FOOTBALL, SEX, INJUNCTIONS AND MATERIAL NON-DISCLOSURE: BE CAREFUL NOT TO GET ON THE JUDGE'S OFFSIDE
In YXB -v- TNO Mr Justice Warby set out the importance of full and frank disclosure on parties making an application for an ex-parte injunction. It also reiterates the importance of claimants giving direct evidence whenever possible and the dangers of solicitors making statements which are, essentially, a mixture of hearsay, opinion and submissions.
The claimant was a professional footballer who had a brief sexual relationship with the defendant. The defendant signed a contract with the Sun. The claimant made an application, without notice to the defendant, seeking an injunction to prevent any information being divulged. That application was granted.
- On an application for an injunction in relation to privacy any evidence should be adduced personally by the claimant.
- It is important that solicitors take instructions directly from the client.
- It is important that the client is told of the duty of full and frank disclosure.
- A failure to comply with the duty of full and frank disclosure could (and did) lead to the without notice injunction being set aside.
THE APPLICATION BEFORE MR JUSTICE WARBY
The question was whether the injunction should be continued. There were a number of issues considered. One of the important issues was the question of material non-disclosure at the initial application.
THE NEED FOR THE CLAIMANT TO PROVIDE EVIDENCE PERSONALLY
One matter the judge commented upon was the need for a claimant in these circumstances to provide evidence personally. The claimant in this case had relied on evidence provided in statements from his solicitor.
- A claimant who seeks an injunction to restrain misuse of private information is asking the court to attach more importance to his right to respect for his private life than to the defendant’s free speech rights. Claimants are expected to speak for themselves, unless there is some good reason why they cannot do so. Ordinarily, therefore, at every hearing at which an order for non-disclosure is sought there should be evidence from the claimant. If the rights of any third parties such as partners are relied on, they too should ordinarily speak for themselves. If, due to urgency or for any other reason, evidence from these sources cannot be obtained in time, the court hearing an application without notice or on short notice will expect an undertaking to provide it when it can be obtained. If such evidence is still not available on the return date, the court will look for an explanation of why that is. All these points are well-known to practitioners in this field, and to a wider audience, at least since they were made by Tugendhat J five years ago in Terry v Persons Unknown  EWHC 119 (QB); see in particular -.
THE EVIDENCE IN THIS CASE
- The evidence was contained in a single witness statement, made by Ms Feely, associate at Manleys solicitors, on 19 February 2015, the day of the application. The first paragraph of the statement said that its contents were within her own knowledge unless otherwise stated. Very little of it could however have been within her own knowledge. Paragraph 2 described the claimant, giving his professional roles and his age. The claimant was said to have “a long-term partner, with whom he lives a married life and who is the mother of his only child, a daughter.” The statement gave no explanation of why there was no witness statement from the claimant. An explanation has since been given, to which I shall come. Nothing further was said about the claimant’s partner or child or why, given that her rights were implicitly being relied on, the partner had not made a statement. No explanation for the absence of any such statement has been given since.
- Paragraph 3 of Ms Feely’s statement opened in this way: “My colleague Mark Manley (“Mr Manley”) received a telephone call from the Claimant’s agent (“the Agent”) on Tuesday 17th February 2015 to request legal advice”. This part of the evidence therefore seems to be Ms Feely’s account of what Mr Manley told her he had been told by the Agent. Further degrees of hearsay are involved, as will be clear from the account given,... .
- The defendant’s statement notes at paragraph 50 that there was no mention in Ms Feely’s first statement of any distress that would be caused to YXB by the release of any of the information. The response came in Ms Feely’s third statement. The information in this statement was, like her first, said to be “derived from my own knowledge unless otherwise stated.” At paragraph 18 she refers to the defendant’s paragraph 50, describing it as “remarkable” to suggest the claimant would not be distressed. She asserts that it is “obvious that such would result from infringement of his privacy. For the avoidance of any doubt the publication of the claimant’s confidential and private information would undoubtedly cause the claimant distress and embarrassment.” This once again takes the form of a submission rather than a statement of fact based on what she has been told by the claimant. She goes on “The claimant believes that his sex life is and should remain private and that details of it should not be published to the world at large (whether for commercial gain or not)”. This is not much better. Although it does refer to what the claimant believes, it does not state that she has spoken to him about the matter. I note that the statement of truth on the Particulars of Claim is not signed by the claimant but by Ms Feely.
