Misuse of private information and harassment: score draw between escort and her solicitor client

In the case of AVB v TDD [2014] EWHC 1442 (QB) the Claimant, a solicitor, succeeded, in part, in claims for misuse of private information and breach of confidence, but saw claims in harassment and breach of contract dismissed, whilst the Defendant, a sex worker, succeeded in a counterclaim for harassment.  Neither party was awarded damages. 

The facts of the case are many and convoluted.  The Claimant was a divorced solicitor in his sixties.  The Claimant was a Chinese student in her twenties, who used sex work to fund her studies.  Both were well educated.  The two met in March 2012 when the Claimant booked the Defendant’s services through an escort agency.  A stormy relationship ensued which, on any view, went well beyond the mere provision of sexual services by the Defendant.  The two attended the theatre and other events together and the Claimant introduced the Defendant to a number of friends and relations.  The Judge at trial took the view that each party deceived the other with false assurances as to their intentions.  The Claimant sued the Defendant in May 2013, in misuse of private information and breach of confidence, on the basis of emails, texts and Facebook messages she had sent to his colleagues and family, concerning his sexual relationships, both with her and other parties.  Some of the information had been taken from the Claimant’s laptop and USB sticks.  The Claimant also sued in harassment on the basis of this conduct, and in breach of contract on the basis of a confidentiality agreement which the two had entered into in the course of the relationship.  The Defendant counterclaimed in harassment, arguing that the Claimant had stalked her and behaved threateningly towards her. 

The Judge found that the Defendant’s disclosures concerning the relationship between the parties, and the Claimant’s alleged failure to pay sufficiently for the Defendant’s services, did not amount to a misuse of private information or breach of confidence – the fact of their relationship had not been kept entirely private and a duty of confidence may be limited where disclosure is necessary for the protection of interests (in this case the Defendant’s interest in complaining about non-payment), as such the Claimant could not have a reasonable expectation of privacy.  However, the Claimant had had a reasonable expectation of privacy in relation to information about his family and other people he had relationships with.  The claim for harassment was rejected – the Defendant’s behaviour had been a reaction to the Claimant’s own abusive behaviour and could not be said to be oppressive of the Claimant.  The Court found that the confidentiality agreement between the two must be unenforceable on grounds of public policy as it would have removed the Defendant – a prostitute’s – right to complain to third parties about exploitative treatment.  The Judge upheld the Defendant’s counterclaim in harassment, finding that the Claimant had been exploitative and manipulative and made threats.

Whilst the Claimant was entitled to an injunction to prevent further disclosures relating to his family and other aspects of his personal life, he was not awarded damages, as the Judge found that whilst he had experienced some embarrassment, his own course of conduct suggested he had suffered no real distress.  The Defendant was also not entitled to damages as her conduct suggested that the distress she had suffered was only passing.  If either had suffered any enduring distress, they would have ceased entirely to have anything to do with the other.

The Judgment is a warning to warring litigants who are both deserving of reproach.  The Court will not award damages where it finds that no real, or enduring, distress has been suffered.  However, whilst observers may feel that the findings of the Court were appropriate on the instant facts, a number of questions are raised, in particular whether the fact that a relationship may in part exist in public, means that an expectation of privacy must be unlikely.