WXY v Gewanter & Ors  EWHC 1601 (QB)
The Claimant brought an action for breach of confidence, misuse of private information and harassment against the three defendants. In July 2011, the trial against the First and Second Defendants was adjourned on the grounds of the Second Defendant’s ill-health, but proceeded against the Third Defendant. Judgment against the Third Defendant was given on 6th March 2012 here.
An interim injunction had been in place against the Third Defendant since the action was first commenced, and by the judgment of 6th March 2012 was to be made permanent. Following dismissal of an application by the Third Defendant to set aside the judgment, there were remaining questions about the appropriate terms of this final injunctive relief against him, in particular, whether certain confidential information – including the Claimant’s identity – had entered the public domain since the conclusion of the trial so that an injunction was no longer necessary or appropriate.
Outcome and Reasoning
Around February 2012, the Third Defendant gave evidence to a Parliamentary Committee which was then published on its website. The evidence related to matters covered by the injunction in these proceedings. The Third Defendant sought to argue that this publication had led to worldwide media coverage of the confidential information, both in print and online, so that an injunction was inappropriate.
Slade J stated that the court could only act on the evidence before it, and that the Third Defendant had failed to produce a promised bundle of publications of the confidential information. He had further failed to produce evidence of the number of ‘hits’ on the website publications he sought to rely on.
Of those publications he did produce, or which the Claimant’s solicitors were able to find by their own searches, most publications did not give sufficient information about the Claimant or other relevant parties involved in the litigation to allow the Claimant to be identified by the reader. Although the Third Defendant produced a couple of website postings which purported to name the Claimant, the evidence on how far down these websites appeared in search results, and their general inaccessibility, was such that they were unlikely to have come to the attention of many people. Thus on the evidence the Claimant’s name was not associated with the coverage the story received in the minds of a sufficient number of people so as to render an injunction restraining publication of the allegations or confidential information futile.
The judge also noted that:
(i) Even if the Claimant had become known to a few who accessed certain websites, allowing publication of her name in connection with the material could reach a different or wider audience. This was not a case like Giggs v NGN where the information was so widely known that an injunction would be a brutum fulmen (par 97).
(ii) The majority of publications occurred around the time of the material going on the Parliamentary website, and these had tailed off by mid-March. There was a utility in an injunction in these circumstances as it might prevent the re-entry of the story into newspapers or the internet (par 98).
(iii) In her March judgment Slade J had concluded that the Third Defendant’s right to publicise the allegations and confidential information was of less weight than the Claimant’s Article 8 rights, and no evidence or argument had been produced which changed that (par 99).
(iv) Part of the claim was under the Protection from Harassment Act 1997, which allows for a grant of an injunction. The fact that the material which the defendant has or threatens to publicise may be in the public domain is not a defence to an application for such an injunction. Harassment injunctions regularly prohibit a defendant from doing that which may be lawfully done by anybody else (par 100).
In conclusion, the relevant material had not entered the public domain to the extent that injunctive relief would be fruitless.
Slade J also ruled on a number of minor disputes about the terms of the final order..
Aidan Eardley, instructed by Archerfield Partners LLP, acted for the Claimant.
The judgment is available here.