Kerner v WX & Anor

The court may continue an injunction protecting individuals from harassment where the evidence shows a continuing risk, particularly where a child is affected. Incidental protection afforded to another person does not require variation or discharge if the order remains justified for the protected persons. Under Civil Procedure Rules 1998, r 31.17 and s 34 of the Senior Courts Act 1981, the court may order a non-party to disclose information identifying an unknown defendant. The provisions should not be construed narrowly so as to exclude identification of a party. The applicant must still establish relevance, likely assistance, and necessity, while the court balances privacy and other rights.

The claimant sought directions concerning an interim injunction restraining two unidentified persons from harassing her and her nine-year-old son at their home. The injunction had previously been continued pending identification of the defendants. The claimant also sought an order requiring the DVLA to disclose documents identifying the registered keeper of a vehicle allegedly used by one defendant.

The defendants did not appear. The DVLA had been served and did not oppose the order. The issues were whether the injunction remained justified, whether incidental protection of the claimant’s husband affected that question, and whether the court had power under r 31.17 and s 34 of the Senior Courts Act 1981 to order disclosure for the purpose of identifying an unknown defendant.

1. Continuation of injunction. The injunction remained justified. The evidence showed that the husband’s case was likely to continue attracting intermittent media attention and that, without protection, harassment of the claimant and her son might recur. The child’s age and the impact of the earlier conduct meant that the evidential threshold for continued protection was relatively low. The order was neither unreasonable nor oppressive.
2. The claimant’s husband incidentally benefited from restrictions on photography, loitering and pursuit when he was at home or with the claimant or their son. That incidental benefit did not justify varying or discharging the order while protection for the claimant and child remained necessary. The order did not otherwise prevent legitimate photography or filming of the husband away from them.
3. Disclosure jurisdiction. The court rejected a narrow construction of s 34(2) of the Senior Courts Act 1981 and r 31.17(3) of the Civil Procedure Rules 1998. An issue arising out of a claim may include the identity of an unknown defendant. Documents identifying the registered keeper were relevant to that issue and could support the claimant’s case by advancing identification of the defendant.
4. The word likely in r 31.17(3)(a) meant may well, rather than probably will, following Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182. The necessity requirement was satisfied because the claim could not be fairly disposed of without identifying the defendants, and disclosure was likely to save time and costs.
5. The court had to consider the Article 8 rights of persons whose information might be disclosed and conduct a careful balancing exercise, as illustrated by Flood v Times Newspapers Ltd [2009] EWHC 411 (QB). That balance favoured disclosure in this case. The court ordered the DVLA to disclose documents sufficient to provide the registered keeper’s identity and known contact details.