November 21, 2016

The first claimant, TRK, was a married man. The second claimant, BVP, was TRK’s lover. She was not married. Their extra-marital relationship began in March 2016. By July 2016 it had lapsed. BVP then entered into a sexual relationship with the defendant, ICM. In September, the relationship between TRK and BVP started up again. BVP carried on seeing ICM. For two months she was seeing both men. BVP then ended the relationship with ICM. On the same day, ICM found out from another source that BVP had been seeing someone else.

The claimants sought injunctions restraining ICM from engaging in harassment of them, and from making disclosures, which they alleged would represent a misuse of their private information. Their case was that he had hacked into BVP’s email; read private and confidential correspondence of her and TRK; acquired their private information; wrongfully used that information to harass both of them; and threatened wrongfully to disclose such information to TRK’s wife.

Mr Justice Warby found that: (i) the application was properly made without prior notice; (ii) it was not necessary to hold the hearing in private; it was possible to conduct it publicly, providing all concerned were discreet in making public any identifying details, and appropriate orders were made for anonymity and limiting access to the court file; (iii) on the available evidence, the likelihood that the claimants would obtain injunctions at trial in the terms they sought was sufficient to justify the grant of short-term injunctions, pending a hearing on notice to the defendant.

Warby J noted that his job was to strike an appropriate balance between the competing Article 8 and Article 10 rights of all parties concerned, including TRK’s wife.

In Warby J’s view, a person who finds out that a married individual has been unfaithful to his or her spouse may, in some circumstances, have every right to inform the wronged spouse, who may have a right to know that information. If the person came by the information by observing behaviour in a public place, for instance, the court might be reluctant to intervene to prohibit disclosure. Other factors might weigh against the grant of an injunction. However, he said, it was improbable that the court would consider it legitimate to disclose the details of the unfaithful spouse’s correspondence. Still less if access to that correspondence was only gained surreptitiously, without consent.

Further, Warby J said, to allow disclosure, or the continued use of wrongfully acquired information to harass the claimants with threats of disclosure would be to permit ICM to use such wrongdoing as a springboard. In addition, ICM’s purpose in making disclosure, or threatening disclosure, appeared to be more vengeful than altruistic. (TRK v ICM [2016] EWHC 2810 (QB) (8 November 2016) — to read the judgment in full, click here).