmailed the claimant, but he appeared to accept the suggestion that I made to him that, given the evidence, it might appear to a third party as though that was what he intended to do. He indicated that when the matter came to trial, he intended to contest any suggestion that he was blackmailing the claimant. Based on the evidence I reviewed, I am satisfied that there is a strong prima facie case that the defendant was, in fact, blackmailing the claimant, resulting in the claimant making a number of very substantial payments to him over a period of years.

Two recent cases, LJY v Persons Unknown [2017] EWHC 3230 (QB) (Warby J) at [2], [29]-[30] and NPV v QEL [2018] EWHC 703 (QB) (Nicklin J.) at [26] provide authority for the proposition that the presence of a prima facie case of blackmail based on private information strengthens a claim for a privacy injunction in relation to that private information.’

I was hearing an application for summary judgment (and to strike out the Defence). Such an application is conducted on the basis of written evidence. At times LAR gave the impression that he wished to subject himself to oral questioning, but that is not the way that such applications proceed. They do not become ‘mini-trials’ (see for instance Swain v Hillman [2001] 1 All ER 91), even on the written evidence, still less with the aid of cross examination. ii) Blackmail is, of course a criminal offence. By s.21(1) of Theft Act 1968,

Nonetheless, these are civil proceedings and the common standard of proof will apply at trial i.e. the balance of probabilities. It is not the criminal standard where the court must be ‘sure’ that the elements of the offence have been proved.

But at this stage I am not applying the balance of probabilities test: I have to consider whether the defendant has a ‘real prospect’ of successfully defending the claim. As Lord Hobhouse said in Three Rivers DC v Bank of England (No.3) [2001] 2 All ER 513,

At the same time, the defence must be more than merely arguable – see ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8].

As the White Book says the burden of proof rests on the applicant for summary judgment (here the Claimant) to establish that the Defendant has no real prospect of successfully defending the claim and that there is no other compelling reason for a trial, but if the claimant adduces credible evidence to satisfy those two criteria, then an evidential burden passes to the defendant to show that the defence does have a real prospect of success or that there is some other compelling reason why there should be a trial.

In deciding whether there is no compelling reason for a trial, it is not sufficient for the defendant to rely, like Mr Micawber, on the hope that something will turn up. At the same time, I should adopt a realistic approach as to whether the evidence might look different when tested by cross examination or when the remaining stages of pre-trial preparation (such as disclosure) have been completed – see for instance Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550.

Murray J. had been considering an application for an interim injunction which would have impinged on the Defendant’s freedom of expression. As Murray J. acknowledged, that meant he had to consider whether, at trial, the Claimant was likely to succeed in being granted injunctive relief (see Human Rights Act 1998 s.12(3)) and, in turn, that meant that, on the balance of probabilities, the Claimant was more likely to succeed than not (see Cream Holdings Ltd v Banerjee [2005] 1 AC 253). His decision to grant the interim injunction has to be seen in that light. However, of course, there is before me more evidence than there was before Murray

1(1) as,

which amounts to harassment of another, and

which he knows or ought to know amounts to harassment of the other.’

‘For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.’

‘[25] The claimant also seeks protection against harassment by the defendant. I am satisfied that the same behaviour of the defendant that gives rise to a prima facie case of blackmail is also a course of conduct amounting to harassment within the meaning of section 1(2) of the Protection from Harassment Act 1997 (“the 1997 Act”) and that no apparent defence arises under s.1(3) of the 1997 Act. Warby J noted in LJY [see above] at [33]-[37] that repeated threats to publish private information amounting to a course of conduct could amount to harassment, provided that it is calculated to cause alarm or distress and is oppressive and that it is unacceptable to a degree that would sustain criminal liability. I conclude that those criteria are satisfied prima facie in this case on the basis of the defendant’s course of conduct in his communications with the claimant, which have persisted despite contractual undertakings given by the defendant on at least three occasions and despite substantial payments having been made to him in exchange for those undertakings.

[26] I am also satisfied that the claimant has established a prima facie case that he has suffered severe anxiety and distress as a result of the defendant’s behaviour, and that the defendant has been aware of this for a period of years.’

The Defendant has produced no evidence that he lent any money to the Claimant of which the payments by the Claimant were repayments of such loans. So far as the Defendant offers this as an explanation for moneys received by him from the Claimant, I am confident that it has no reasonable evidential basis.

The Claimant has said that the moneys he provided to the Defendant were exclusive of the payments he made for BDSM services. So far as the Defendant has alleged that they were payments for such services, his Defence is so lacking in particulars that I consider it has no realistic prospect of success.

I agree with Murray J. that, as at the date of the interim injunction application, the evidence was strong that the Defendant has suffered considerable anxiety and distress as a result of the Defendant’s actions. Nothing in the Defendant’s evidence rebuts that evidence. On the contrary, the evidence shows that subsequent to September 2019 the Defendant’s conduct has been further calculated to cause the Claimant alarm and distress. The Defendant has no realistic prospect of defending the claim that what he subjected the Claimant to amounted to harassment.

Murray J. considered that there was a strong prima facie case that the Defendant would not have a defence under s.1(3) of the 1997 Act. I go further: in my judgment the Defendant has no realistic prospect of succeeding by reference to that subsection.

If anything, the events subsequent to the grant of the interim injunction have shown that the Defendant remains aggrieved by what he perceives as the broadcaster’s wrongs against him and the risk of him continuing to harass the Claimant remains very real.

permanent injunction.