Court: Queen's Bench Division
Judge: Sharp J
Date of judgment: 22 Mar 2011
Privacy - Breach of Confidence - Misuse of Private Information - Derogations from Open Justice - Whether the hearing should take place in private - whether anonymity should be continued
Adam Speker QC (Claimant)
Instructing Solicitors: McGrigors for RJA; D in person
C and D, neither of whom are public figures, were in a relationship. It was common ground that in the course of the relationship D took photographs of C; that the photographs were stored on D’s computer and the photographs were taken for private purposes. It was also not disputed that when the relationship ended D made threats to post the photographs online.
Some of the photographs were published online on two websites. C sought an injunction without notice on 25 February 2011. Sharp J heard the matter in private; read the evidence of C and granted the injunction. The Court considered that the photographs were private and there was evidence that their photographs were placed online for revenge and other unwarranted reasons. The Court held that C was likely to succeed in establishing a reasonable expectation of privacy in respect of the information and that publication should not be allowed. The Judge also held that it was appropriate for the application to have been made without notice; for the hearing to take place in private and for anonymity to be granted to the parties until the next hearing.
The matter came back before King J. D attended in person. D denied publishing any photographs online and gave undertakings until trial not to publish any photographs; not to take any steps in respect of a website that D had registered in C’s name; not to harass C by communicating with C other than through C’s solicitor and to allow an expert instructed on behalf of C to have access to computer and camera equipment. The anonymity order was extended.
The matter came back before the court because C contended that D had failed to comply with the undertakings given in front of King J. C also produced expert evidence appearing to demonstrate that the photographs had been uploaded onto the internet from a computer registered to D at D’s home address. C sought that D should serve a further witness statement providing truthful information about computer equipment in D’s possession; for D to adhere to the undertakings given on the last occasion and for an order to have access to D’s computer so that an expert could destroy any images and preserve them by other means for the purpose of the litigation.
(1) Whether D should serve a further WS providing information about computer and camera equipment in D’s possession and in the possession of others identified in D’s first WS;
(2) Whether an Order should be made to allow C’s solicitor and an expert into D’s home to properly inspect D’s computer and camera equipment and ensure that the images are removed;
(3) Whether anonymity should be extended.
(1) C was entitled to the order. There was strong evidence that D had not hitherto provided full and frank information as D had undertaken to do before King J. There was a strong inference that D had computer equipment in D’s possession and in respect of equipment that D said had been stolen or given away D should provide further information;
(2) C was entitled to the delivery up, destruction and search orders sought. The circumstances were unusual. D did not claim any legal entitlement to the photographs that would entitle D to keep them and the evidence before the court showed, to put it at its lowest, that contrary to claims made by D including in person, that some of the photographs were uploaded from a computer registered to D which was in the flat in which D lives alone. Moreover, an expert was needed to remove them and D had expressly requested before King J that the exercise took place at D’s home: Tchenguiz v Imerman; Imerman v Imerman  EWCA Civ 908 considered.
(3) C has said in terms that C’s intention is to pursue the matter to trial in order to obtain permanent relief and protection of orders following final judgment. Until that time the parties were entitled to anonymity and it was proper for the hearing to take place in private. C is likely to establish at trial the unlawful conduct complained about: JIH v News Group Newspapers  EWCA Civ 42 followed.
The information in this case report is derived from the Judge’s public judgment handed down ex tempore on 22 March 2011. There is an order in place not to publish any information save for that set out in the public judgment.