25 May 2014

Confidentiality and damaged people

In AVB v TDD [2014] EWHC 1442 (QB) the High Court in London has granted an injunction but declined to award damages regarding a solicitor’s claims against a sex worker for misuse of private information, harassment, breach of confidence and breach of contract. The Court found for the solicitor in respect of one element of his privacy head of claim.

AVB, the solicitor, was 68 last year when his relationship with Ms TDD broke down. He is divorced, with three children. In 2012 he secured the services of TDD, who is in her early twenties. The judgment refers to a volatile relationship that was not exclusively sexual and featured sustained pungent disagreements. She had for example sought help with writing (including correspondence complaining about a teacher), perhaps consistent with indications that she had been accused of plagiarism. She claimed to be entitled to a certificate that was withheld by the college but needed for admission to another institution. She offered sexual services in exchange for that help. She also sought money for travel and tuition and requested a reference as a paralegal, with AVB introducing her to a QC.

The judgment states that "They also got on well together when they were not quarrelling, since they had in common the cultural interests that two highly educated people often do have".

Justice Tugendhat comments [at 98]
I have disbelieved evidence given by both parties about the events that have occurred. I shall therefore review the history of their relationship primarily from the contemporaneous documents. However, the contemporaneous documents are in many respects not just unreliable, but also untruthful. This is in part because they reflect the fantasies that both parties claimed to entertain about each other, and in part because the parties were deceiving and abusing each other. He was deceiving her with false assurances about the help she could expect from him with her studies and her career, in order to get her sexual services for less money. She was deceiving him with false assurances of her affection with a view to getting his help with her studies and her career, and more money.
Perhaps unsurprisingly, the Court considered that AVB and TDD were in a business relationship as distinct from being emotionally involved. The relationship had soured - or reflected an interest in power games - quite early. The judgment for example states [at 139]
His evidence that they were emotionally involved is incredible. It is inconsistent with the contemporaneous documents, some of which I have cited. In my judgment he cannot have ever believed it to be true. It is a lie to seek to explain why he was not paying her at the rate she set, as she repeatedly demanded that he should do."
Her jealousy was commercial, not emotional.
TDD complained that AVB was not providing agreed remuneration. She sent emails and Facebook messages to AVB’s daughters - one of whom indicated to her father "To what extent the content of the indescribably sickening messages are true or not really doesn't concern me, either way this has all gone too far and I really don't think we are going to be able to have much of a father-daughter relationship from now on" - and to AVB's colleagues.

The communication featured information regarding AVB’s children, his ex-wife and children and other women with whom he had been in sexual relationships (including his office receptionist). TDD had obtained that information from AVB directly, from his memory sticks and his laptop. In the communication TDD disclosed his relationship with her and her claims that he was not paying her or keeping his promises.

AVB eventually took action against TDD, claiming that her communication constituted misuse of private information, breach of confidence (including the contractual breach of a problematical  'confidentiality agreement' signed in June 2012).

AVB also claimed that the sending of the messages and obtaining the memory sticks and laptop files constituted harassment.

He sought damages and an injunction to prevent further dissemination of the information.

 TDD brought a counter-claim against AVB for harassment, seeking damages and an injunction restraining AVB from further harassing her or disclosing information about her sex work (which she hadn't disclosed to her family). She claiming that he had behaved threateningly towards her, stalked her and threatened to kill her.

In AVB v TDD [2013] EWHC 1705 (QB) the Court referred to granting in May 2013 of
an injunction to restrain the publication of information alleged to be private and confidential, and of information which was liable to or might identify the Claimant or the Defendant as a party to the proceedings. The information concerned the personal relationship that had existed between them, and communications to and about family members.
Justice Tugendhat stated that
I granted the application without notice because communications had taken place between the parties, and it appeared from the response of the Defendant that, if the Claimant gave notice, there was a risk that the purpose of the proceedings might be defeated. I decided that it was necessary for the parties to be anonymised in these proceedings in accordance with CPR 39.2, and that no copies of the confidential schedules to the statements of case or of the witness statements and the applications should be provided to non-parties without further order of the Court. I also made consequential orders for the protection of the hearing papers. In the light of the allegations made by the parties in pre-action communications, I decided that these orders were necessary in the interests of justice if the purpose of the proceedings was not to be defeated. 
In the current decision Justice Tugendhat notes
There is no question of Art. 8 furnishing an absolute right to privacy. Art. 8.2 qualifies, in terms, the right conferred by Art. 8.1. The claims of privacy must of course also be read with the right to freedom of expression provided by Art. 10 (in this jurisdiction, to be read together with s.12 of the HRA). Moreover and, in my view, with respect, wisely, Laws LJ emphasised in Wood (supra), at [22], that the purpose of the 'safeguards' or 'qualifications' to which he referred was to ensure that the '…core right protected by article 8….should not be read so widely that its claims become unreal and unreasonable'.
The judgment indicates that TDD did not misuse AVB’s private information or breach his confidence by sending the messages relating to the fact of their relationship and her claims that he was not paying her or keeping his other promises to her. Their relationship was not conducted entirely in private; they went to public events together, AVB introduced TDD to relatives (such as the QC) and friends, and provided a professional reference.

The court held that AVB did have an expectation of privacy in relation to the information TDD disclosed about his ex-wife and children and other women with whom he had been involved. That this information had been disclosed to TDD in confidence. As such, there was a misuse of private information/breach of confidence regarding those disclosures.

The Court declined to award AVB any damages, holding that although AVB experienced some embarrassment he suffered no (or no significant) distress. Moreover AVB took pleasure in provoking TDD’s anger. Although a sex worker cannot sue for remuneration she is able to complain to third parties.

Justice Tugendhat held that on grounds of public policy the 'confidentiality agreement' entered into by TDD and AVB was unenforceable, given that it purported to give up TDD’s right to complain of exploitation. It could not be construed as applying to communications about the terms on which they were agreeing or negotiating her provision of sexual services, at a time after a dispute had arisen between them.

AVB’s claims of harassment were dismissed, with the court finding that TDD's conduct was a response to AVB’s abuse. Justice Tugendhat upheld TDD’s counter-claims of harassment but declined to award her any damages, given that she chose to continue to retain AVB as a client despite awareness of his behaviour. "If her distress had been more than passing she could and would have ceased to have anything to do with AVB".

AVB gained an order preventing TDD from further disclosure of confidential or private information about AVB’s family and sexual or financial information about third parties with whom he had a sexual, personal or professional relationship. AVB was however not entitled to an order restraining publication of any other information on which TDD based her complaints.