BUQ v HRE

Findings of fact by a competent tribunal may bind the parties in later privacy proceedings and leave a defendant with no realistic prospect of defending the claim. Private sexual information generally attracts a reasonable expectation of privacy, whether true or false, and infidelity alone does not remove that protection. In balancing Articles 8 and 10, a proven blackmailer’s expressive rights may receive little weight, while third-party privacy and family-life rights may reinforce the claimant’s position. Dishonesty by a claimant does not ordinarily justify withholding an otherwise merited remedy. Strike-out or refusal of relief for abuse is reserved for very exceptional cases and must be just and proportionate. Contempt and appropriate costs orders will normally provide proportionate sanctions.

The claimant sought summary judgment and a permanent injunction in an action for misuse of private information and breach of confidence. The defendant had threatened disclosure of private sexual messages and photographs and had defended the claim on the basis that the information was not private, involved unlawful or abusive conduct, and had been the subject of untruthful evidence by the claimant.

Employment Tribunal proceedings between the parties were dismissed, with findings that the defendant had not been sexually harassed, had given unreliable evidence, and had pursued blackmail. Those findings were relied on as binding. The defendant separately sought committal proceedings, discharge of the injunction and costs. The central issues were whether the defendant had a real prospect of defending the claim, whether alleged dishonesty could justify withholding an injunction, and how his committal application should proceed.

1. Summary judgment and injunction. The claimant was entitled to summary judgment. The Employment Tribunal’s findings left the defendant with no realistic prospect of defending the claim on its merits. The information concerned sexual activity between consenting adults and was a prime candidate for protection. Its truth or falsity was generally irrelevant to the existence of a reasonable expectation of privacy, particularly where true and false information were mixed. Infidelity alone did not deprive the information of its private character.
2. The Article 8 and Article 10 rights engaged were to be given equal weight in principle and balanced by intense scrutiny, necessity and proportionality. The defendant’s status as a blackmailer substantially reduced the weight of his Article 10 claim. The absence of any significant public interest in disclosure, together with the privacy and family-life rights of third parties, made the balance decisively favour protection. The evidence of blackmail also established a sufficient risk of publication to justify a permanent injunction.
3. The alleged lies concerned details of the claimant’s sexual life and were not central to the merits. Applying Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004, it would not be just or proportionate to strike out the claim or withhold an otherwise merited remedy. Contempt proceedings and costs consequences were ordinarily sufficient sanctions. The case was distinguishable from YXB v TNO [2015] EWHC 826 (QB).
4. The defendant’s committal application was procedurally defective but curable. Alleged false statements verified by statements of truth engage contempt procedure under CPR 32.14, rather than perjury. Permission was required under Part 81. The defendant was permitted to amend his application and file compliant affidavit evidence. The committal issue and costs were adjourned, with liberty to restore. The injunction could be varied in light of any proved contempt, but not discharged on that basis.