Injunction

AVB v TDD: Queen’s Bench Division: 12 May 2014

Claimant solicitor bringing action for misuse of private and confidential information and harassment, and for damages against defendant sex worker – Defendant counterclaiming for, inter alia, damages for harassment

AVB was a solicitor in his late 60s. There were three grown-up children of his marriage. In 2008, AVB separated from his wife and the divorce was finalised in 2010. TDD was a woman in her 20s. She was born in China. She came to England to study at the age of 18. She attended a prestigious college in London, choosing law as her subject.

She turned to prostitution to make a living. She kept that a secret from her parent, who lived in China and, who she said would disapprove. She also kept it a secret from the college and from some of her friends, but not all of them. She advertised her services under false names through escort agencies. The parties met in late March 2012, when AVB responded to one of the advertisements for her published by an escort agency.

Following certain courses of conduct by both parties which occurred in three stages: March to September 2012, October 2012 and March to May 2013 (see [43], [45] of the judgment) AVB applied to the court for an injunction to restrain the misuse of private and confidential information and harassment, and for damages. The information concerned, in part, the relationship between the parties and, in part, what TDD learnt about AVB’s family and acquaintances in the course of that relationship (client and sex worker).

A defence and counterclaim was served and a reply and defence to counterclaim followed. In the counterclaim, TDD alleged that AVB harassed her. She claimed damages for harassment against him, and an injunction to restrain him from further harassing her or attending at her home, or disclosing information about her sex work. TDD had signed a confidentiality agreement which purported to be a formal legal agreement between the parties.

The issues were: (i) whether TDD’s conduct had amounted to a course of conduct which amounted to harassment under the Protection from Harassment Act 1997 (the 1997 act) and whether AVB’s conduct had amounted to such a course of conduct; and (ii) whether TDD’s disclosure of private information had amounted to a misuse of private information and a breach of contract. That was information in certain Facebook messages addressed to AVB’s three children and information disclosed to AVB’s work colleagues. In the defence and counterclaim, TDD pleaded, inter alia, that the confidentiality agreement was void.

The court ruled: (1) What amounted to a course of conduct was a matter for the court to assess, since it was not always clear whether the acts complained of were to be considered as separate or as linked. A prostitute could in principle claim in harassment against a client. She would not need to rely on the fact of her being a prostitute to support her claim. The client could not rely on the mere fact of her being a prostitute as removing any likelihood of her being distressed, or as making conduct which would otherwise be oppressive and unacceptable into the opposite (see [53], [237] of the judgment).

AVB’s claim in harassment failed. There had been a long interval between the acts complained of. Although the communications addressed to AVB’s colleagues and to others, had amounted to a course of conduct, both in themselves, and together with the messages sent to AVB’s younger daughter, there had not however objectively been likely to cause distress nor in the circumstances had the conduct been oppressive and unacceptable.

In any event if it had succeeded either no damages or nominal damages would have been awarded given the extent of his provocations and the absence of any real evidence of distress. AVB’s exploitative and manipulative behaviour towards TDD had amounted to a course of conduct which was harassment within the meaning of the 1997 act (see [224], [225], [227] of the judgment).

Damages would not be awarded to TDD, as she had chosen to continue to seek to retain AVB as a client knowing how he behaved (see [240] of the judgment).

Dowson v Chief Constable of Northumbria Police [2010] All ER (D) 191 (Oct) applied; Iqbal v Dean Manson Solicitors [2013] All ER (D) 40 (Mar) considered.

(2) An important difference between a claim in breach of confidence and a claim for misuse of private information was that a claimant suing for breach of confidence might sue in respect of information relating to third parties. Claimants suing for misuse of private information sued in respect of information relating to themselves. In a claim for breach of confidence, in particular where an injunction was sought, a claimant was required to specify precisely what information was alleged to be confidential, and the nature of the breach of the duty of confidence.

Any injunction had to be capable of being framed with sufficient precision so as to enable a person injuncted to know what it was he was to be prevented from doing (see [80], [82] of the judgment)

So far as the confidentiality agreement purported to bind the parties it could not be construed as applying to communications about the terms on which they were agreeing or negotiating the provision of sexual services by her to him at a time after a dispute had arisen between them.

Nevertheless, TDD had acted in breach of her duty of confidentiality to AVB when she disclosed information relating to third parties which AVB had disclosed to her subject to the exception that disclosure of such information to those who, as the subjects of the information, already knew it could not be a breach of confidence (see [201, [202] of the judgment).

AVB was entitled to an order restraining TDD from further disclosing any of the confidential or private information already disclosed by her which related to AVB’s wife and his children, or to the sexual or financial information relating to individuals with whom he had had a sexual or a personal or professional relationship, but he was not entitled to an order restraining publication of any of the other information on which she based her complaints against himself about his conduct towards her (see [241] of the judgment).

Giggs (previously known as CTB) v News Group Newspapers Ltd [2012] All ER (D) 93 (Mar) applied; CEF Holdings Ltd v Mundey [2012] IRLR 912 considered; Hutcheson v News Group [2011] All ER (D) 172 (Jul) applied; David (Lawrence) Ltd v Ashton [1991] 1 All ER 385 considered; Thomas (PA) & Co v Mould [1968] 1 All ER 963 considered; Tournier v National Provincial and Union Bank of England [1923] All ER Rep 550 considered.

William Bennett (instructed by Stokoe Partnership) for the claimant; Alastair Wilson QC (instructed by Richard Slade and Company) for the defendant.