In BUQ v HRE, Mr Justice Warby granted the claimant summary judgment and a permanent injunction prohibiting the disclosure of private information even though a cross-application to commit the claimant for contempt of court was to be determined at a later date.
The claimant was the CEO of a large group of companies and the defendant was the managing director of one of the group’s subsidiaries. The claimant had obtained an injunction against the defendant, with anonymity, restraining the disclosure of information, including text messages and photographs, relating to sexual activity between them. The information itself was considered to be highly private and confidential and there was no public interest in its disclosure as against a strong public interest in prohibiting the defendant who was shown to have been blackmailing the claimant with threats of publication in the absence of a large “severance” fee. The defendant then pursued Employment Tribunal (“ET”) proceedings (which were also anonymised), which he lost, with the ET making findings in favour of the claimant, including as to the blackmail.
Three years later, the claimant applied for summary judgment, largely on the basis of the ET proceedings, which the claimant submitted meant that the defendant’s defence had no realistic prospect of success. The defendant cross-applied to discharge the interim injunction and commit the claimant for contempt on the basis of inaccuracies in the claimant’s witness statements about his sexual life (including details of his relationship with the defendant).
Warby J gave a clear and well-reasoned decision that, even if shown to be true, the contempt allegations did not undermine the application of the summary judgment principles in the claimant’s favour. Warby J distinguished on the facts his recent decision in YXB v TNO  EWHC 826 (QB) (see our post here), in which an interim order was discharged and not continued on the return date for material non-disclosure, and followed the high threshold established by the Supreme Court in Summers v Fairclough Homes Ltd  UKSC 26 for the strike out of a statement of case for abuse of process.
At the interim stage, Mr Justice Tugendhat had ruled that there cannot be a reasonable expectation of privacy in respect of sexual activity where it is “abusive or amounts to sexual harassment“. The ET determined that such allegations by the defendant were unfounded. Further, the finding of the ET that the claimant was a victim of blackmail added additional weight to the claimant’s rights. As a blackmailer, the defendant’s rights under Article 10 of the European Convention on Human Rights were of limited value and, against that, both the claimant’s wife’s rights under Article 8 of the Convention and, crucially, their son’s rights, added considerably to the balance in favour of an injunction.
Warby J considered that there was sufficient evidence of a risk of unlawful publication to warrant a permanent injunction and further that there was no real prospect that the court would withhold a remedy on the basis that the claimant had lied or that the claim was an abuse of process. As to the latter, in Summers, the Supreme Court held that “[t]he 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….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”. Indeed the facts of Summers, in which the the claimant in a personal injury case was shown to have lied extensively about his injuries, demonstrated quite how high the bar was.
Warby J considered that the defendant’s allegations as to the claimant’s contempt could not be definitively rejected as unfounded and would need to be properly considered. However, the defendant’s application to commit the claimant for contempt had not followed the correct permission procedure under Part 81 of the Civil Procedure Rules. The claimant submitted that Part 81 must be followed in order to accord the proper procedural safeguards to the claimant. Warby J agreed and gave permission for his application to be amended and the proper procedure followed within a particular time period. Acknowledging that it was possible that if the defendant was successful in proving the contempt the court might wish to vary the injunction granted by Warby J and make an appropriate costs order, Warby J gave the defendant liberty to apply to vary the injunction. However Warby J held that: “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”.
BUQ v HRE  EWHC 1272 (QB)