BVC v EWF (No. 2)

The Claimant (“C”) applied for summary judgment in a claim for misuse of private information and harassment, and to strike out D’s counterclaim. The privacy claim arose from a website created by the Defendant (“D”), giving his account of his relationship with C, and the harassment claim from a series of email communications from D to C, over a period of some two years, and from publication of the website itself.

D was granted an ex parte injunction on 27 June 2018 by Nicklin J. By that order, D was restrained from contacting or harassing C, from publishing the website or any of its contents to the world at large, and from publishing any of the information set out in a confidential schedule, or any information which was liable to or might identify C as a party to the proceedings or as the subject of the confidential information.

The information set out in the confidential schedule was information concerning C’s sexuality and his relationship with D; his sexual life, including intimate details of sexual activity; his health, including intimate details relating to his mental and sexual health; his family life, including relationships with his mother and brother; financial information; and allegations that he had been involved in criminal or regulatory wrongdoing.

The interim injunction was continued by Nicklin J on 4 July 2018, and by Dingemans J on 22 November 2018, on both occasions in the absence of D.

D made a cross-application seeking an order striking out the claim pursuant to CPR 3.4 and discharging the interim injunction on six grounds: (1) C did not have his centre of interests in England and Wales; (2) no alleged act or alleged harm has occurred in England and Wales; (3) the injunction interfered with D’s rights under Article 10 and Article 8 of the ECHR; (4) the claim was an abuse of process as per Jameel v Dow Jones; (5) the claim was an abuse of process as the “nub” of C’s claim was reputation; and (6) C should not be entitled to any equitable relief as he had breached the clean hands doctrine.

Following the granting of the interim injunction and the return date, D had made a challenge to the Court’s jurisdiction, putting in evidence to the effect that he currently lived and worked in Switzerland, had done so since 2017, and was in Zürich on 27 June 2018 when the Claim Form and accompanying documents were served on him by email.

The challenge to jurisdiction was heard on 5 October 2018 by Karen Steyn QC sitting as a deputy judge of the High Court. The deputy judge dismissed D’s application with costs, BVC v EWF [2018] EWHC 2674 (QB). She held that C had a good arguable case that this jurisdiction was the state in which he had the centre of his interests, and that in any event a real and substantial tort (namely misuse of private information) had been committed within the jurisdiction. D sought permission to appeal from the judgment of Karen Steyn QC but was refused permission by Floyd LJ on 14 February 2019.

C filed and served a Particulars of Claim and D filed and served a Defence and Counterclaim. In the counterclaim, D relied on causes of action in ‘negligence, battery and assault, intention infliction of harm (sic), trespass to goods, conversion, deceit, malicious prosecution and abuse of process’.

D strongly disputed in the Defence that this jurisdiction was the centre of the Claimant’s interests, maintaining that in reality that centre was State B. C maintained that it was not open to the Defendant to pursue his jurisdictional challenge since that had been conclusively and finally determined by the deputy Judge.

1. Was it still open to the Defendant to challenge the jurisdiction?
2. Was it is necessary to refer a question of interpretation relating to the “centre of interests” doctrine to the ECJ pursuant to Article 267 of the TFEU?
3. Should C be granted summary judgment on his claim in misuse of private information?
4. Should C be granted summary judgment on his claim in harassment?
5. Should D’s Counterclaim be struck out?
6. Should D’s cross-application to strike out the claim and discharge the injunction be granted?
7. Was C entitled to an order that D should take no further steps in the litigation until he satisfies the substantial costs orders made against him?

Granting summary judgment on C’s claim in privacy, refusing summary judgment on C’s claim in harassment, striking out D’s counterclaim, dismissing D’s cross-application, and refusing an order preventing D from taking further steps in the litigation.

