Sir David Eady handed down his last trial judgment last week, AXB x BXA  EWHC 588 (QB) , The case concerned an extra-marital relationship between a man of considerable wealth and his “mistress” which took place between July 2014 and August 2016. The Judge referred to the case as an “unhappy and intensely personal saga”.
The claimant was successful in actions in fraud, harassment and misuse of private information. In coming to his decision that the Claimant had been “taken for a ride”, the Judge stated emphatically that “not to put too fine a point on it, he [the Claimant] had been defrauded and blackmailed.”
The Judge awarded £124,655 in damages (£119,655 for the fraud claims and £5,000 for harassment) and an injunction to prevent further harassment of the Claimant and his family.
During the course of the parties’ relationship the Defendant made two false claims of pregnancy and a claim that she had contracted a sexually transmitted disease from the Claimant. The Claimant paid her large sums of money. In around August 2016 the Claimant realised that he had been defrauded by the Defendant throughout the relationship. Further harassing conduct occurred in August and September 2016, and the claim was eventually issued in October 2016.
The Claimant made an application for anonymity and the parties were anonymised prior to the issue of proceedings on the basis that publicity would defeat the object of the hearing, and the matters concerned involved confidential information and publicity would damage that confidentiality (CPR 39.2(3)(a), (c) and (g)).
At the time of issue, the Defendant was living in London and represented by solicitors and counsel. The Defendant denied liability and the Claimant’s entitlement for relief, and asserted that the claim is an abuse of process. The Defendants’ solicitors came off the record in February 2017. Throughout 2017, the Defendant had been using the services of an American lawyer with a view to discouraging the continuance of the proceedings. Despite this, The Judge recognised that the American lawyer had provided no assistance to the Defendant “in progressing these proceedings, whether by taking part in the pre-trial hearings, or attending the trial itself.”
On the contrary, in December 2017 the Defendant in fact launched proceedings of her own. At trial, the Judge recognised that the foreign proceedings dealt with matters which could have been raised by way of counterclaim in these proceedings.
The Defendant did not attend the trial. The Judge proceeded with trial under CPR 39.3(1): in the absence of a defendant, a claimant must still prove his claim at trial (CPR 39 PD 2.2(1)(a)). The date of the trial was notified to the Defendant more than six months prior to the trial date, and the Claimant himself had made an offer to pay the Defendant’s travel expenses to enable her to attend trial. These offers went unanswered until the second day of the trial when the Defendant indicated, as Sir David Eady puts it, that “she was prepared (too late) to accept it.”
The trial took place in private because “an open court hearing would plainly have defeated the object of the exercise” and the privacy interests of the Claimant’s wife and young children had to be taken into account. However, the judgment (save for minor redactions) is public.
On the Claimant’s action in fraud, the Judge ruled that the representations made by the Defendant to the Claimant were “blatantly false representations”. He noted that a witness’ veracity can in some instances be tested by reference to the documents which can “often speak for themselves”, citing BXA’s acts in sending a fake pregnancy photograph as “a good example” of this principle. In coming to his decision that the Claimant had been “taken for a ride” Sir David Eady commented:
“I too would accordingly hold that there is no policy reason why this Claimant should not sue for deceit if he is correct in thinking that the Defendant was deliberately attempting to mislead him on the matter of pregnancy.”
The Judge upheld the Claimant’s action in fraud with all bar two sums being recoverable damages for deceit. Sir David Eady commented that it is “not necessary to show in addition a motive of personal gain on the part of the defendant”, only that the Defendant intended the Claimant to act on the representation and that she “must have known it to be false at the time(s) it was made.”
The Judge ruled that there were particular instances of unreasonable conduct “such as taking his passport and sending the scans and other private material to his office (where she knew that it would be seen by others).”
The Judge importantly concluded that the involvement of third parties and the threats (i.e. of wider publication of private information and of bringing a false claim of assault) “are elements in such a course of conduct that could go towards harassment”. As he put it: “I can also include the false claims pleaded under deceit and the communications relied upon as infringements…are all part of a consistent pattern of harassing behaviour which falls outside the notion of “reasonable”.”
