Full case report
AVB v TDD
Reference  EWHC 1442 (QB)
Court High Court (QBD)
Judge Tugendhat J
Date of Judgment 12 May 2014
Privacy – Harassment – Breach of Confidence – Breach of Contract – Damages – Injunction
C, a solicitor, met D through an escort agency. Their relationship was that of client and sex worker. After the breakdown of their relationship (which had been on and off for about 14 months), C applied for, and obtained, an interim injunction against D preventing her from disclosing private information about C and his family, information about C and D’s relationship and photographs of C engaged in private acts. The interim order was granted by Tugendhat J on 24 May 2013. The matter then proceeded to trial, at which C claimed damages and an injunction for misuse of private information, harassment, breach of confidence and breach of contract (a confidentiality agreement C and D entered into during their relationship). D counterclaimed in harassment.
The key parts of the conduct that C complained of can be divided into 3 stages:
Stage 1 – D sent a series of emails to various persons at C’s firm claiming ‘punter fees’ from C and giving details of their relationship and other private matters which C had disclosed to her during their relationship.
Stage 2 – D set up a false Facebook account in C’s (misspelt) name using a selfie of C and D kissing as the profile picture. She then sent friend requests to various persons, including C’s daughters (both adults), who were unaware of C and D’s relationship.
Stage 3 – D took confidential information in the form of seven documents recorded on USB memory sticks from C’s flat and sent further emails disclosing private information to C’s co-workers. D also sent Facebook messages to C’s daughter which contained private information relating to C’s past relationships and his relationship with D, as well as private information that C had told D during their relationship.
D complained that C had harassed her by (a) threatening to inform the college where D was studying law about her sex work, (b) threatening to inform D’s parents about her sex work, (c) attending D’s home uninvited late at night, or threatening to do so, to demand sex, (d) threatening to kill D, (e) attending D’s hairdresser’s salon and questioning her hairdresser as to D’s whereabouts, and (f) sending prank texts to D’s friends pretending to be an Asian call girl.
(1) Did D’s conduct amount to a breach of contract ?
(2) Did D’s conduct amount to misuse of private information/breach of confidence?
(3) Did D’s conduct amount to harassment?
(4) Was C entitled to damages and/or an injunction?
(5) Did C’s conduct amount to harassment?
(6) Was D entitled to damages and/or an injunction?
(1) C’s claim in breach of contract failed. The agreement could not be construed as applying to communications about the terms on which C and D were agreeing or negotiating the provision of sexual services at a time after a dispute had arisen between them. D acted in breach of her duty of confidentiality to C when she disclosed information relating to third parties which C had disclosed to her or she had learnt from C’s memory sticks. However, in so far as she disclosed the information to colleagues and family members who could influence C’s behaviour (i.e. his alleged failure to pay her fees) it could not be a breach of confidence or contract. The circumstances also raised strong arguments that the agreement was entered into under actual, or at least presumed, undue influence. Further, the agreement was unenforceable on grounds of public policy as D was purporting to give up her right to complain of what she claimed was C’s exploitation of her.
(2) C’s claims in breach of confidence and misuse of private information succeeded in part. The claims failed in relation to the fact of the relationship between C and D, and D’s claims that C was not paying her for the same reasons as the contract claim. However, in respect of the information about C’s wife and children, and about other women with whom he had been in relationships, C had a reasonable expectation of privacy or the information was protected by confidence. The information in the USB sticks was obtained by D in breach of her equitable duty of confidentiality. Further, D had admitted that she should not have sent the Facebook messages to C’s daughter containing private and confidential information.
(3) D’s actions did not amount to harassment. The facts of the case raised difficulties as there was a long interval between the acts complained of. They were too far apart to be part of the same course of conduct within the meaning of the Protection from Harassment Act. D’s actions demonstrated her tendency to respond in similar fashion when angered, but they were not part of a single course of conduct. The Facebook messages to C’s daughter were not a course of conduct. They were a series of messages but were all close together in time and all came to C’s knowledge at the same time. The communications to C’s colleagues and others did amount to a course of conduct, both in themselves and together with the Facebook messages, and were clearly targeted at C. Although C had not suffered distress, the test was an objective one and the conduct would be likely to cause distress to most people. However, it was necessary to consider the actual circumstances in which the conduct occurred. After D’s previous behaviour, C had revived his association with D and continued to provoke her by his manipulative and exploitative behaviour. It therefore could not be said that D’s conduct was objectively likely to cause distress to C. Further, apart from the messages to C’s daughter, D’s conduct was not oppressive towards C.
(4) C was not entitled to damages for misuse of private information or breach of confidence. Although C had suffered embarrassment from learning of these disclosures, he had not suffered real or significant distress. C took pleasure in provoking D’s anger and other emotions, and it would not be just that he should receive damages for those occasions when his provocations resulted in excessive reactions. However, D had shown herself to be erratic and unpredictable and ready to disclose private and confidential information when provoked, and therefore there was a real risk that she would disclose C’s private and/or confidential information in the future.
(5) D’s counterclaim in harassment succeeded. C’s exploitative and manipulative behaviour towards D amounted to a course of conduct which was harassment within the meaning of the 1997 Act. She was alarmed and distressed by his threats to disclose the fact that she was a sex worker.
(6) D was not entitled to an award of damages. She chose to continue to seek to retain C as a client knowing how he behaved. If her distress had been more than passing she could and would have ceased to have anything to do with C. There was no such risk of C repeating his conduct as to justify the grant of an injunction against him.
The judgment provides guidance on various principles which the court regularly deals with in harassment and misuse of private information claims, with some interesting results in the exceptional factual context of this case. The judgment emphasises the need for the court to be satisfied that a claimant has suffered distress before awarding damages for misuse of private information or breach of confidence. In relation to the harassment claim, of particular note are: (a) the Judge’s finding as to whether the Facebook messages amounted to a course of conduct, which involved considering whether the messages came to the knowledge (and would be expected to come to the knowledge) of AVB at the same time, and (b) the finding that although D’s conduct would be objectively oppressive to the most people, it was not objectively likely to cause distress to C given his decision to revive the relationship after D’s previous behaviour.
Stokoe Partnership for the Claimant; Richard Slade and Company for the Defendant
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