Full case report
BUQ v HRE
Reference  EWHC 774 (QB)
Court High Court (QBD)
Judge Tugendhat J
Date of Judgment 29 Mar 2012
misuse of private information- employment tribunals – interim non-disclosure order – issue of proceedings – right to a fair trial – right to respect for private life
The Claimant (C) and Defendant (D) were both senior employees within the same group of companies, the majority shareholder being the Group Owner.
D reported to C. For many years, C and D enjoyed a good relationship, exchanging text messages and e-mails, many of which related to matters of a sexual nature. These included references to C’s wife.
C was notified of allegations of unrelated wrongdoing made against D in his capacity as Managing Director of a group company. C claimed that during a subsequent meeting between himself and D, D offered to resign in exchange for a severance package of £xm, including the sales of his shares in the company. C claimed that this sum was a gross over inflation of the actual value of D’s shares. The following day, D sent an email to C threatening to disclose allegations of sexual abuse against C and C’s wife to the public, and stating that these could be proved in court by text messages and e-mails. Two weeks later, D made further threats to disclose his allegations to the public at a meeting attended by the Group Owner and D’s solicitor. About a week after that the Defendant sent a note to the Group Owner’s in house counsel containing a number of complaints, and the threat to “tell my story which is ‘the Truth’ by whatever means necessary to expose [C]”.
On 13 March 2012, C obtained an interim non-disclosure order from Bean J, restraining D from disclosing any information of a sexual nature concerning him or his wife to any person other than his legal advisors. C denied the allegations against him and his wife and claimed that D had made a number of attempts to obtain money that were “tantamount to blackmail”. This was in fact a reference to proposals made by D to the Group Owner in the course of ongoing negotiations over the terms of his departure, which would if successful lead to a settlement of all his claims against the group. It was clear by the time of the injunction hearing that D was asserting claims for breach of contract, constructive unfair dismissal and sexual harassment.
D denied the allegation of blackmail; he maintained his allegations of sexual harassment and his intention to commence Employment Tribunal proceedings for unfair dismissal and sexual harassment.
At the return date D applied for a variation of the interim injunction so as to allow him to include the private information in any claim form presented to the Employment Tribunal (form ET1) without restriction. C argued that the information could only be included in the ET1 subject to a prior condition that a draft of the form would be first submitted to C for agreement, so that, if C did not agree, the parties could come back to the court to resolve the question of what information D should be permitted to include.
Should the interim injunction be varied subject to the conditions sought by C, or should D be free to present his Employment Tribunal claim in the form that he and his advisors thought fit?
Finding for D, Tugendhat J held that the order was to be continued with the variation in the form sought by D and without C’s proposed conditions. He began by identifying the Convention rights which might arise for consideration in the case. These were C’s privacy rights under Article 8, and, for D, the rights to freedom of expression under Article 10 and of access to the Employment Tribunal under Article 6. Noting the approach in Murray v Express Newspapers Plc  Ch 481 to deciding whether the publication of information which is said to be private should be permitted, the Judge concluded as follows:
(a) Whilst there was no doubt that a personal normally had a reasonable expectation of privacy in respect of sexual activity, that could not be the case where the activity was abusive or amounted to sexual harassment. The fact that the activity occurred in a relationship between employees was relevant in deciding what a reasonable person of ordinary sensibilities would have felt if placed in the same position as C, as the place of activity was one of the circumstances specifically mentioned in Murray.
(b) It was also relevant that C was a more senior employee than D, as a person of ordinary sensibilities in such a position would be expected to appreciate the possibility that information that might otherwise be private would be disclosed to those responsible for determining work place disputes, including an Employment Tribunal.
(c) As regards the concerns expressed by C for his family, the Judge noted the absence of any direct evidence from C’s wife and declined to accept at face value C’s claim to speak for her. With regard to the position of the children, no submissions were put before the court on their behalf.
(d) It was accepted that persons involved in legal proceedings might attempt to abuse the process of the court by seeking to publicise under the protection of absolute privilege allegations for which they would not have such protection elsewhere. To seek to put before a tribunal material known to be irrelevant which interfered with the rights of others would be an abuse. The risk of this happening would normally be much reduced where the parties were legally represented. C’s allegation of blackmail, if well founded, might have given some basis for finding that there was a significant risk of abuse. However, D was advised by solicitors, and had expressed regret for the occasion on which he made a threat to disclose allegations to the public. Moreover, C was no longer seeking to describe D’s conduct as blackmail. There was therefore no basis for the court to apprehend a real risk that D might attempt to abuse the process of the Employment Tribunal.
(e) Where litigation is heard in public, the courts treat the interests of the public in open justice as necessary and proportionate reasons for overriding what would otherwise be the rights of litigants and third parties to confidentiality and privacy.
(f) The conclusions above sufficed to refuse to continue the injunction in the terms ordered by Bean J. However, even if the Judge had been satisfied that there was a real risk that D might disclose to the Employment Tribunal irrelevant material in respect of which C had a reasonable expectation of privacy, he would still have refused an injunction in its present form (ie without the variation in the terms proposed by D) on the ground that it was neither necessary nor proportionate. The Employment Tribunal had its own rules and powers to deal with such a risk, and would be incomparably better placed to decide what was, and what was not, proper to be put before it by D.
(g) The court should be very reluctant to give to a person accused of such serious wrongdoing the opportunity to cause delay to, or place obstructions in the way of, the complainant’s attempts to seek redress for the alleged wrongdoing. There was a high public interest in litigants having their right under Art 6, which was also a right under Art 10, to commence proceedings in a tribunal unfettered by interventions from another person against whom the litigant was making allegations.
The decision contains a reiteration of themes which emerge from other privacy decisions of Tugendhat J, in particular: a readiness to give significant weight to the Convention rights of defendants; a scepticism as to the invocation by claimants of the rights of third parties from whom there is no evidence before the Court; and a reduced right of privacy in respect of relationships which take place in the workplace, in particular where the claimant is in a more senior position than the defendant. It is perhaps surprising that the Judge was prepared to accept the defendant’s expression of remorse at face value, given the unambiguous import of his earlier threats, but nevertheless the decision is a salutary reminder that allegations of blackmail made by privacy claimants are liable to be subjected to close scrutiny.
NOTE: the trial of C’s privacy action was adjourned pending the determination of D’s claim before the Employment Tribunal, BUQ v HRE  EWHC 2827 (QB).
Eversheds for C, Thomas Mansfield for D
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