TRK & BVP v ICM 2016] EWHC 2810 (QB): privacy, misuse of private information, injunctive relief

November 15, 2016 |

Recently Justice Warby in TRK & BVP v ICM 2016] EWHC 2810  granted an injunction preventing a jilted lover from disclosing personal information he had acquired from his ex by means of hacking into her computer system.



TRK, is a married man.  BVP, is his lover. She is not married [1]. WRK is married to TRK and knows nothing of her husband’s infidelity [6].

The extra-marital relationship began in March 2016 and ended in  July 2016. BVP then entered into a sexual relationship with the defendant, ICM. In September, the relationship between TRK and BVP started up again while BVP carried on seeing ICM. For two months she was seeing both men [1].

On Thursday 27 October 2016 TRK and BVP went out to see a film together at a cinema. [7] Later that night  BVP ended the relationship with ICM.  On that same day ICM found out from another source that she had been seeing someone else [2].

The following morning ICM told BVP that a work colleague of his had seen her going to the cinema with another man and accused her of seeing someone else, which she (falsely) denied.

At 23:18 on 27 October there was an unsuccessful attempt to access her Microsoft email account. This was done using the Chrome browser on an Android device from a specified IP address. ICM uses an Android device.  At 09:43 and 11:24 on 28 October there were successful sign ins to BVP’s account from the same IP address, also using an Android device and the Chrome browser. A further six successful sign ins took place from the same address using the same device and browser in the course of the afternoon and evening [7].

On the evening of 28 October ICM began what turned into a lengthy correspondence with BVP over WhatsApp lasting several days. The court summarised the exchanges as being:

  • him informing her he had “started drinking already”.
  • him wishing the claimants well, naming TRK and expressing the hope that he would leave his wife;
  • ICM being “tempted to” to send an anonymous email to TRK’s  wife.

BVP had never disclosed the fact of her relationship with TRK, let alone his name or that of his wife. BVP obtained an activity report  and changed her password on 30 October [8].

On 30 October, BVP accused ICM of hacking her email account. He denied it and gave what the judge described as “a variety of false or at least implausible explanations of how he had obtained the information. Among his suggestions were guesswork, Google searches, and detective work using information on Facebook.” [9]

At 09:13 on 30 October TRK received an email from ICM to his work email address.  ICM  threatened to tell WRK about his infidelity unless TRK did so himself. The following day ICM asked BVP to “give me one good reason why I shouldn’t tell [WRK]” and said that it was “time to find a postbox”. BVP read this as meaning that ICM intended to send copies of the emails by post to WRK. On 31 October  one or more third parties made attempts to inform WRK, by other means. TRK’s evidence was that he does not believe this led to her becoming aware of the truth.[10]

A warning letter was sent to ICM on 1 November by the Claimants’ solicitors. Rather than reply to the letter ICM  sent BVP a long email admiting to “looking at someones private correspondence”, apologising for his actions, saying that he never “had proof of the affair” and claiming that he “was never going to send anything to [WRK]” [11].

On Friday, 4 November 2016 TRK and BVP sought injunctions restraining ICM from engaging in harassment of them, and from making disclosures which they alleged would represent a misuse of their private information.  They alleged ICM hacked into BVP’s email, read their private and confidential correspondence, acquired their private information, wrongfully used that information to harass both of them and threatened wrongfully to disclose such information to WRK [2].

The application was made without notice to ICM, for fear that if notified in advance he might do the very things the claimants sought to restrain. The claimants sought orders for a hearing in private, anonymity, and restrictions on access to the court file [3].


The Court found

(1) the application was properly made without prior notice;

(2) it was not necessary to hold the hearing in private; it was possible to conduct it publicly, providing all concerned were discreet in making public any identifying details, and appropriate orders were made for anonymity and limiting access to the court file ; that is how the matter proceeded;and

(3) on the available evidence, the likelihood that the claimants would obtain injunctions at trial in the terms they sought was sufficient to justify the grant of short-term injunctions, pending a hearing on notice to the defendant. The injunctions were granted for 7 days.

