KJO v XIM

Factual and Procedural Background

This litigation commenced at the end of 2008 and has experienced limited progress due to unusual facts and evolving legal strategies. Approximately 20 years prior, the Plaintiff forged a will purportedly belonging to his maternal grandmother, was convicted of forgery, and sentenced to nine months imprisonment in 1992. Subsequently, the Plaintiff relocated abroad, residing in Hong Kong for many years in investment banking roles. The Plaintiff has long been subject to communications from his maternal uncle to various employers and official bodies disclosing the conviction, which only came to the Plaintiff's attention in late 2008. The Plaintiff's claim, initiated on 23 December 2008, seeks to prevent any further such publications by the Defendant.

On 17 June 2011, several applications were before the court, including the Defendant's request for security for costs, an application to strike out a time-barred libel claim, and the Plaintiff's application for summary judgment on privacy and data protection claims. The issue of costs relating to discontinued claims was resolved with the Plaintiff accepting liability. The court first addressed the merits of the claims before considering security for costs.

Legal Issues Presented

1. Whether the Defendant should be ordered to provide security for costs.
2. Whether paragraph 16 of the Re-amended Particulars of Claim, concerning a libel claim alleged to be time-barred, should be struck out.
3. Whether summary judgment should be granted on the Plaintiff's claims based on privacy under the Human Rights Act and the Rehabilitation of Offenders Act 1974.
4. Whether summary judgment should be granted on the Plaintiff's data protection claim under the Data Protection Act 1998.
5. Determination of the applicable law and jurisdiction for the claims.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relies on developments in privacy law, particularly the Human Rights Act and the Rehabilitation of Offenders Act 1974, to argue for protection against further publication of his spent conviction.
• He asserts a reasonable expectation of privacy regarding the spent conviction, invoking Article 8 of the European Convention on Human Rights and related case law.
• The Plaintiff argues that the Defendant’s continued communications serve no legitimate purpose and cause substantial damage and distress, warranting injunctive relief under the Data Protection Act 1998.
• He submits that English law applies to the claims and that summary judgment is appropriate as there are no contested facts requiring trial.
• The Plaintiff seeks an order for anonymity to protect confidentiality during the court process.

Defendant's Arguments

• The Defendant applies for security for costs, citing the Plaintiff’s residence abroad and lack of assets in England.
• He seeks to strike out the libel claim as time-barred under English limitation law.
• The Defendant challenges the applicability of the Rehabilitation of Offenders Act 1974 to prevent publication, emphasizing the absence of a statutory right to confidentiality and the difficulty of proving malice required for an injunction.
• He contends that the law of Hong Kong applies to most claims, particularly those concerning publications made or to be made there, thus precluding summary judgment under English law.
• The Defendant disputes the characterization of sending emails as "processing" under the Data Protection Act and argues that the Act does not apply to data processed for domestic purposes.
• He denies that the publications are inaccurate or unfair, asserting that the spent conviction remains a true fact and that the Plaintiff is forum-shopping to gain an advantage under English law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the claims by reference to the applicable statutory and common law principles, as well as relevant case law. It acknowledged the Plaintiff's conviction became spent under the Rehabilitation of Offenders Act 1974, which provides limited privileges but does not create a general right of confidentiality or a right to prevent truthful publication absent malice.

The court noted that summary judgment on the privacy claim was inappropriate because proving malice—a prerequisite for restraining publication of truthful information—is rarely possible at an interlocutory stage and requires a full trial. The court recognized the evolving nature of privacy law but emphasized that any extension of remedies beyond those expressly provided by Parliament would require clear authority.

Regarding jurisdiction and applicable law, the court found that most publications occurred in Hong Kong, where the Plaintiff resides and works, and thus Hong Kong law likely governs claims related to those publications. This precluded summary judgment on those claims under English law.

On the data protection claim, the court distinguished it from the privacy claim, noting that the relief sought concerned data processing in England by a data controller established here, and thus English law applied. However, the Defendant raised triable issues including the scope of "processing," the domestic purposes exemption, and the absence of evidence of damage or causation. The court found summary judgment premature given these contested issues and the developing legal landscape.

The court struck out the libel claim as time-barred under English limitation law, finding no sufficient reason to disapply the primary limitation period.

Concerning security for costs, the court exercised its discretion to order the Plaintiff to provide security in the sum of £20,000 to protect the Defendant against enforcement costs in Hong Kong, considering the Plaintiff’s lack of assets in England and the reasonableness of the amount.

Finally, the court granted the Plaintiff anonymity to protect confidentiality during proceedings, recognizing the possibility that the Plaintiff may succeed at trial on the confidentiality of spent convictions.

Holding and Implications

The court denied the Plaintiff's applications for summary judgment on the privacy and data protection claims and struck out the time-barred libel claim.

Security for costs was ordered in the sum of £20,000 to safeguard the Defendant's interests. Anonymity was granted to the Plaintiff to preserve confidentiality pending trial. The decision reflects the court’s cautious approach to expanding privacy protections beyond established statutory frameworks and the necessity of a full trial to resolve contested factual and legal issues. No new precedent was established; the ruling primarily affects the parties by clarifying the procedural posture and applicable legal principles in this complex, multi-jurisdictional dispute.