- Mr Dean focuses on three facts, which he submits I can safely conclude are made out, are material, and were not disclosed: the fact that the encounter at Mr X’s flat was witnessed by others; the fact that the purpose of the meeting at the hotel was to find out the defendant’s price for withdrawing from her contract with The Sun; and the text message sent by the defendant to Mr X. I agree that all three matters are established on the evidence before me, and that all are material facts which should have been but were not disclosed.
- The fact that others interrupted the oral sex in the early hours of 16 December is not, as Mr Dean frankly accepted, the most important matter in the world for present purposes. Nonetheless, the extent to which information is already known to others and might be or might have been disclosed by them is a material issue. The fact that there were several other players who knew what had happened was not only unchallenged in itself, it is also something which on the undisputed evidence must have been known to the claimant. The evidence for the claimant does not convince me that any instructions on that, or indeed any issue were taken directly from the claimant. The closest the evidence comes to asserting as much is the passage from Ms Feely’s third statement that I have quoted at 47 above, but her evidence as a whole and her reference to language difficulties suggests otherwise. The position appears to be that the claimant’s account was given to the Agent and relayed by him to the solicitors. That may account for the fact that this point was not addressed. It was not suggested that this was a deliberate non-disclosure, but it seems to me obvious that it should have been made, and that the approach taken to obtaining instructions is likely to have been at the root of the problem.
- The purpose of the meeting between Mr X and the defendant is a much more important point. Clearly, the meeting had more than one purpose, but the impression conveyed by the evidence put before Walker J was quite different from the one that emerges from the undisputed transcripts of the two calls between Mr X and the defendant, the WhatsApp exchanges between them, and the statement of Mr X. All of this material supports the conclusion that the main purpose of the meeting was to make sure the defendant’s story did not get out, and to that end to find out how much evidence she had and what it would take to buy her silence. In my judgment it cannot sensibly be denied that the picture presented was materially inaccurate, given what Mr X has now said in his statement and the documentary evidence produced by the defendant.
- Mr Dean goes further and submits that the fuller evidential picture now available makes clear that there had been nothing that could be described as blackmail, which requires an “unwarranted demand with menaces”: Theft Act 1968, s 21. Here, there was no demand but rather an unsolicited offer by Mr X, accepted by the defendant, he submits; even on Mr X’s version of events, in which the defendant named the figure, it was clearly he who invited her to do so. There were no menaces either, submits Mr Dean. The defendant had already agreed to and disclosed the information. She was initially encouraged and persuaded to retract consent to publication. She was not menacing the claimant with publication. Thirdly, even if she was menacing the claimant she believed she had reasonable grounds for doing so, as she had a contractual obligation to the Sun.
- I see a good deal of force in the first and second of these submissions. However, the scope of the offence of blackmail is broad, and one must be careful not to take a narrow or literal view of the terms “demand” and “menaces”. It is important also not to conduct a mini-trial of such an issue on an interim application, without hearing the recorded conversations, or cross-examination. What I can and do conclude is that the case for describing what took place on 16 and 17 February as blackmail is weak, and a great deal weaker than it was made to appear on the application to Walker J. In particular, the evidence gave an incomplete and therefore inaccurate account of the reasons for the approach to the defendant on 17 February. The fact that the purpose, or one main purpose of the meeting was to find out the defendant’s price could and should have been obtained from Mr X, and was not. The existence and content of the WhatsApp messages between him and the defendant also could and should have been ascertained and disclosed. They strongly support the view that what took place was entirely initiated by the claimant’s representatives, with a view to buying off the defendant.
- What is entirely clear, so far blackmail is concerned, is that it was misleading and wrong to suggest to Walker J on 19 February 2015 that the defendant “is blackmailing” the claimant, without disclosing the WhatsApp message she had sent Mr X at lunchtime the previous day, saying that she wanted no further offers. If that message is accepted at face value it destroys any suggestion that there was blackmail at the time. The reasons belatedly given for suggesting this message was got up by the defendant as some kind of cover story do not strike me as very compelling. At any rate, it cannot seriously be disputed that this was a material item of evidence which ought to have been disclosed and, to his credit, Mr Bennett did not dispute it.
