The High Court has recently ordered an injunction against an unknown third party and provided for alternative service by text message.
In the case of NPV v QEL and ZED, all parties have been anonymised to protect their identities, and in particular NPV, a successful businessman.
Facts of the case
NPV met QEL, a customer service professional through her employment. NPV was a customer of QEL’s employer. In late 2017, NVL and QEL met socially for a drink. Socialising with customers was prohibited by QEL’s employers. She was suspended and a disciplinary process was commenced. During the disciplinary process QEL resigned from her employment.
The friendship between NPV and QEL grew from friendship to an affair. NPV provided QEL with financial support. It was NPV’s case that QEL started to demand more financial support. Her claim was that as NPV should support her financially as he was partly to blame for her losing her job.
NPV’s case was that QEL’s demands became tantamount to blackmail. She had threatened that NPV should pay her, or “he would risk the consequences.”
Ten days later, a third party contacted NPV. The third party claimed to be a journalist who had information about the affair, and that he was going to publish an article about it. By this time, NPV was sure that QEL was serious about her threats and paid her a large sum of money in return for signing a confidentiality agreement.
In March 2018, the second defendant, ZED became involved. He contacted NPV and, giving only his first name, advised NPV that he was going to refer to him in an article regarding powerful people who abuse their position. ZED requested a meeting with NPV. NPV agreed, but sent two people on his behalf. Several meetings took place with ZED. These were recorded by NPV’s representatives.
The recordings of the conversations showed that information had come into his possession from QEL. ZED also confirmed that QEL intended to bring an action against her employers in the employment tribunal, which would lead to NPV being named in the proceedings. ZED was asked by NPV’s representatives whether “this can all go away” for a certain sum of money. ZED confirmed this.
In later meetings, ZED explained that he was seeking a payment of up to £150,000 in order not to release details of the affair to the media. In the recording, ZED can be heard defending himself, stating that he was not attempting to extort money from NPV. It is also of note that, in the recording, ZED attempted to distance himself from QEL. ZED eventually agreed to a payment of £75,000. Payment was arranged to be made at a meeting at a future date, which gave NPV the chance to apply for an injunction.
Nicklin J’s judgment
Nicklin J heard the application for an interim non–disclosure and harassment injunction on 28 March 2018. He granted NPV the right for the application to be heard in private. He also granted anonymity to all parties and restricted access to the court file.
Nicklin J granted the injunction for non-disclosure on the ground that NPV was likely to succeed at trial in showing that publication of the information should not be allowed. In his reasoning he stated:
“… the information relates to a sexual relationship, and includes messages exchanged between the Claimant and the First Defendant. The Claimant is likely to establish that he has a reasonable expectation of privacy in this information…
… There is not usually any public interest justification for disclosing purely private sexual encounters, even if they involve adultery…
The blackmail element strengthens the claim. Such conduct considerably reduces the weight to be attached to any freedom of expression argument.”
In relation to the claim for harassment, he again granted an injunction, confirming:
“I am satisfied that the Claimant is likely to show that the acts of the Second Defendant in communicating what are alleged to be blackmail demands… is a course of conduct that amounts to harassment.
The second defendant is unlikely to succeed in showing he has a defence under s1(3) PFHA that “in the particular circumstances the pursuit of conduct was reasonable.”
He also confirmed that QEL was a joint tortfeasor with ZED, and was liable for the acts of ZED.
Nicklin J also permitted NPV to alternatively serve on ZED by text message. This was granted on the understanding that there would be an attempt to serve ZED at the meeting where he was expecting to receive £75,000.
Analysis
It should be noted that this matter was decided on one party’s evidence. Neither QEL or ZED had the opportunity to put forward their side of the story. Nicklin J makes this comment within his judgment. However, the evidence on investigation does appear to be damning. There was certainly a course of action that constituted harassment under the Protection from Harassment Act 1997.
The interesting point within the judgment is that NPV was granted alternative service of the injunction order by way of text message. As NPV did not have any other identifying details other than his first name and a mobile telephone number, it was thought appropriate, following an application under CPR 6.15 and CPR 6.27, to grant alternative service. Again, this shows a growing understanding in the courts of the use of technology.
Points for practitioners
This case will be helpful when arguing an application for alternative service. Nicklin J stated:
“I have allowed service by the only practical alternative means presently available to the Claimant.”
The court clearly took a sensible, practical approach to the issue. The requirement for alternative means of service should be thoroughly explained in the witness statement accompanying the application, together with clear details of the method actually available to a claimant.
