Case Law: KJH v HGF: blackmail, private information and derogations from open justice – Henry Fox

27 11 2010

On Wednesday 24 November, Mrs Justice Sharp handed down judgment in KJH v HGF [2010] EWHC 3064 (QB). This is the latest in the recent series of judgments concerning anonymisation in privacy injunctions.

The judgment continued the order preventing publication of stolen private and confidential information concerning KJH who had been a victim of blackmail by HGF. The derogations from open justice were also continued and the parties were referred to anonymously.

This is the fourth time that the matter has come before the courts. The order was first granted by Eady J and has been continued twice before this most recent hearing (first by Sharp J and then subsequently by Eady J).

The Order Restraining Publication

Mrs Justice Sharp was satisfied, in accordance with s.12 (3) and (4) Human Rights Act 1988, that KJH would be likely to establish at trial that publication of the information in question should not be allowed.

This was due to the fact that the privacy interests engaged were strong as was the claim for breach of confidence. Moreover, she was satisfied that there has been neither any waiver of KJH’s privacy rights nor is there any public interest which justifies publication of the information.

Derogation from the Principle of Open Justice

In continuing the anonymity order, Mrs Justice Sharp reiterated some of the recently established principles in relation to blackmail cases. Reference was made to Tugendhat J’s dictum in AMM:

“…where a claimant alleges he is being blackmailed, the court may be faced with limited choices. One choice is to refuse an anonymity order. But in that case, if the blackmailer’s threat is to be thwarted, the court will restrict publication of the information which is the subject matter of the action. The alternative is for the court to grant the anonymity order. The court can then permit publication of some of the facts about the action, including the allegation of blackmail. If the court adopts that course, then the anonymity order should suffice to prevent publication of the fact that it is the applicant who has been blackmailed.” (at [21])

 

It was decided that the latter option was appropriate in this case. As a result the parties to the action are to remain anonymous and only brief details about the subject-matter have been disclosed. We learn that the private information does not relate to any extra-marital affair by KJH or to any wrongdoing (sexual or otherwise) by KJH or any other person. Mrs Justice Sharp declared that:

“… it is not possible in my view, to give more details than the extremely limited ones I have referred to already without there being a significant risk that … KJH ‘s identity will become public, as will the private and confidential information which this action is brought to protect.” (at [6])

In line with the decision in AMM, the judgment highlights the strong public policy justifications for the protection by the courts of victims of blackmail:

“…such persons should not be deterred from seeking the protection of the courts for fear that the information which the blackmailer has threatened to reveal will be exposed or their identity as the victim of blackmail will be made known…granting anonymity at the interim stage serves not only the interest of the applicant in protecting his or her Article 8 rights but the public interest as Tugendhat J also said, in promoting the prevention and punishment of blackmail.” (at [11])

A Warning to Publishers…

Interestingly, in addition to the orders mentioned, the judgment contains three warnings (on the front sheet, at the beginning and at the end of the judgment) that

“…publication of any information as to the subject matter of these proceedings or the identity of the parties to these proceedings is limited to that contained in this judgment.

The Bailii version of the judgment highlights this by printing it in red although the handed down version is in ordinary type.

This serves to warn publishers against engaging in so-called “jigsaw-identification” of the applicant and/or the subject matter of the proceedings. This follows recent press speculation surrounding the decision in JIH v News Group Newspapers (see a recent post on this blog by Mark Thomson). Such conduct will clearly serve to frustrate the purpose of the order protecting the applicant’s Article 8 rights.

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29 11 2010
Law and Media Round Up – 29 November 2010 « Inforrm's Blog

[...] public judgment in the privacy blackmail case of KJH v HGF ([2010] EWHC 3064 (QB)) has already been discussed on this blog by Henry Fox.  There is also a 5RB case [...]

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