- Mr Dean invites me to conclude that this was deliberate non-disclosure. It seems to me that it was on any view highly culpable because the text was plainly relevant to the issues that were going to be before the court the following day, and there was plenty of time available to ensure that it was dealt with. I accept the evidence of Ms Feely that it was not known to the claimant’s solicitors. It follows that Mr X did not tell them of it. The conclusion must it seems be that either the claimant’s solicitors did not take proper steps to ensure that Mr X informed them of any written communications between him and the defendant, or they did and Mr X nevertheless failed to disclose the message. The fact that neither the solicitors nor Mr X acknowledge any fault is troubling. Either way, the claimant must accept the responsibility and the consequences, since both the solicitors and Mr X were acting as his agents.
- The fact that the message was not disclosed to the solicitors by Mr X had an unfortunate consequence. Counsel, also ignorant of the message, referred in his skeleton argument before Walker J to the defendant’s “last words” in the telephone conversation of 17 February. This did not state that these were the defendant’s last words to Mr X, but that conclusion was implicit, given the absence of any evidence of any subsequent communications between them. The implication was wrong.
- In my judgment the importance of the duty of full and frank disclosure, and the seriousness of the material non-disclosure in this case, lead to the conclusion that the injunction, anonymity order, and reporting restriction granted by Walker J and continued by me must be discharged. In my view, the third item of material non-disclosure would of itself be sufficient to justify that conclusion. Taken together with the others, the case for discharge is highly compelling. There is little to put in the scales against it. I bear in mind that the main effect of discharging the orders as to the past is that the claimant will have to pay his own costs of the applications, as well as the defendant’s costs of the application to discharge. There might in principle be an application for damages pursuant to the cross-undertaking. None of these consequences can be said to be unjust. There is no effect on the claimant’s substantive position.
THE JUDGE’S CONCLUSIONS
- The evidential picture now before the court is materially different from that which was presented to Walker J, in a number of ways. In my judgment, the evidence on behalf of the claimant at that hearing failed fully and frankly to disclose all the information which was available to the claimant and could have been put forward had proper inquiries been made, and which it was material for the court to know. It is appropriate to discharge the orders made then and continued until this hearing.
- The grant of injunctions to protect the images for the future is rightly conceded. Otherwise, it is not appropriate to exercise the discretion to grant fresh orders. The discharge of the past orders and the refusal of orders for the future is a just and proportionate response to the non-disclosure, having regard to the protection that there will be for the images, and the relative weakness of the remainder of the claimant’s case.
THE DIFFERENCE BETWEEN “EVIDENCE”, OPINIONS AND SUBMISSIONS
One key problem here was a basic failure to understand the very nature of “evidence”. This is a common event and seen in many, many witness statements, particularly in interlocutory applications. It is precisely the problem identified by Sir James Munby in Darlington Borough Council -v- M  EWFC 11 when considering a schedule of findings.
“It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion”
Here the evidence produced by the claimant was, in essence, all assertions. The “evidence” adduced was not, for the most part, even based on direct discussions with the claimant.
Further, as the judge noted, the “evidence” adduced on behalf of the claimant relied on multiple degrees of hearsay.
The result was, as the judge found, assertions were made and evidence not adduced which could have made a material difference.
(There is no indication that this was done deliberately to deceive or in any culpable way. However that emphasises the point. Unless there is a fairly rigorous approach to obtaining and adducing direct evidence, mistakes can be made. Totally honest solicitors can make statements, or omit to mention matters, which become problematic)
THE DUTY TO ADVISE IN RELATION TO THE DUTY OF FULL AND FRANK DISCLOSURE
One difficulty in not having direct evidence is the difficulty in advising a party about the duty of full and frank disclosure. This is an essential element of any without notice application.
RELATED POSTS AND ARTICLES
On witness statements and the use of submissions and evidence
- Do I want your opinion? (Opinion evidence in witness statements).
- What are witness statements for?
- Why a solicitor should not make statements on contentious matters.
- Witness statements and the lawyer as witness: knowing the difference between evidence and submissions (and why it matters).
- Drafting witness statements and the lawyer as witness
- Proving matters by evidence: a lesson from the family court
On the duties not to mislead the court
On without notice applications and the duty of candour
- The duty of full and frank disclosure: a case in point.
- Freezing Orders and the duties owed on ex parte applications: nuclear weapons that can blow up in your face. (There are useful links to other articles on this subject in that post).
- Without notice applications for freezing orders: the dangers abound: Greenwich case contains some timely lessons
- Solicitor found to have deliberately misled the court: Boreh -v- Djibouti