Why the ‘superinjunction’ failed in the case of the secret Thai wife

A recent case of a wealthy American concealing a secret Thai family shines a light on how the anonymity order in law can be misused, writes Rory Lynch

A wealthy American married man’s attempt to use privacy law to conceal the existence of his Thai lover and their triplets was ruled as an abuse of process by Mr Justice Nicklin in the recent case of Higinbotham v Teekhungam and another [2018] EWHC 1880 (QB).

This case is of interest as, although private information such as affairs and other indiscretions can be protected by privacy law (usually via injunctions) if the claimant can prove they have a ‘reasonable expectation of privacy’, a similar attempt in this case was categorically rejected as an abuse of process.

The married man in question had worked for several years in Thailand where he had started an affair with a local woman. They had an unofficial marriage ceremony in Thailand which was attended by a large audience and appeared on local television, in part due to the fact that the couple had conceived triplets via IVF which was newsworthy in Thailand at the time.

When the relationship broke down, legal proceedings were commenced in the US and Thailand: for child maintenance by the Thai wife and harm to reputation by the US wife. The American wife claimed that the humiliation caused by the affair had forced her to resign from various charitable organisations she chaired and had tarnished her high-profile reputation.

The English injunctive proceedings concerned a Facebook page which the Thai wife had created in her American husband’s name which had a profile photo of them together with their triplets on their laps. One of the American husband’s arguments was that the existence of his Thai wife and their triplets was private information and it had always been agreed between the pair that their relationship would be concealed from the American wife (and thus should also be protected by the law of confidence). He also argued that the Facebook profile harmed his reputation.

In rejecting the claim, Mr Justice Nicklin pointed out in firm terms that the existence of the relationship had already been aired on Thai television, disclosed in the US and Thai proceedings and therefore any expectation of privacy was a fallacy, especially considering the US wife had been forced to resign from her work roles due to public knowledge of the affair.

In addition, Mr Justice Nicklin also pointed out that the Facebook page was only online briefly and a number of years before the injunction proceedings were commenced. Interestingly, he also commented that the page had only actually been viewed by a handful of people and was taken offline immediately once complained of. Therefore, the judge concluded that the harm to the claimant’s reputation caused by the page was minimal.

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In a striking finale, Mr Justice Nicklin ruled that the claim was an abuse of process as it had no merit and had wasted the court’s time and resources as well as the Thai wife’s finances which were limited. He also pointed out the sad irony that the publication and expense of this case was more likely to harm the triplets.

The case is a stark reminder that judges will not allow the court process to be abused under the moniker of speculative privacy law or related claims. In a parting shot, the judge removed a previous ‘anonymity order’ which concealed the claimant’s identity, allowing his full name to be published in the judgment. In light of this, anyone subject to a ‘superinjunction’ (where the mere existence of an injunction is concealed) may wish to re-visit their defence.