No damages for the solicitor whose private information was misused by a prostitute whom he'd short-changed

In an unusual privacy claim decided last week, the High Court dismissed the majority of a solicitor's claims against a prostitute for misuse of private information, harassment, breach of confidence and breach of contract.

The Court found for the Claimant in respect of one element of his privacy head of claim, it declined to award any damages but did grant him an injunction.

The judgment can be found here.

Background

The Claimant, referred to in the judgment as AVB, is a divorced solicitor in his late sixties with three children.  The Defendant is a young woman in her early twenties referred to as TDD. She was born in China to an educated, well-to-do family and came to England to study when she was 18. She turned to prostitution to make a living and support her studies after her parents withdrew their financial support. Her decision to become a sex worker was not known to her parents. AVB procured TDD's services as a prostitute through an advertisement she had placed with an escort agency.

The parties' first encounter in March 2012 developed into a tumultuous relationship which lasted just over a year, which was not exclusively sexual and featured protracted, heated rows. The judge summed up their relationship succinctly: "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". The judge rejected the Claimant's evidence that the pair had been emotionally involved and held that theirs was a business relationship.

Conduct complained of

Shortly after the relationship began, TDD began to complain that AVB was not paying her what he had agreed to. To enforce her claims in relation to AVB's non-payment, TDD sent several emails and facebook messages to AVB's work colleagues and daughters, containing information she had obtained from AVB directly, memory sticks belonging to AVB and his laptop in relation to AVB's ex-wife and children and about other women with whom he had been in sexual relationships, including his office receptionist. She also disclosed information relating to his relationship with her and her claims that he was not paying her or keeping his promises to her.

AVB eventually brought proceedings against TDD, claiming that her conduct in sending the emails and messages constituted misuse of private information, breach of confidence (including the contractual breach of a confidentiality agreement the parties had signed in June 2012). He also complained that the sending of those messages and obtaining the memory sticks and laptop constituted harassment. He claimed for damages and an injunction to prevent further dissemination of the information.

TDD brought a counter-claim against AVB for harassment, claiming that he had behaved threateningly towards her, stalked her and threatened to kill her. She claimed damages and injunction restraining AVB from further harassing her or disclosing information about her sex work.

Court's decision

The judge held 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. The judge held that the relationship between the parties was not conducted entirely in private as the parties went out to public events together and AVB introduced TDD to a number of his friends and relatives and gave her a professional reference. The judge noted that just because a prostitute cannot sue for remuneration does not prevent her from complaining to third parties.

However, the judge 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, and that this information had been disclosed to TDD in confidence. As such, there was a misuse of private information/breach of confidence in relation to those disclosures. However, the judge declined to award AVB any damages in this regard. He held that although AVB experienced some embarrassment he suffered no, or no significant, distress and took pleasure in provoking TDD's anger.

The judge held that the confidentiality agreement entered into by the parties was unenforceable on grounds of public policy as 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.

The judge dismissed AVB's claims of harassment and found that TDD's conduct was entirely a reaction to AVB's abuse. He upheld TDD's counter-claims of harassment but declined to award her any damages as she chose to continue to retain AVB as a client knowing how he behaved.

Mr Justice Tugendhat granted AVB an order injuncting TDD from further disclosing the confidential or private information she had already disclosed about AVB's family and sexual or financial information about third parties with whom he had a sexual, personal or professional relationship. AVB was not entitled to an order restraining publication of any of the other information on which TDD based her complaints against him.

Comment

The judgment highlights the weight the Court attaches to distress suffered in making any award of damages. Notably, the judge decided that there was no reasonable expectation of privacy in relation to the fact of a relationship with a prostitute, in circumstances where the prostitute was legitimately complaining to third parties about non-payment. It is also worth noting that parts of the parties' relationship were conducted in public. It remains to be seen whether there would be a reasonable expectation of privacy in similar circumstances but where the relationship was entirely secret.