ABK v KDT & Anor

In an application for interim protection of private information and against harassment, the court may continue an order where the claimant is more likely than not to establish at trial that the information should not be disclosed and that the defendants’ conduct amounts to harassment. An order should follow the applicable model form. Any omission or amendment, including an omitted undertaking, must be drawn to the judge’s attention. If proceedings are not resolved by permanent undertakings, the claimant must continue the action in accordance with the Civil Procedure Rules 1998.

The claimant sought interim protection for personal photographs, sexual text messages and other private information, together with protection from communications and attempted contact said to constitute harassment. The defendants did not attend or appear at the hearing. An interim order had been made on 26 April 2013 by HHJ Moloney QC, sitting as a High Court judge. The issue at the return hearing was whether further protection should be granted and whether the order should include the undertakings contained in the Model Interim Non Disclosure Order.

1. Further order granted. The claimant established that, at any trial, she was more likely than not to prove that the photographs and other private information ought not to be disclosed to anyone. She also established, on the evidence, that the defendants’ conduct amounted to harassment. The court therefore made a further order substantially in the terms of the order granted on 26 April 2013.
2. The court treated the threat to distribute intimate photographs and personal information, together with unwanted communications and attempts to meet the claimant, as conduct capable of engaging both privacy protection and protection from harassment. The absence of disclosure by the defendants as to how the material came into the first defendant’s control did not prevent the court from drawing an inference that the second defendant had disclosed it.
3. The earlier order had omitted the undertaking in paragraph 4 of Schedule B of the Model Order, requiring service by a specified date. The omission was not treated as sinister, particularly because the claimant’s solicitors had attempted service. Nevertheless, all undertakings in the Model Order should be included. Any addition or omission from the model form must be brought to the judge’s attention.
4. The second defendant’s email indicated that permanent undertakings might be offered. If acceptable undertakings were given, the proceedings might be settled. Otherwise, the claimant was required to proceed with the action in accordance with the Civil Procedure Rules 1998.

On 26 April 2013, HHJ Moloney QC, sitting as a High Court judge, granted an interim order until the return hearing. At the return hearing on 3 May 2013, the present court continued the protection by making a further order substantially in the same terms.