Brand & Khan obtain continuing "anti-harassment" order against masseuse

29 September 2014. Published by Oliver Murphy, Associate

The High Court has recently granted an extension to an anti-harassment injunction taken out by Russell Brand and Jemima Goldsmith, otherwise known as Jemima Khan (the Claimants), against a masseuse (the Defendant).

In Brand & Anor v Szilvia (aka Sylvie) Berki [2014] EWHC 2979 (QB) (11 September 2014) Mrs Justice Carr outlined the thresholds necessary for a successful application for an "anti-harassment" injunction.

The Facts

The Defendant was hired by Jemima Khan as a birthday present for Russell Brand, whom she was at the time in a relationship with. On the Defendant's arrival at Mrs Khan's home Mr Brand was uncomfortable with the situation and declined her services. The Defendant was driven home and paid her full fee. The Claimants and the Defendant disagree as to what took place at Mrs Khan's home. The Defendant alleges an altercation took place, which the Claimants deny.

Following the visit the Defendant embarked upon a course of conduct in which she contacted various media outlets making a multitude of allegations of serious criminal conduct (including assault) against Mr Brand. Upon requesting an apology from the Defendant, the Claimant's solicitors were accused, by the Defendant, of interfering with her telephone and emails and perpetrating some form of "cyber-attack" on her.

Although Thames Valley Police confirmed that Russell Brand had no case to answer, and Mr Brand and Mrs Khan denied any such conduct, the Defendant continued to make allegations against Mr Brand. Some of the Defendant's allegations were published in the national press and, through a series of Tweets she was able to publicise a petition on her website "To serve justice and to prosecute Jemima Khan and Russell Brand".

Following this series of events the Claimants were successful in obtaining an emergency anti-harassment injunction against the Defendant. This prevented the Defendant from communicating with the Claimants, making any approach or responding to any journalists or publicising any information about her visit to Mrs Khan's home or any allegations connected to it.

The Injunction

The application before Mrs Justice Carr was for a continuation of this injunction under s37(1) of the Senior Courts Act 1981 and CPR 25.1(1)(a).

Mrs Justice Carr set out that for the application to be successful the Claimants had to show:

  1. that on the balance of probabilities they would succeed in a harassment action at trial which involved consideration of the cause of action as set out under the Protection from Harassment Act 1997 (PHA); and
  2. that the balance of convenience lay in favour of an injunction.

The First Test

Under the PHA a person must not pursue a course of conduct which amounts to harassment of another; and which he knows or ought to know amounts to harassment of the other (section 1(1), PHA).

To succeed in an action for harassment it is necessary for the court to ask:

  1. would a reasonable person think that the course of conduct amounted to harassment of the other?; and
  2. if so, was the Defendant in possession of the information which would lead a reasonable person to think that her course of conduct amounted to harassment?

On the current facts Mrs Justice Carr was satisfied that both questions were answered in the affirmative. The Defendant's conduct could fairly be termed oppressive, causing the Claimants alarm and distress and was beyond the level of everyday annoyance that one would be expected to tolerate. Additionally the Defendant was the sole instigator of all the relevant activities and on their face value the allegations were inconsistent and had been embellished over time.

As the Defendant was not able to advance any credible defences it was found on the balance of probabilities that the Claimants would succeed in an action for harassment at trial.

The Second Test

In dealing with the balance of convenience test the Court held that the balance undoubtedly lay in favour of the Claimants.

Mrs Justice Carr was of the opinion that without a continuation of the injunction the Defendant would continue to harass the Claimants; this opinion was informed by the fact that the previous injunction had not prevented the Defendant from continuing to make allegations about the Claimants via social media channels. Further it was clear that damages would not be an adequate remedy for the Defendant's conduct as the allegations were of a very serious nature and had the potential to irreparably damage Mr Brand's reputation.

The injunction will continue indefinitely pending any trial or further order.