BVG v LAR (No 2)

The Claimant applied for summary judgment and a final injunction restraining the Defendant from harassing him and publishing private and personal information, including graphic film footage obtained secretly without his knowledge relating to his sex life. Fuller facts and background are set out in the earlier public judgment of Murray J (BVG v LAR (No 1)  [2019] EWHC 2388 (QB) ) granting an interim injunction as follows:

The Claimant is a retired businessman and former public servant but was not and is not a public figure. The Defendant provided the claimant with specialised male escorting services known as bondage, discipline and sado-masochism (‘BDSM’) irregularly over several years. Their contact broke in the mid-2000s. The Defendant contacted the Claimant out of the blue and they began to communicate again. The Defendant then told the Claimant that one of their BDSM sessions had been secretly filmed.

A pattern developed over the following years by which the Defendant would periodically communicate with the Claimant requesting money and making statements which appeared to be veiled threats to expose the Claimant publically.

Murray J granted an interim injunction on 6th September 2019. Particulars of Claim were served on 25th October 2019 and the Defendant filed a defence.

The Claimant applied both for summary judgment and to strike out the defence on the basis it did not disclose a reasonably arguable defence. The Defendant denied blackmailing the Claimant and submitted the payments he had received from the Claimant were for BDSM services or repayment of loans.

1. Did the Claimant have a reasonable expectation of privacy?

2. Did the Defendant have a real prospect of successfully defending the claim for breach of confidence/misuse of private information in the light of the balancing of competing rights?

3. Did the Defendant have a realistic prospect of successfully defending the harassment claim?

Granting summary judgment and a final and permanent injunction:

1. A person’s sexual life and activities are clear examples of his private life which are protected by Article 8 (applying Mosley v Newsgroup Newspapers [2008] EWHC 1777 (QB).  There were no reasonable grounds for the Defendant to dispute that the Claimant had a reasonable expectation of privacy in the information in issue.
2. 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. The Court 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 complete.
3. Adopting the reasons of Murray J on the interim injunction application, that following the observations of Lord Mance in PJS v News Group Newspapers Ltd [2016] UKSC 26 that it was doubtful that the mere reporting of sexual activity of a person however well known would fall within Article 10, that argument was even stronger where  (as in the present case) the claimant is a private individual who is not a public figure. The balancing of competing rights came down firmly in the Claimant’s favour.
4. The Defendant had produced no evidence that he lent any money to the Claimant such that any payments by the Claimant were ‘repayment of loans’ as the Defendant claimed. Equally, claims that money paid to the Defendant was for BDSM services were so lacking in particularity that it had no reaslistic prospect of success. The evidence showed that the Defendant’s conduct after the interim injunction was granted was further calculated to cause the Claimant alarm and distress. Even setting aside the evidence of blackmail, the Defendant had no realistic prospect of defending the claims for harassment or misuse of private information.

A final injunction and summary judgment was granted even where the Defendant disputed the factual case on blackmail. It demonstrates that even in the face of authorities counselling against ‘mini-trials’ on a summary judgment application, it is possible to obtain a final injunction where there is a factual dispute. It remains necessary for a defendant to put forward a defence that is more than merely arguable.  As the Court put it rather more colourfully “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  [26] (vii)).

Due to the Coronavirus epidemic the application was conducted by telephone.  The hearing began as a public hearing with two journalists attending by telephone. An application was made for the remainder to be heard in private which was granted. Procedurally, once an order has been made for the hearing to be heard in private, it was necessary for the call operator to be contacted to confirm that any reporters on the call or members of the public had left as required by the order because it was only the operator who could see the individuals connected into the telephone conference.

The earlier public judgment of Murray J granting the interim injunction provides a fuller factual background and is available here.

• BVG v LAR (No2) Judgment on Bailii