Hayden v Dickenson

Factual and Procedural Background

On 28 October 2020, the Plaintiff was granted an interim injunction against the Defendant without notice. The injunction was initially granted until a return date fixed for 11 November 2020. On that date, the court heard the Plaintiff's renewed application to continue the injunction in modified terms, discharging part of it and reserving judgment on the remainder.

The Plaintiff issued a Claim Form on 30 October 2020 seeking damages and an injunction against the Defendant for alleged harassment by publication, defamation, and misuse of private information arising from the Defendant's use of Twitter and Facebook from 17 October 2020.

The Plaintiff's application for an interim injunction was supported by witness evidence exhibiting various social media messages, including tweets and Facebook posts, which the Plaintiff contended constituted harassment and misuse of private information. A particular focus was on the Defendant's repeated references to the Plaintiff's previous spent criminal conviction dating back over 20 years, which the Plaintiff sought to keep private and protected under the Rehabilitation of Offenders Act 1974.

The initial injunction prohibited the Defendant from publishing anything implying the Plaintiff had a spent conviction, referencing the Plaintiff on social media, or publishing anything relating to the proceedings. The injunction was served on the Defendant via Twitter direct message and post.

Following the injunction, the Plaintiff alleged breaches involving publication of confidential witness statement extracts and other private information on a public forum, leading to police involvement and the Defendant's arrest and release on pre-charge bail with conditions prohibiting contact with the Plaintiff and related publications.

The Plaintiff renewed the application for an interim injunction on 11 November 2020, seeking continuation of restrictions on publication of spent conviction details, broad restrictions on references to the Plaintiff online, and a non-contact order. The Defendant attended the hearing but had limited ability to participate due to lack of access to the hearing bundle.

The Plaintiff also applied for reporting restrictions relating to the spent conviction. Subsequent to the hearing, the Plaintiff made an application for the recusal of the presiding judge on grounds of alleged procedural unfairness and bias.

Legal Issues Presented

1. Whether the Defendant's conduct on social media constitutes harassment under the Protection from Harassment Act 1997.
2. Whether the Defendant's publication of details relating to the Plaintiff's spent conviction amounts to misuse of private information.
3. Whether an interim injunction should be granted to restrain the Defendant from further harassment or misuse of private information, including restrictions on publication and contact.
4. The appropriateness of the terms of the proposed injunction, particularly the breadth of restrictions on references to the Plaintiff and contact provisions.
5. The procedural fairness of the hearing and whether the presiding judge should recuse himself due to alleged bias.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant engaged in harassment and misuse of private information by repeatedly publishing messages on Twitter and Facebook referencing the Plaintiff's spent criminal conviction and other private correspondence.
• The Plaintiff has a reasonable expectation of privacy regarding the spent conviction and the Defendant's conduct causes significant distress, alarm, and risk to the Plaintiff's professional and personal life.
• The Defendant's conduct includes posting private and confidential correspondence publicly and tagging the Plaintiff on social media to attract attention.
• The Plaintiff contends that the Defendant breached the initial injunction by disseminating confidential witness statement extracts on a public forum and by continued harassment via direct messages and attempted calls.
• The Plaintiff seeks an injunction to prevent further publication of spent conviction details, broad restrictions on online references, and a non-contact order.
• Despite the Defendant's arrest and bail conditions, the Plaintiff argues a civil injunction remains necessary as police sanctions are not equivalent to court injunction enforcement.
• The Plaintiff requests reporting restrictions to protect the spent conviction details from public disclosure in court reports.
• The Plaintiff alleges procedural unfairness and judicial bias in the conduct of the 11 November 2020 hearing, including failure to disclose an email from the Defendant and hostile judicial questioning.

Defendant's Arguments

• The Defendant denies operating or posting material on the public forum that breached the injunction, suggesting others might have obtained the Plaintiff's witness statement via the Plaintiff's own sharing of a Dropbox link.
• The Defendant justifies her social media posts as expressions of frustration with the Plaintiff's conduct towards others.
• The Defendant requested the Plaintiff block her on Twitter and denies responsibility for some of the disputed publications.
• The Defendant communicated difficulties in accessing the hearing bundle and legal representation due to personal and logistical circumstances.
• The Defendant's bail conditions prohibit contact with the Plaintiff and posting about her, which the Defendant complies with.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the Plaintiff's evidence and the social media messages exhibited, focusing particularly on the Defendant's references to the Plaintiff's spent conviction and the alleged harassment conduct. It noted the Plaintiff's candid disclosure of the spent conviction and her legal training, emphasizing the duty of full and frank disclosure in ex parte applications.

The court recognized the tension between the Plaintiff's Article 8 privacy rights concerning the spent conviction and the Defendant's Article 10 freedom of expression rights. It applied established legal principles requiring an intense focus on balancing these competing rights, referencing the Rehabilitation of Offenders Act 1974 and relevant case law including NT1 -v- Google Inc.

Regarding the proposed injunction terms, the court found Paragraph (b), which broadly prohibited any reference to the Plaintiff online, to be disproportionate and an unjustified interference with the Defendant's freedom of expression. It concluded such a broad restriction would silence the Defendant entirely from commenting on the Plaintiff and was unlikely to be granted at trial.

The court also found that the Defendant's conduct, while unpleasant and sometimes offensive, did not reach the legal threshold of harassment. The messages were largely not targeted at the Plaintiff, and the Plaintiff had not been tagged in most of them, having blocked the Defendant's account early in the dispute. The court emphasized the availability of less intrusive measures such as blocking and the importance of resilience to criticism for public figures.

The burst of attempted contact by the Defendant via telephone and messages on 1 November 2020 was found not to constitute harassment, especially as the Plaintiff did not accept calls and ultimately blocked the Defendant.

The court acknowledged that the Plaintiff's Article 8 rights were engaged regarding publication of the spent conviction details and that the Defendant had not advanced any justification for such publication. However, it found the necessity for an injunction at this stage was undermined by the Defendant's arrest and bail conditions preventing further contact or publication.

The court noted that the injunction sought was a blunt instrument regulating unknown future conduct and that the wide terms of the proposed injunction would impose a significant restriction on the Defendant's rights, including private discussions and legal consultations.

On the recusal application, the court analyzed the procedural history and the email from the Defendant received shortly before the hearing. It found no reasonable basis for a fair-minded and informed observer to conclude there was a real possibility of judicial bias. The court explained that the hearing was a fair re-hearing of the ex parte application with the burden on the Plaintiff to persuade the court to continue the injunction. The questioning of the Plaintiff was appropriate to test the merits and did not demonstrate hostility or prejudice.

Holding and Implications

The court refused to grant the Plaintiff's renewed application for an interim injunction and dismissed the application to extend the ex parte injunction previously granted.

The court held that the Defendant's conduct did not meet the legal threshold for harassment and that the proposed broad restrictions on references to the Plaintiff online were disproportionate interferences with freedom of expression. The court found no necessity to impose an injunction restraining publication of the Plaintiff's spent conviction at this stage, particularly given the Defendant's bail conditions prohibiting such conduct.

The recusal application was dismissed, the court finding no real possibility of bias in the conduct of the hearing.

The direct effect is that the Defendant is not restrained by the court from continuing to reference the Plaintiff on social media subject to existing police bail conditions. The Plaintiff may return to court if evidence of breach of bail or injunction necessity arises. No new precedent was established beyond the application of existing principles to the facts.