1. It was not open to D to attempt to keep his challenge to the jurisdiction alive until trial. His position that the judgment of Steyn QC and the refusal of permission to appeal should not be the final word on the C’s centre of interests was a refusal to accept the decisions of the courts. The jurisdiction issue was settled, both as to challenge to jurisdiction and as to any contemplated challenge to the exercise of jurisdiction.
2. A preliminary reference may be submitted if a question of EU law is raised before a national court, and a decision on that question is necessary for the national court to give judgment in the case. The law on centre of interests was not in doubt, and has been clearly stated by the ECJ in E-Date and Bolagsupplysningen. No decision on EU law was necessary for the Judge to give judgment.
3. C wanted to keep the relationship with D secret. The central information disclosed by D was information about C’s sexuality and sexual behaviour. C did have a reasonable expectation of privacy in the website information, and it was misconceived to assert that C had no reasonable expectation of privacy in D’s allegations of wrongdoing. The justification which D advanced for worldwide publication of his account was very slender and his defence to the privacy claim was not even arguable. But for the injunction, a real and substantial tort would have been committed within the jurisdiction (and beyond) and there was more than sufficient ground for C to apprehend further publication. C was entitled to summary judgment for a final injunction to restrain further misuse of his private information
4. Following the end of the relationship between C and D, D was making threats to disclose the details of their relationship if C failed to make some unspecified choice. At the same time, he was both disavowing any intention of blackmail and making clear that he had financial difficulties (he admitted having been financially dependent on C) with which C could help. The sequence of emails sent by C to D was highly threatening in its tone, and made a series of repeated demands of D. C’s case that that the sequence of emails, and the publication of the website, caused him enormous anxiety and distress was wholly credible. C had established a very strong prima facie case of harassment. D’s course of conduct as a whole, including the publication of the website account, was so unreasonable that in principle it would be necessary (in the sense of a pressing social need) and proportionate to limit his Art.10 rights in the protection of the rights of the Claimant under Art 8. However, D contended that the applicable law for the harassment claim was State B law, since C appeared to have been in State B throughout. D had a real prospect of successfully defending the harassment claim and the Judge refused to order summary judgment on this part of the claim.
5. The claim in negligence did not plead the necessary elements of a cause of action and was out of time. The claims in assault in the UK were out of time and it was difficult to see how claims relating to foreign assaults could properly be brought in this jurisdiction. The claim for intentional infliction of emotional harm was inadequately pleaded and there was no allegation that the actions relied upon took place in this jurisdiction. It was difficult to see how a claim in trespass to goods could be brought in this jurisdiction. The case in deceit was inadequately pleaded and unsustainable. There was no basis for supposing that the tort of malicious prosecution was made out. Neither abuse of process nor allegations regarding C’s conduct of the proceedings disclosed a viable cause of action. The counterclaim was struck out.
6. The first ground had been determined against D already. On the second ground, D had a real prospect of defending the harassment claim but it did not follow that it should be struck out. As for the third ground, D’s argument was not accepted so far as concerns the claim in privacy but there was a real prospect of defending the claim in harassment, but that does not mean that the claim should be struck out. On the fourth ground there was substantial value to C in the primary relief that he sought as far as misuse of private information was concerned, namely a permanent injunction. On the fifth ground, the fact that C could have pleaded a cause of action in defamation in respect of some of the allegations was no answer to a claim for an injunction to restrain breach of privacy. The sixth ground was misconceived.
7. There was no basis in Hadkinson v Hadkinson [1952] P 285, recently reviewed by the Court of Appeal in Orenga de Gafforj v Orenga de Gafforj [2018] EWCA Civ 2070; [2019] 1 FLR 73 to grant the Order since D was not in contempt of court. No order was granted.

The judgment is a detailed and valuable contribution to several evolving areas of media law, particularly in cases where one or both parties are not domiciled in England and Wales. Firstly, it explains why, where a defendant has unsuccessfully challenged jurisdiction and a claimant has established their “centre of interests” in this jurisdiction, it is not then open to a defendant to continue to challenge jurisdiction within the proceedings. This is consistent with the approach taken to applications under CPR Part 11.

Second, the judgment addresses the difficult area of the conflict between the right to tell one’s own story in one’s own words, and the privacy rights of a person who may be one of the subjects of that story. Here, the balance is struck firmly in favour of the Claimant’s right to be protected from uncompromising intrusion into his private space.

Third, the judgment analyses how the Court may approach harassment under the PHA 1997 where a claimant is outside the jurisdiction at the time when the alleged conduct takes place, although it does not reach conclusions on this question, given the nature of the applications which were being considered. This is a question which frequently confronts practitioners, but which has so far only received limited judicial consideration.