The basic principles guiding the court were , at [12] & [13]:

  1. ss 6 and 12 of the Human Rights Act 1998 (“HRA”),
  2. Articles 6, 8 and 10 of the Convention,
  3. ss 1, 3 and 7 of the Protection from Harassment Act 1997 (“PHA”);
  4. relevant authorities, primarily

Cream Holdings v Bannerjee [2005] 1 AC 253

    , in

Re S (A Child) [2005] 1 AC 593


McKennitt v Ash [2008] QB 73

    (CA) and

ASG v GSA[2009] EWCA Civ 1574

    .regarding whether and if so when it is legitimate to disclose, or to threaten to disclose, private information that reveals the adulterous behaviour of a claimant the authorities including

CC v AB [2006] EWHC 3083 (QB)[2007] EMLR 11


Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)[2008] EMLR 20

    , and

John Terry’s


[2010] EWHC 119 (QB)[2010] EMLR 16



His Honour described, at [14], the main issues for resolution as

(1) was there a justification for hearing the application without notice to ICM? That should only be done if there are compelling reasons: S 12(2) of the HRA.

(2) Was there a real risk that, unless restrained, ICM would continue to write to one or both of the claimants, or to communicate with them in some other way about the matter, or disclose information to WRK?

(3) Is it likely that a court would find at a trial that the claimants are entitled to restrain the behaviour they fear?

At the early stage of a case his Honour regarded these questions as not being easy to answer at such an early stage of the case. He said that it cannot be decided by reference to broad generalities. It must depend on an intense scrutiny of the actual rights that are in play. In those circumstances he found that the prospect of a permanent injunction after a trial was sufficiently likely to justify the short term relief sought [15]. He followed the approach of the Court of Appeal on the interim appeal in ASG [16].

His Honour said that while it is not inevitable he thought it highly likely that the court would find that such access was unauthorised and wrongful. The fact that BVP was “two-timing” ICM would not  provide a justification for “hacking”. Further ICM’s most recent email suggested that he acknowledged that his access was wrongful [20]. And as such all the conduct complained of by these claimants flows from an unauthorised, wrongful act of “hacking” by ICM. Further to allow disclosure, or the continued use of that wrongfully acquired information to harass the claimants with threats of disclosure, would, his Honour stated, be to permit ICM to use such wrongdoing as a springboard [21].

The other factors which the court took into account, at [21], were

(a) the fact that on the face of it ICM’s purpose in making disclosure, or threatening disclosure, appear to be more vengeful than altruistic; he writes of the best interests of WRK, but it is the ventilation of his anger at what has been done to him that seems to be uppermost in his mind; (b) I know relatively little about WRK, or the relationship between TRK and WRK, and its future prospects.

The court was more equivocal by  TRK’s argument that it is his right to decide whether and if so when and how to disclose his infidelity to WRK [17] noting that while  Article 8 conferred rights of autonomy on an individual which include a right to decide who gets to know what about the person’s private life, when, and by what means but those rights are not unqualified and do not exist in a vacuum. While his Honour posited that it would be hard to see any justification for a disclosure to the public he noted that it may be less obvious that a more limited disclosure would be wrongful and that the wife had her own rights under Articles 8 and 10 as does ICM. Warming to the subject he noted that a person who finds out that a married individual has been unfaithful to his or her spouse may, in some circumstances, have every right to inform the wronged spouse, who may have a right to know that information [18]. And if the person came by the information by observing behaviour in a public place, for instance, the court might be reluctant to intervene to prohibit disclosure. Another factor the court considered was if the person acted out of disinterested concern for the well-being of the ignorant spouse [18]. These, and other factors might weigh against the grant of an injunction.

The key here, was the unauthorised disclosure of correspondence.  His Honour stated, at [19]:

“.. it is improbable that the court would consider it legitimate to disclose the details of the unfaithful spouse’s correspondence. Still less if access to that correspondence was only gained surreptitiously, without consent. Moreover, on the evidence before the court in this case at the present time, ICM only confirmed the fact of the relationship between BVP and TRK by gaining access to the email account of BVP. It is only via such unauthorised access that he came to know the identity of TRK, the identity of WRK, and the contact details of those two.


This decision does make great inroads into the law.  The principles regarding the grant of injunctions are reasonably well settled in the United Kingdom.  Similarly the issues relating to the protection of sexual proclivities of claimants is not virgin, eh um, territory as far as consideration by the court is concerned.  The case is more notable for considering the issue of a defendant hacking into another person’s system. The court was able to resolve the application and grant the application on the basis of that interference without having to way the various parties rights under Article 8.

The case may have some resonance in Australia given its consideration of the issue of hacking in acquiring the information.  It is interesting to note that in October the Supreme Court of Western Australia granted injunctive relief in a defamation proceeding in DOUGLAS -v- McLERNON [No 4] [2016] WASC 320.

One Response to “TRK & BVP v ICM 2016] EWHC 2810 (QB): privacy, misuse of private information, injunctive relief”

  1. TRK & BVP v ICM 2016] EWHC 2810 (QB): privacy, misuse of private information, injunctive relief | Australian Law Blogs

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