FKJ v RVT & Ors

Claims should not be struck out as abusive merely because their financial value appears modest compared with the costs. The Jameel jurisdiction is exceptional and requires consideration of whether proportionate case and costs management can provide a fair adjudication. A claimant is not generally required to litigate an independent misuse of private information claim in an Employment Tribunal, which lacks jurisdiction over that tort. Civil malicious prosecution and abuse of process claims involving disputed intention, malice or purpose are generally unsuitable for summary judgment where material facts remain to be investigated. Security-for-costs or payment conditions must not stifle a genuine claim. Private communications retained or used outside their proper purpose may remain actionable even where they have been deployed in related proceedings.

The claimant, a solicitor, brought an Employment Tribunal claim alleging sex discrimination, unfair dismissal and wrongful dismissal. The claim failed, and the defendants relied on extensive WhatsApp messages between the claimant and her partner and friend.

The claimant subsequently brought a High Court claim for misuse of private information, alleging that the messages had been hacked or otherwise obtained and retained unlawfully. The defendants sought strike-out or summary judgment, relying on Jameel abuse, Henderson abuse, the implied undertaking under CPR rule 31.22, malicious prosecution, abuse of process, interim payment and payment conditions. The central issues were whether the claim was abusive, whether the counterclaims had no real prospect of success, and whether financial conditions would stifle the litigation.

1. Strike-out. The claim was not a Jameel abuse. The material comprised many thousands of highly private communications, and the claim could yield substantial damages and vindication. The Jameel jurisdiction is exceptional. If costs were disproportionate, proportionate case and costs management, rather than strike-out, was the appropriate response.
2. The claim was not a Henderson abuse. The Employment Tribunal could not determine a misuse of private information claim. The claimant was entitled to decide not to pursue exclusion of the messages as evidence, and any Employment Tribunal determination would not have prevented a later MPI claim, subject to double recovery.
3. The defendants could not rely on CPR rule 31.22. The messages were the claimant’s own documents, were not disclosed pursuant to an order, and were placed in a bundle deployed at a public hearing. If permission had been required, it would have been granted. The retention of private communications could nevertheless remain prima facie actionable; the proper course would have been to return them to the claimant or her solicitors.
4. Counterclaim. Summary judgment was refused on malicious prosecution and abuse of process. The Employment Tribunal proceedings and costs position were not finally determined. The requirements of malice and predominant improper purpose remained fact-sensitive and unsuitable for summary determination. Bringing proceedings to achieve their natural consequences, including financial or reputational consequences, was not itself an improper purpose.
5. Interim payment and payment conditions were refused. The conditions would stifle the claimant’s participation, and were unnecessary in view of her ATE insurance and the merits of the applications.
6. The court directed that costs of the waiver application be costs in the case and invited written representations on referring the Employment Tribunal’s exceptional reporting restriction for reconsideration.

The judgment records that the defendants unsuccessfully appealed an earlier decision concerning reliance on the claimant’s Part 36 offer before Collins Rice J on 25 February 2022. Permission for a further appeal was refused by Warby LJ on 13 May 2022.