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Brand v Berki - 5RB Barristers Call 5RB+44 (0)20 7242 2902 Menu About us Our work People Barristers Support team Recruitment Resources Cases News Publications Articles 5RB Talks Links Contact Contact us Enquiry Visit us Urgent injunctions Complaints procedure Register for 5RB updates Barristers Cases Brand v Berki Reference: [2014] EWHC 2979 (QB)

Court: High Court (Queen's Bench Division)

Judge: Carr J

Date of judgment: 11 Sep 2014 Summary: Harassment - injunction - Article 10 - s12 HRA - balance of convenience

Download: Download this judgment

Appearances: Aidan Eardley KC (Claimant) 

Instructing Solicitors: Archerfield Partners LLP for C

Facts C1 was Russell Brand, a well-known comedian and actor, C2 was Jemima Goldsmith, a journalist and UNICEF ambassador. They were in a relationship together at all material times. D held herself out as a professional masseuse.

C2 arranged for a massage from D as a birthday present from C1. They met at C2’s house in Oxfordshire, the Cs saying that C1 did not wish to go ahead with it, D alleging that she was the victim of criminal conduct thereafter. Following this D sent various emails to C2 and her solicitors referring to an approach to the media and setting out the allegations she intended to make. She also publicised these more widely. D reported an alleged assault by C1 to the police.

C1’s solicitors having written a letter of claim to D, D’s allegations escalated to allege interference with her telephone and emails and some sort of “cyber attack”. The police closed their investigation, informing the Cs that there was no case for them to answer. D sought publicity for allegations of very serious criminal offences against the Cs. Some of D’s allegations were published in the press, and she placed a petition on the website Change.org headed “To serve justice and to prosecute Jemima Khan and Russell Brand”.

The Cs gave evidence of the considerable distress caused by D’s communications and activities in their witness statements. Their case was that D’s conduct was unlawful harassment and would continue absent an injunction. They had sought and obtained an anti-harassment injunction granted by Lewis J on an urgent basis some weeks earlier in terms which injuncted D from:

a) communicating with the Claimants or either of them, directly or indirectly;

b) making any approach to or responding to any enquiry from any journalist or media organisation in relation to the Claimants or either of them;

c) publishing or disclosing to any person any information concerning her attendance at the Second Claimant’s home or any allegation or insinuation that the Claimants or either of them had committed any criminal offence or behaved in a manner which might amount to a criminal offence or any allegation or insinuation that the Second Claimant exploited to sought to exploit the Defendant or otherwise act in a manner incompatible with her role as a UNICEF Ambassador.

D was ordered to use all reasonable endeavours to remove the petition. She was not prevented from communicating with the police for the purpose of pursuing her complaint as to the decision not to charge the Cs. The hearing was a re-hearing of the earlier application, following issue of a claim form and service of Particulars of Claim, seeking an injunction in the same terms to be continued to trial.

D applied for a stay and discharge of the injunction, along with time to update her evidence and disclosure of CCTV tapes from C2’s house.

The Cs sought a direction pursuant to CPR 39.2 that the hearing should be in private on the grounds of strict necessity. While the injunction was sought in harassment, D’s allegations concerned private matters which had not been reported in the media, and which were contained in a Confidential Schedule to the order of Lewis J.

Issue 1) Whether the hearing should be in private.

2) The outcome of D’s application for a stay.

3) Whether the injunction should be continued until trial.

Held Continuing the injunction

1) The matter should be allowed to proceed in public, on the basis that matters identified in the Confidential Schedule should be withheld from the public at the hearing. The reporting restriction made by Lewis J pursuant to s11 of the Contempt of Court Act 1981 to the effect that until further order there should be no publication in connection with the proceedings of the matters identified in the Confidential Schedule was continued. The Judge made an ancillary order under CPR 5.4(C)(4)(A) that no one who was not a party to proceedings could obtain a copy of the Defence or further statement of case filed by D without further order.

2) No good reason to stay the whole or part of proceedings under the court’s inherent jurisdiction could be identified. D’s continuing conduct militated strongly in favour of the proceedings and the application continuing. To the extent that a stay was sought for D to obtain medical evidence, there was no indication as to the issue to which the evidence would go. To the extent it was based on the alleged “absurdity” of proceedings, that was another way of denying the Cs’ entitlement to injunctive relief. The application for a stay was dismissed, the Judge recording the fact of D’s alleged mental health disabilities.

3) The claim form issued after the hearing before Lewis J included a claim for damages and injunctive relief for libel as well as harassment. While the rule in Bonnard v Perryman [1891] 2 Ch 269 precluded the granting of an interim injunction in defamation unless it was clear no defence could succeed, the Particulars of Claim served subsequently limited themselves to harassment, and the Judge proceeded on the basis that this was the gist of the claim.

The claim engaged D’s Article 10 rights, and s12 HRA 1998 applied. The Cs needed to establish on the balance of probabilities that they would succeed at trial. The Judge was satisfied on the basis of the material before her that they were likely to succeed at trial in establishing that D had committed the tort of harassment. Considering the possible defences available to D, the Judge concluded that she was unlikely to establish a defence.

Damages were no adequate remedy, and the balance of convenience lay in favour of continuing the injunction to trial.

Comment The majority of D’s conduct here consisted of publications: both on the internet, and to newspapers and to other individuals by email. In spite of the highly defamatory nature of D’s allegations, the injunction sought was in harassment only, ensuring that the application was not caught by the rule in Bonnard v Perryman.

The judge held that the test for the grant of an injunction where publication is to be restrained was met, ie that it was more likely than not that the Cs would succeed at trial. But she also referred to the American Cyanamid test, in holding that the balance of convenience lay in favour of the injunction. This lower threshold may fall to be considered by the court where a harassment claim encompasses conduct other than merely publication.

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