April 23, 2018

The claimant, NPV, was a successful, married businessman. Until late last year, the first defendant, QEL, was an employee of a business. In early 2017, she met NPV in the course of her employment. The two subsequently met socially for a drink. By doing so, QEL broke rules prohibiting contact between employees and customers. QEL was suspended and became subject to a disciplinary process. NPV supported QEL through this process and a sexual relationship developed between them.

Whilst the disciplinary process was still ongoing, QEL resigned as an employee. NPV gave her some financial support. Increasingly, however, QEL became more demanding and told NPV that, as he was partly to blame for her losing her job, he ought to “help” her financially. NPV initially refused what he saw as demands for money.

NPV then received a telephone call from someone claiming to be a journalist who said that he had information about his affair with QEL and that he was preparing to publish an article about it. NPV did not believe that the person was in fact a journalist; rather, he thought the caller was someone connected with QEL who was being used by her to exert pressure on him to meet her demands.

Matters developed and QEL demanded a very substantial sum from NPV under the threat of exposing NPV. NPV gave in to these demands and paid the sum requested in return for QEL signing a strict confidentiality agreement.

NPV then received a telephone call from ZED, the second defendant, in which ZED said that he worked for a media agency, which he would not identify, and that he was working on an article about powerful people who abused their positions and that he intended to cite NPV as an example. ZED claimed not to be working with QEL, but it was clear that ZED had in his possession documents that could only have come from QEL.

Various meetings followed between ZED and representatives of NPV, which were recorded. Essentially, ZED told NPV’s representatives that for a certain sum of money “this can all go away”. The parties settled on a sum of £75,000 to be paid to ZED at a meeting to take place on 28 March 2018. In the meantime, NPV applied to the court for an interim injunction for misuse of private information and harassment. NPV’s intention was to serve any injunction granted by the court on the ZED at this meeting, rather than hand over the money.

Considering the likelihood of success (as required under s 12(3) of the Human Rights Act 1998) in the misuse of private information claim, Mr Justice Nicklin was satisfied that NPV was likely to succeed at trial in showing that publication of the Information should not be allowed:

• the information related to a sexual relationship, and included messages exchanged between NPV and QEL. NPV was likely to establish that he had a reasonable expectation of privacy in this information;
• there was no public interest justification for disclosing purely private sexual encounters;
• the blackmail element strengthened the claim, reducing the weight attached to any freedom of expression argument and increasing the weight of the arguments in favour of restraining publication; and
• in carrying out the ultimate balancing test, Nicklin J said that NPV’s Article 8 rights were likely to prevail and a final injunction granted.

As for the claim for harassment, Nicklin J was satisfied that, insofar as the injunction sought interfered with the right of freedom of expression, NPV was likely to show that further acts by QEL and ZED of communicating with or about NPV should not be allowed:

• NPV was likely to show that ZED’s demands, which NPV alleged amounted to blackmail, were oppressive and unacceptable, thereby constituting harassment of NPV;
• ZED was unlikely to succeed in showing that he had a defence under s 1(3) of the Protection From Harassment Act 1997 that, “in the particular circumstances the pursuit of the course of conduct was reasonable”. On the contrary, if this was blackmail, it would amount to harassment; and
• NPV was likely to show that QEL was a joint tortfeasor with ZED and thereby also liable for the acts of ZED.

Accordingly, Nicklin J granted the interim injunction sought.

Interestingly, Nicklin J also permitted service of the injunction application and order on ZED by text message. Essentially, he allowed service by “the only practical alternative means presently available to [NPV]”. (NPV v QEL [2018] EWHC 703 (QB) 28 March 2018 — to read the judgment in full, click here).