Misuse of Private Information
The Judge recognised that “in view of the Defendant’s threats to the Claimants with “the tabloids” and of her regular demands for large sums of money, I cannot conclude otherwise than that she represents a continuing risk to him, and to his wife and family, of further harassment, intrusion and infringements of privacy.”
He ruled that there was no reason to regard the harassing as “in some way out of character, or as explicable on the basis of emotional turmoil arising from the pregnancy.” In fact, it was stated to be “part of a consistent pattern” and further “serves to confirm that the Claimant is in need of such protection as the court can still afford him.”
Private hearing and anonymity
The Judge emphasised that the information in this case plainly concerns sexual activity between two people, taking place in private. In explaining the absence of any legitimate public interest in such subject-matter, the Judge stated: “it would only be a matter of prurient gossip, which it is possible that the Defendant and others would be able to turn to financial advantage, but that is naturally quite a different matter from genuine public interest.”
The Judge ruled that the Claimant’s false claims of pregnancy and threats to misuse private information were part of the course of conduct constituting harassment. Indeed, not dissimilar to Lord Mance’s emphasis on the Claimant’s family life in the Supreme Court case of PJS v News Group Newspapers Ltd in the context of privacy claims, the judgment in AXB v BXA serves to illustrate that the Court will continue to place great emphasis when the Claimant’s family members, in particular spouses and young children, are also plainly adversely affected by both the Defendant’s course of conduct and the publicity that arises from a trial or judgment.
The pre-action anonymity order obtained by the Claimant allowed the claim to be issued with the identities of the parties anonymised and for access to certain court documents by non-parties to be restricted. Derogations from the principle of open justice can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice.
Anonymity and the holding of a hearing in private were reassessed at every interim hearing in the litigation process (the Defendant’s application to lift anonymity failed at the CCMC but she raised it repeatedly with the court in correspondence following). The Judge commented that he was unable to think of any way in which the trial could occur in public “without the parties being immediately identifiable from the details of the evidence.” This adhered to the Practice Guidance on Interim Non- Disclosure Orders , which states the court “will also adopt procedures which seek to ensure that any ultimate vindication of Article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application.”
To obtain a final injunction, the Judge required the Claimant to provide evidence in chief on matters in dispute between the parties, in the absence of the Defendant. Final injunctions to prevent publication or stop continuing publication of certain information sought under torts, whether by infringement of privacy or harassment do, however, remain statistically rare. Inforrm have recently commented on the Ministry of Justice’s privacy injunction statistics for 2017 here, where it was reported that there were 2 final privacy injunction proceedings in 2017 and only one that resulted in a final undertaking. The statistics on final injunctions are notably in contrast to all privacy injunctions statistics for 2017 which revealed a substantial increase of 14 injunction applications being recorded in 2017, in contrast to 2016 when only 3 such applications were initially recorded.
In this case, when considering injunctive relief, the Judge was clear to comment in light of the evidence before him that the Defendant still represented a continuing risk to the Claimant, to his wife and family and he “could not conclude otherwise”.
The decision to grant a final injunction was in line with the Judge’s earlier emphasis on the Defendant’s conduct in December of last year when rather than engaging in these proceedings instead initiated a claim against the Claimant in in another jurisdiction – recognised as not only containing “allegations of a scandalous nature about his personal integrity” which were “not been supported by any evidence” but also, fundamentally, dealt with matters which could have been raised by way of counterclaim in the UK proceedings.
The Claimant “AXB” was represented by Nigel Tait and Persephone Bridgman Baker of Carter-Ruck, John Ryder QC (6KBW) and Adrienne Page QC and Adam Speker (5RB).
from Inforrm’s Blog https://inforrm.org/2018/03/29/case-law-axb-v-bxa-false-claims-of-pregnancy-and-threats-to-misuse-private-information-in-an-extra-marital-affair-constituted-harassment-chloe-flascher/
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