Khan (formerly JMO) v Khan (formerly KTA)

An interim injunction restraining speech in a harassment claim ordinarily requires proof that the claimant will probably succeed at trial. Harassment requires persistent, deliberate, unreasonable and oppressive conduct of sufficient gravity to sustain criminal liability.

Where the complaint concerns arguably true statements, the harassment must ordinarily arise from the manner of publication rather than its content. The court must scrutinise whether a claimant is using harassment to circumvent the rule against interim restraint of a publication which the defendant intends to justify.

Any injunction must define the prohibited conduct clearly and interfere with expression no further than necessary. Anonymity is justified only where necessary for the administration of justice after balancing open justice against competing Convention rights.

The claimant sought an interim injunction under the Protection from Harassment Act 1997. He alleged that his brother had harassed him through numerous emails sent over nine months to him, business associates and persons connected with Spotify. The emails concerned the claimant’s spent convictions, public statements and alleged disclosure obligations relating to Spotify.

The defendant maintained that his allegations were true, that he was raising genuine investor-protection concerns and that the claim was designed principally to protect the claimant’s reputation. The court had to decide whether the claimant was likely to establish harassment at trial, whether the requested restraint was compatible with freedom of expression, and whether the parties should remain anonymous.

1. Interim injunction refused. Because the requested relief would restrain expression before trial, section 12(3) of the Human Rights Act 1998 required the claimant ordinarily to show that success at trial was more likely than not. On the available evidence he had not done so.
2. The emails, individually and collectively, had not crossed the boundary from unattractive or unreasonable conduct to conduct which was oppressive and unacceptable to the degree required for harassment. The claimant’s distress arose principally from the content of communications to third parties and their possible reputational effect, rather than their manner or frequency. Many emails were addressed to others, the recipients formed a limited and deliberate group, and the allegations remained broadly consistent.
3. Some language suggested threats, but the alleged threats lacked clarity and consistency and had not been acted upon. The evidence did not establish blackmail. The defendant also had an arguable defence that pursuing the course of conduct was reasonable, particularly because his substantive concerns appeared to have received no answer. That defence remained for trial.
4. In a speech-based harassment claim involving statements which the defendant maintains are true, the court must look for additional oppression, persistence or unpleasantness in the manner of publication. A claimant cannot use harassment as an easier means of obtaining restraint where the real gist of the application is protection from reputational harm. Here the claim’s gravamen was defamation, so the Bonnard v Perryman rule provided an additional ground for refusing relief.
5. The proposed injunction was exceptionally broad and disproportionate. It would have prevented almost any communication about the claimant. Its general prohibition on conduct amounting to harassment was also objectionable because an injunction enforceable by imprisonment must state clearly and unambiguously what conduct is forbidden.
6. Anonymity discharged. Harassment proceedings do not ordinarily justify blanket anonymity merely because private information may be mentioned. Identification would not frustrate the administration of justice, and any genuinely private material could be protected by narrower measures. The earlier anonymity and reporting-restriction provisions were therefore discharged.

This was a first-instance interim application. Master Yoxall had previously permitted the parties to be anonymised and made related restrictions on 7 February 2018. The High Court refused the interim injunction and discharged paragraphs 1–6 of that earlier order.