Higinbotham (formerly BWK) v Teekhungam & Anor

A claim may be struck out as an abuse of process where it is pursued for harassment or another improper collateral purpose, or where litigation would yield no real or substantial benefit proportionate to its cost. The Jameel jurisdiction is not confined to defamation and may apply to claims under the Data Protection Act 1998. A claim for misuse of private information requires a reasonable expectation of privacy in the information concerned. Information comprehensively disclosed through public litigation will ordinarily no longer satisfy that requirement, even if publication to particular acquaintances is not proved. Confidentiality is likewise lost. The court may also dismiss claims with no real prospect of success and refuse an injunction where there is no credible threat of repetition.

The claimant appealed against Master Yoxall’s decision of 23 October 2017 striking out as an abuse of process claims for misuse of private information, breach of confidence and breaches of the Data Protection Act 1998. The claim concerned a Facebook profile said to disclose the claimant’s relationship with the first defendant, his paternity of their three children and associated personal information.

The defendants supported the strike-out application under CPR Part 3.4 and sought summary judgment. Permission to appeal was granted. The central issues were whether the claim had a real prospect of success, whether it was abusive because it served an improper or disproportionate purpose, and whether the claimant could obtain any meaningful injunction or damages.

1. Appeal dismissed. The claim was an abuse of process and the breach of confidence and misuse of private information claims were also dismissed under CPR Part 24 as having no real prospect of success. The court held that the Jameel jurisdiction could apply to a data protection claim, following Vidal-Hall v Google Inc and Sullivan v Bristol Film Studios Ltd.
2. The court’s inherent jurisdiction to prevent abuse is broad and is not confined to fixed categories. Proceedings brought to harass or oppress, or to obtain a collateral advantage unavailable through properly conducted litigation, may be abusive. Motive alone is insufficient, but the court assesses the purpose and effect of the proceedings objectively. The claimant’s conduct, delay, the absence of meaningful harm, the public availability of the information and the disproportion between costs and any benefit established both improper purpose and Jameel abuse.
3. The claim had no real prospect of success. The claimant had no reasonable expectation of privacy in information about his relationship, paternity and family life. The information had already been placed in the public domain through the Thai and US proceedings, including disclosure in open court. The court distinguished PJS v News Group Newspapers Ltd, because there the claimant had sought to preserve confidentiality, whereas here control had already been deliberately relinquished. The information no longer had the necessary degree of confidence for a breach of confidence claim.
4. An injunction was practically and legally unavailable. The profile had been removed years earlier, there was no credible threat of repetition, and a public-domain exception would largely negate any order. A wide injunction would unjustifiably interfere with the defendants’ Convention rights and the children’s autonomy and dignity.
5. Even assuming liability, damages would be trivial. Publication had been extremely limited, the information was anodyne, and the claimant provided no evidence of distress or other harm. The anonymity order was discharged because the justification for it had disappeared and open justice required that result, notwithstanding the possible effect of publicity on the children.

1. High Court (Queen’s Bench Division) — The appeal from Master Yoxall’s order of 23 October 2017 was dismissed. The claim remained struck out as an abuse of process, and the breach of confidence and misuse of private information claims were dismissed under CPR Part 24.