AVB v TDD

A course of conduct under the Protection from Harassment Act 1997 must be assessed as a whole. The court must consider the objective likelihood of alarm or distress and whether the conduct is oppressive and unacceptable in its actual social and relational context. Conduct which would ordinarily be oppressive may not satisfy the statutory test where it is a reaction to the claimant’s own exploitative and provocative behaviour. A client who refuses to pay a sex worker cannot use contractual or equitable confidentiality obligations to prevent reasonable complaints about the alleged non-payment or exploitation. Confidential information concerning third parties remains protectable. A sex worker may in principle bring a harassment claim against a client.

The claimant, a solicitor, sought injunctions and damages for misuse of private information, breach of confidence, breach of contract and harassment. The defendant, a sex worker who had been his client, counterclaimed for harassment. Their relationship involved sexual services, disputed payments, legal assistance and repeated hostile communications.

The claimant complained of disclosures to his professional colleagues, family members and others, including information obtained from memory sticks. The defendant admitted that some communications, including those sent to the claimant’s daughter, were wrongful. The central issues were whether the communications formed courses of conduct amounting to harassment, whether the information was private or confidential, and whether a confidentiality agreement was enforceable.

1. AVB’s claims. The events of June 2012 were separate from those of April and May 2013 and did not form one course of conduct. The communications in May 2013 were sufficiently connected in time and circumstances to constitute a course of conduct, and were targeted at AVB. However, the statutory test had to be applied in the context of the parties’ relationship. AVB had repeatedly revived the relationship and had provoked and manipulated TDD. His evidence showed embarrassment rather than significant distress. The conduct was therefore not objectively likely to cause distress to him and was not oppressive towards him in the relevant context. His harassment claim was dismissed.
2. The fact of the relationship and TDD’s complaints about unpaid remuneration were not protected from disclosure by privacy or confidence. The principle in Tournier v National Provincial limited confidentiality where disclosure was reasonably necessary to protect the discloser’s interests against the other party. A sex worker was not barred from making complaints about alleged non-payment or exploitation.
3. The confidentiality agreement could not be construed as preventing complaints about disputed terms for sexual services. It was also unenforceable on public-policy grounds because it purported to prevent a prostitute complaining of alleged exploitation and supplied a basis for threats of litigation. TDD nevertheless breached the equitable duty of confidence by disclosing information about AVB’s wife, children and other third parties, subject to disclosure to persons who already knew the information.
4. AVB had a reasonable expectation of privacy in some private images and information concerning family members and other relationships. There was a real, though not high, risk of further disclosure. An injunction was granted in respect of the confidential or private information already identified. Damages were refused because AVB had suffered embarrassment but no real distress.
5. TDD’s counterclaim. A prostitute could in principle claim harassment against a client. AVB’s exploitative and manipulative conduct, including threats and conduct outside TDD’s flat, amounted to harassment. The counterclaim was upheld, but no damages or injunction were awarded because the distress was limited and there was no sufficient continuing risk.