BVG v LAR

Summary judgment may be granted where the defendant has no real prospect of successfully defending the claim and there is no other compelling reason for a trial. The court must adopt a realistic approach, while avoiding a mini-trial.

A claim for misuse of private information requires a two-stage analysis: whether the claimant has a reasonable expectation of privacy, followed by a balance between the competing Convention rights. Sexual life and activities ordinarily engage Article 8. Repeated threats to publish private information may constitute harassment where the conduct is oppressive and unacceptable and no reasonable-conduct defence is available.

The claimant brought proceedings based on misuse of private information and harassment. An interim injunction had previously been granted by Murray J. in BVG v LAR [2019] EWHC 2388 (QBD).

The claimant applied to strike out the defence or, alternatively, for summary judgment and a permanent injunction. The defendant disputed the allegations, including the allegation of blackmail, and relied on payments allegedly made for services or repayment of loans. The principal issues were whether the defence disclosed any realistic prospect of success and whether there was any compelling reason for a trial.

1. Disposition. Summary judgment was granted for the claimant and a permanent injunction was ordered. The court did not need to determine finally whether the defendant had blackmailed the claimant. Even leaving that issue aside, the defence to misuse of private information and harassment had no realistic prospect of success and there was no compelling reason for a trial.
2. Strike out. The defence failed to comply with the pleading requirements in Civil Procedure Rules 1998, including the requirements to address each allegation, give grounds for denials and contain a statement of truth. However, because the power to strike out was discretionary and the defendant was acting in person, strike out for form alone would have been disproportionate. An opportunity to amend would ordinarily have been more proportionate.
3. Summary judgment. The question under CPR Part 24 was whether there was a real prospect of successfully defending the claim, not whether the defence was merely arguable or whether the claimant had already proved the case. The court had to avoid a mini-trial but take a realistic view of whether the evidence might materially change after disclosure or cross-examination.
4. Private information. The court applied the two-stage approach identified in Campbell v MGN [2004] 2 AC 457. The claimant had a reasonable expectation of privacy in information concerning his sexual life. The competing Article 8 and Article 10 rights were then balanced, and the balance came firmly in the claimant’s favour.
5. Harassment. Under the Protection from Harassment Act 1997, harassment requires a course of conduct which amounts to harassment and which the defendant knows or ought to know has that character. The conduct must be oppressive and unacceptable, with sufficient gravity to sustain criminal liability. Threatened publication can constitute harassment. The defendant had no realistic prospect of establishing that the conduct was reasonable in the particular circumstances.
6. The defendant’s explanations for the payments lacked a reasonable evidential basis or sufficient particulars. His subsequent conduct reinforced the conclusion that the claims had no realistic prospect of successful defence.

The judgment records an earlier interim injunction granted by the High Court on 6 September 2019, with reasons handed down on 11 September 2019 in BVG v LAR [2019] EWHC 2388 (QBD). The present judgment granted summary judgment and a permanent injunction.