In the recent case of BHX v GRX, the High Court considered a claim for defamation, malicious falsehood, misuse of private information and harassment in relation to matters that were also the subject of ongoing proceedings in the Family Court.

The court therefore imposed reporting restrictions, and the parties’ identities were anonymised. Emily Cox and Toby Atkinson look at this case in more detail.

Background

The claimant in the proceedings has autism. He was arrested in 2016 and investigated by the police on suspicion of grooming a child under the age of 16, but no charges were brought and he maintained his innocence. He alleges that his sister supported him and promised not to tell anyone about the arrest.

The claimant’s sister and her husband subsequently asked him not to post pictures of their children on social media. When he did not comply, they restricted his access to their children. This upset the claimant, who issued an application in the Family Court pursuant to section 8 of the Children Act 1989, for a Child Arrangements Order to permit him to re-establish contact with the children.

Defamation and malicious falsehood

In parallel, the claimant alleged that the defendants had made statements to “people in social circles known to [him]” in order to cause maximum impact to his reputation. These statements alleged that the claimant was a paedophile and had sexually abused his sister, the first defendant. The claimant specifically referenced the words used in a text message sent by the first defendant to her father (relevant in the defamation claim) and a written statement made by the defendants’ solicitor in the family proceedings (relevant to the malicious falsehood claim).

Mr Justice Nicklin dismissed the defamation claim on the basis that the publication of the text message by the first defendant to her father did not cause nor was likely to cause serious harm to the claimant’s reputation. Their father did not repeat or republish the message, and the fact that he clearly referenced the claimant’s disability in his reply demonstrated that the message caused no reputational harm.

The malicious falsehood claim included statements made to the defendant’s solicitors, the Family Court, the Children and Family Court Advisory and Support Service, a family friend and unknown third parties. Mr Justice Nicklin stated that this claim was bound to fail, as the claimant had not pleaded any basis on which he could demonstrate that the publication of the text caused him “special damage”, or that it was more likely than not to cause him pecuniary damage. The part of the claim regarding the written statement made by the defendants’ solicitor was struck out as it was made during court proceedings and therefore protected by immunity.

Misuse of private information

The claim for misuse of private information was that the defendants allegedly used information relating to the claimant’s arrest and the allegation of sexual assault against the first defendant to suggest that the claimant was a paedophile and that the complaint that led to the claimant’s arrest was true. Part of the claim was that letters sent by the claimant to the defendants in the course of the family proceedings were marked private and confidential and that they were “unlawfully divulged”.

The claim was again struck out in its entirety. Mr Justice Nicklin said that the claim was “bereft of details” regarding the private information that was allegedly disclosed. He also held that even though it was possible that this lack of particulars could be remedied, disclosures made by a daughter to her parents relating to litigation brought by her brother concerning her children would be likely to fall comfortably within the defendants’ right to freedom of expression under Article 10 of the European Convention on Human Rights.

Harassment

The claim for harassment also lacked sufficient details to establish a cause of action and was dismissed. The judge looked at the history of the relationship between the parties and said that he did not consider that the claimant had a real prospect of demonstrating that any of the defendants’ conduct would clear the threshold of seriousness required to make out harassment.

Comment

Partner Emily Cox comments:

“This case is the latest example of how family disputes, particularly those involving children, can give rise to defamation and breach of privacy issues, and how information can be wielded in a manner intended to cause trouble for the opposing party. While emotions are running high, the temptation for one party to use personal information against another can be hard to resist.

“It is important to remember that these types of cases are extremely fact-specific. Even though this claim failed, with some factual differences and greater specificity in the particulars, the claimant may have succeeded.”

Partner Toby Atkinson comments:

“Parties to proceedings in the Family Court should also be careful not to publish or post any information or comments in any way related to their case on any social media or other websites, such as Facebook or Twitter. Such information may be used in evidence in any court proceedings.”

This article was written by our Senior Paralegal Palomi Kotecha

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