Wan-Bissaka & Anor v Bentley

Reference: [2020] EWHC 3640 (QB)

Court: High Court

Judge: Nicklin J

Date of judgment: 9 Nov 2020

Download: Download this judgment

Appearances: Adam Speker QC - Leading Counsel (Claimant)  Luke Browne (Claimant) 

Instructing Solicitors: Brandsmiths for the Claimants

Facts

The first claimant was Mr Aaron Wan-Bissaka, a footballer with Manchester United F.C. The second claimant was his partner.

The defendant was a former partner of the first claimant. Their relationship had ended in December 2019.

On 27 October 2020, the claimants’ first child was born. The claimants had kept the pregnancy private to their families and close friends. Nine days before the birth, on 18 October 2020, the defendant published an Instagram post, thanking those who had supported her relationship with the first claimant “for the last three years”, congratulating the claimants on the impending birth, and commenting that “[a] new life is always a blessing”. The defendant tagged the second claimant’s Instagram account in the post, meaning that it would appear on her timeline and she would be linked to its content.

The next day, on 19 October 2020, the defendant published a further post on Instagram. This consisted of a screenshot of messages between her and the first claimant.

News of the pregnancy was subsequently published in the UK media, accompanied by reporting which the claimants complained was inaccurate. In a Letter of Claim to the defendant, their solicitors sought undertakings that she would not publish any further information or material concerning her former relationship with the first claimant not already in the public domain. In an email response, the defendant asserted that she had “every right” to publish material, given the “traumatic experience both mentally & physically” that she had suffered. On 22 October 2020, she published a further, single-sentence post on Instagram: “I Will NOT Be Silenced!”

The claimants applied for an interim injunction restraining the defendant from publishing further private messages and photographs from the period of her relationship with the first claimant, and an injunction to prevent further harassment of the claimants and breaches of their privacy.

At a remote hearing on 6 November 2020, Nicklin J granted the defendant an adjournment, to enable her to obtain legal advice and representation. The defendant provided a limited undertaking, which was to expire three days later. The defendant did not attend the resumed hearing on 9 November 2020.

Issue

Whether to grant the interim injunction sought.

Held

1. The judge granted the interim injunction in part, in relation only to the first claimant’s claim, for an initial period of three weeks.

2. The causes of action relied on by the claimants were (a) misuse of private information, (b) breach of confidence, and (c) harassment:

(a) On the privacy claim, Nicklin J was satisfied that the first claimant was likely to establish at trial that publication of information relating to previous relationship communications between him and the defendant should not be allowed. He was likely to establish that he had a reasonable expectation of privacy in that information, and the defendant’s Instagram posts and email response to the Letter of Claim meant there was a credible threat she would publish more material unless restrained by injunction.

(b) Nicklin J’s view was that the claim in confidence did not add anything to the misuse of privacy claim in respect of the first claimant.

(c) On the harassment action, Nicklin J did not consider that the claimants were likely to prevail at trial and secure an injunction restraining further acts of alleged harassment. The judge was not satisfied that the defendant’s posts were so oppressive and unacceptable as to sustain criminal liability under s.2, Protection From Harassment Act 1997 – the required threshold.

Comment

A case involving a straightforward application of the principle in PJS v News Group Newspapers Ltd [2016] UKSC 26, that there is not usually any public interest justification for disclosing purely privacy sexual encounters, and a useful authority for those advising on whether conduct alleged to be harassment is sufficiently grave to meet the threshold at which the court will grant relief.