I said something here just the other day about never knowing what you’re going to come across when you read the family law reports. Well, here’s something else that is a little bit different, albeit not strictly a family law report.
Before I begin I should say that the report names the parties, one of whom makes very serious allegations against the other. Those allegations have not been proved, or at least they were not proved when the case was heard on 7 February. Indeed, the judgment is based entirely upon the evidence of the Applicant in the case, the Respondent not having had an opportunity to answer that evidence. As the judge pointed out in his judgment, the court was not, at the hearing to which the judgment relates, making any findings.
As I said, this is not strictly a family law report (the case was heard in the Queen’s Bench Division), but it most certainly deals with a family-related issue. It concerned a couple who used to be in a relationship. The relationship ended sometime last year. The Applicant alleged that on or around 21 November 2017, the Respondent removed a large number of her documents contained in various files from her home, to which he still had a key. We are not told the exact nature of the documents, only that they were private and confidential, and that some contained ‘sensitive information’.
The Applicant goes on to claim that on 1 February 2018 the Respondent contacted the Applicant, made a demand for a substantial sum of money, and told the Applicant that if he did not receive that money, he would, on 8 February 2018, disclose documents to third parties, to the detriment of the Applicant. The Applicant contends that such a demand was an effort to blackmail her. She reported the matter to the police, but there is no information about what, if any, contact the police have had with the Respondent.
On 2 February the Applicant’s solicitors wrote to the Respondent to demand, amongst other things, the return of the documents by midday on 7 February, failing which the Applicant would apply to the court for an injunction. There was no response to that letter (although there was no indication whether the Respondent had received it), and therefore the Applicant applied for an injunction. The application was originally to be simply for an order that the Respondent return the documents, but was widened to include an interim order preventing the disclosure of information contained in the documents, pending a full hearing of the matter.
The interim non-disclosure order raised a human rights freedom of expression issue under section 12 Human Rights Act 1998. The section provides that if the respondent is not present or represented, no such order may be made unless the court is satisfied that the applicant has taken all practicable steps to notify the respondent, or that there are compelling reasons why the respondent should not be notified. Here, the judge was satisfied that the blackmail element that clearly appeared on the evidence of the Applicant did provide a compelling reason why, if the Respondent had not, in fact, been notified, relief could be granted.
Section 12 also provides that: “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” The judge was satisfied that the Applicant would be likely to establish that publication should not be allowed, because of the confidential and private nature of the documents, the absence of any apparent justification for the threatened publication, and the blackmail element. He said that he:
“…cannot easily imagine a public interest justification for the threatened publication, but the Respondent will have an opportunity to raise this or any other defence at the hearing on the return day. At this stage, I am satisfied on the evidence that the Applicant is entitled to the relief sought until at least that point.”
Accordingly, he made the interim injunction order, in the terms requested.
An unusual case, but certainly I think of interest to family lawyers, who will be well aware of the issue of one party seizing documents belonging to the other, albeit not usually with a blackmail element, at least explicitly.