Kayleigh Thorne & Anor v David Protheroe-Beynon

For an interim injunction restraining alleged harassment by publication, the threshold in Human Rights Act 1998, section 12(3), applies where the essential purpose of the claim is to stop alarm and distress, even if the publications are defamatory and may damage reputation. The court must assess whether the claimant is likely to obtain a permanent injunction, while respecting freedom of expression.

Harassment by publication depends principally on the persistence, manner, tone and oppressive character of the conduct. Truth or falsity is not ordinarily determinative. Repeated, threatening and taunting publications may cross the threshold even where the defendant asserts honestly held opinions. The court must also consider damages, proportionality and the balance of convenience, and tailor relief so that legitimate communications with courts, regulators and police remain possible.

The claimants, a solicitor and barrister involved in related private family proceedings, sought continuation of interim injunctions restraining the defendant from contacting them and publishing allegations of dishonesty and professional misconduct. The allegations had been made in correspondence and TikTok videos.

The defendant relied on freedom of expression, the alleged factual basis for his concerns about the family proceedings, and the reasonableness defence under the Protection from Harassment Act 1997. The court also had to determine the appropriate threshold, the effect of confidentiality rules governing the family proceedings, and the proper scope of interim relief.

1. Outcome. The threshold for continuation of the interim injunctions was satisfied. The injunctions were continued until trial in modified terms.
2. Because the essential purpose of the claim was to stop repeated attacks causing alarm and distress, rather than to obtain relief for reputational damage, the applicable test was Human Rights Act 1998, section 12(3): the claimants had to show that they were likely, ordinarily more likely than not, to obtain a permanent prohibitory injunction. The more exacting defamation test did not apply.
3. Harassment required a persistent and deliberate course of unacceptable and oppressive conduct targeted at an individual, reaching the seriousness required for criminal liability. In publication cases, the court had to give due weight to freedom of expression and assess necessity and proportionality. The harassing quality was likely to lie principally in the manner, tone, repetition and frequency of publication rather than in the truth or falsity of the allegations.
4. The defendant’s threatening and repeated correspondence and social-media publications, including threatened further publications aimed at destroying the claimants professionally, were likely to satisfy the harassment threshold. His reliance on honestly held opinions and an analogy with online reviews was unlikely to succeed. The conduct was not equivalent to journalistic activity attracting heightened protection.
5. The defendant might rely at trial on the principle that inter partes correspondence concerning civil proceedings is immune from suit unless wholly extraneous to those proceedings. The court nevertheless treated the correspondence as relevant evidence of his attitude and likely future conduct.
6. Damages were inadequate. The balance of convenience favoured relief, which was a proportionate interference with the defendant’s Article 10 rights having regard to the claimants’ Article 8 rights. The injunction permitted communications through an agreed professional contact, complaints to regulators and police, and reporting of public hearings and judgments, subject to family-court confidentiality and reporting restrictions.
7. The court declined to prohibit future civil claims or extend the injunction to other legal professionals. Any vexatious litigation should be addressed through the calibrated civil restraint order scheme. The court also noted, without presently exercising it, its jurisdiction to restrain conduct threatening the integrity of its own process.