The High Court continues interim anti-harassment injunction

At a return date hearing on 12 July 2024, Aidan Eardley KC (sitting as a Deputy High Court Judge) continued until trial or further order an anti-harassment injunction granted to prevent the Defendant from, amongst other things, approaching or contacting the Claimant.

Whilst the judgment does not significantly develop the law in this area, it does cover a range of important areas of the law that are likely to be of interest to practitioners and others who operate in the reputation management space. 

Background facts 

The Claimant is the founder and chairman of an asset management business. In 2023, the business appointed the Defendant to a management position. There were a number of complaints made about the Defendant’s conduct at work which the Defendant disputes, leading to the Defendant's dismissal. The Defendant then initiated Employment Tribunal proceedings for unfair dismissal, which were struck out as he had not been employed for the minimum period necessary to make such a claim.

The Claimant's evidence before the Court described various acts allegedly carried out by the Defendant following his dismissal, including the Defendant turning up at the Claimant's house and sending communications to the Claimant and individuals closely involved with the Claimant and the business. 

History of proceedings 

The Claimant issued a without notice application on 6 June 2024, which was heard by the Court the next day. The hearing proceeded without notice and an interim injunction was granted, which prohibited the Defendant from (a) physically approaching the Claimant or his family; (b) making any direct contact by any means with the Claimant, his family, his business or his staff; and (c) publishing, communicating or disclosing any information to any third party about the Claimant, his family, his business or his staff. The injunction also provided for mandatory orders including for the delivery up of specified communications.

Key practical points 

Alternative service 

The Court had previously authorised the service of a claim form and particulars of claim by email and WhatsApp. Whilst service by alternative means is permissible under CPR 6.15 / CPR 6.27, it is unusual for the Court to permit service by WhatsApp (although Nicklin J did authorise service via text message in NPV v QEL in 2018). Given that WhatsApp is the communication method of choice for many, it is likely that we will see the Court making similar novel orders for service in the future. Should a party seeking a harassment injunction envisage any issues regarding service by the methods prescribed by CPR 6.20, then an application for alternative service should be made as soon as possible (and may be made without notice). 

Remote attendance at hearings

Whilst the participation by parties at hearings remotely was normalised during the pandemic, a party should never assume that the Court will permit remote attendance where an in-person hearing has been listed. The Court confirmed that if a party wishes to participate in a hearing remotely, then an application notice supported by evidence should be made as soon as possible. 

In this case, the Judge identified a real risk that the hearing might be disorderly if the Defendant were to participate remotely, with strong evidence-based reasons for permitting him to participate remotely being required in order to outweigh that risk. No such evidence was provided. 

Non-attendance on purported medical grounds 

The Defendant had sought the Claimant's agreement to vacate the return date hearing on medical grounds. The Claimant refused and invited the Court to proceed in the absence of the Defendant. 

The Court reaffirmed the principles in Decker v Hopcraft and the relevant cases mentioned in the commentary to CPR 23.11 and CPR 39.3 in the White Book. In particular, the Court emphasised that a party's medical records on their own will often be of little assistance: what is required is medical evidence from a medical practitioner explaining the patient's condition and how it will prevent that person from attending Court or participating in the hearing. It is often the second part of this test that is the hardest to satisfy. 

The rule in Bonnard v Perryman

In a case where the nub of the application is the protection of a claimant's reputation, the Court will apply the more exacting threshold test identified in Bonnard v Perryman which applies in defamation, and will refuse interim relief if a defendant asserts on some credible basis that publication will be defensible. 

In determining whether the nub of the claim is the protection of reputation, the Court must stand back and ask itself what really is the gist and purpose of the application. The rule in Bonnard v Perryman is likely only to apply where the protection of reputation is the “sole or main purpose”. The fact that the claim may be motivated in part by concern for reputational harm is unlikely to be sufficient to engage the rule. In this case, the Judge was satisfied that protection of reputation could not be said to be the "nub" of the application for an injunction. 

The test in HRA 1998 s.12(3) 

In order to continue the injunction, the Court must be satisfied that the test in s.12(3) HRA 1998 is satisfied – namely that the claimant is more likely than not to obtain at trial a final injunction. The Court was so satisfied on the facts of this case. 

Costs

The Court confirmed that the appropriate order following an injunction application is "costs reserved" as the Court does not determine the underlying merits of the claim but has made a prediction as to the likely outcome at trial based on the evidence presently available.

Next steps 

The judgment referred to the fact that the Claimant had issued an application for default judgment and for a final injunction. Unless the claim settles in the interim, it seems likely that a hearing of such application will be the next procedural stage. If that does not succeed, then the case will progress to a full trial. 

RBT v YLA [2024] EWHC 1855 (KB)