England and Wales Court of Appeal (Civil Division) Decisions

A v B & C [2002] EWCA Civ 337 (11th March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(MR JUSTICE JACK)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 March 2002

Lord Woolf CJ: This is the judgment of the Court

THE BACKGROUND

1. The case involves two linked appeals. They relate to four interim judgments which Jack J gave in the same proceedings. The substantive appeal is against the fourth judgment of 10 September 2001 which granted A an interim injunction against B and C. That injunction had been previously granted on 27 April 2001 in different terms by Jack J for reasons which he set out in his first judgment of 30 April 2001. The second appeal is an appeal against the third judgment of Jack J. The third judgment was given on 5 July 2001. That decision reversed his second judgment of 20 June 2001 which had discharged the injunction which Jack J had originally granted on 27 April 2001.
2. A is a footballer with a premier division football club. B is a national newspaper. C is one of two women with whom A, who is a married man, had affairs. The injunction was granted to restrain B from publishing the stories which C and the other woman, D, had sold to B recounting their affairs with A. In using initials to describe the parties we are following the course adopted in the court below to protect the identity of A. D has taken no part in the proceedings.
3. Since the coming into force of the Human Rights Act 1998 (“the 1998 Act”) there has been an increase in the number of actions in which injunctions are being sought to protect the claimants from the publication of articles in newspapers on the grounds that the articles contain confidential information concerning the claimants, the publication of which, it is alleged, would infringe their privacy. Such actions can be against any part of the media.
4. The applications for interim injunctions have now to be considered in the context of articles 8 and 10 of the European Convention of Human Rights (“ECHR”). These articles have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court's approach to the issues which the applications raise has been modified because under section 6 of the 1998 Act, the court, as a public authority, is required not to act "in a way which is incompatible with a Convention right". The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.
5. The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. As the headnote makes clear, in Argyll v Argyll [1967] Ch 302 Ungoed-Thomas J decided that "a contract or obligation of confidence need not be express, but could be implied, and a breach of contract or trust or faith could arise independently of any right to property or contract (other than any contract which the imparting of the confidence might itself create); and that the court in the exercise of its equitable jurisdiction would restrain a breach of confidence independently of any right at law". In Stephens v Avery [1988] 1 Ch 449, Sir Nicholas Browne-Wilkinson V-C made it clear that this approach could be extended to other relationships apart from that between husband and wife, though it would not necessarily apply in the same way.
6. The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account.
7. Actions for breach of confidence are usually brought at short notice and are followed by an immediate application for an interim injunction (as happened here) which has to be heard urgently without adequate time either for preparation or for the hearing of the application. If an interim injunction is to be granted it is essential that it is granted promptly because otherwise the newspaper will be published and then, from the claimant’s point of view, the damage will have been done. Notwithstanding these constraints of time, the applications for injunctions in this class of action are frequently marked by the citation of very large numbers of authorities which the unfortunate judge has to do his best to digest prior to announcing his decision as to where the balance falls in the particular case.
8. In the present appeals the parties have placed before us three lever arch files of authorities. In addition, during the course of the hearing we were handed a number of other domestic and Strasbourg decisions. Finally we have another file which contains what was described as "Press Complaints Commission Material", which includes 17 decisions of the Press Complaints Commission, as well as the Code of Practice of the Commission and a further judgment. It is understandable that, in what is a developing area of the law, citation of authority is necessary, but we would hope that the law has now, at least at the level below the House of Lords, become sufficiently clear to make the citation of authority on this scale unnecessary. This comment is not to be understood as a criticism of the counsel appearing before us on these appeals. They were seeking guidance as to the proper approach to the granting of injunctions in this sort of action. We do, however, hope that as a result of our decision the citation of authorities on this scale will be regarded as unnecessary and not accepted by judges of first instance who have to hear these applications. This action on the part of judges is necessary and part of their responsibilities because of the overriding objective to deal with cases justly in accordance with CPR Part 1.1 (2). The need for control of the excessive citation of authority should be borne in mind in deciding questions of costs since it leads to disproportionate expense which can in turn make litigation beyond the means of the ordinary person.
9. The authorities largely fall into two categories. The first category consists of the decisions of the Strasbourg Court on articles 8 and 10. These decisions are valuable sources of the principles which the articles embrace. The decisions do however tend to repeat the same principles in successive cases in order to apply them to different situations. The citation of a single case may therefore be all that is required. The application of the principles to the facts of a particular situation is largely unhelpful because that is primarily the task of the domestic court. The other category of cases are decisions given in this jurisdiction. If they are authorities which relate to the action for breach of confidence prior to the coming into force of the 1998 Act then they are largely of historic interest only.
10. The citation of authorities on the present scale adds hugely to the costs of litigation which is already inevitably high. It also creates huge problems for the judges hearing the applications, particularly in view of the urgency with which they have to be dealt. In order to assist the parties we now set out guidelines which are intended to assist the judiciary and the parties to deal with the majority of these applications in a more proportionate manner.

THE GUIDELINES

11. We suggest that if judges direct themselves in accordance with the following paragraphs in many cases they will not need to be burdened by copious reference to other authorities:

i) The consideration of this type of application should generally begin with recognition that what is being considered is an interim application for an injunction. This means that whether any injunction is granted at all is a matter of discretion for the judge, to be exercised in accordance with what are now well-established principles which include the need to establish, as we will explain later, that after a trial it is likely that an injunction would be granted after a substantive hearing, while recognising that the grant or refusal of an interim injunction could well determine the outcome of the entire proceedings.

ii) The fact that the injunction is being sought to protect the privacy of the claimant, and if the injunction is not granted, the claimant may be deprived of the only remedy which is of any value is a relevant consideration. However, this consideration has to be weighed against the defendant’s rights of freedom of expression. Even before the 1998 Act this would have been an important consideration. Its importance has been enhanced by section 12 of the 1998 Act. The relevant provisions of section 12 are:

“12. (1) This section applies if the court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –

(a) the extent to which –

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.”

iii) As to the word "likely" in section 12(3) useful guidance is provided by Sir Andrew Morritt VC in Imutran Ltd v Uncaged Campaigns Ltd [2002] FSR 20. He said of section 12:

“17. Counsel for the defendants submitted that the requirement of likelihood imposed a higher standard than that formulated in American Cyanamid. I did not understand this to be disputed by counsel for Imutran. He submitted that whatever the standard was his case satisfied it. Theoretically and as a matter of language likelihood is slightly higher in the scale of probability than a real prospect of success. But the difference between the two is so small that I cannot believe that there will be many (if any) cases which would have succeeded under the American Cyanamid test but will now fail because of the terms of s.12(3). Accordingly I propose to apply the test of likelihood without any further consideration of how much more probable that now has to be.”

There is no conflict between section 12 (3) and the Convention. (See Douglas v Hello! Ltd [2001] QB 967; Keene LJ paragraph 150)

iv) The fact that if the injunction is granted it will interfere with the freedom of expression of others and in particular the freedom of the press is a matter of particular importance. This well-established common law principle is underlined by section 12 (4). Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. Here we would endorse the approach of Hoffmann LJ in R v Central Independent Television PLC [1994] Fam 192 at p.201-204, where he said:

“publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what Judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which Government and Judges, however well motivated, think should not be published. It means the right to say things which “right thinking people” regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute… the principle that the press is free from both Government and judicial control is more important than the particular case.”

v) The fact that under section 12 (4) the court is required to have particular regard to whether it would be in the public interest for the material to be published does not mean that the court is justified in interfering with the freedom of the press where there is no identifiable special public interest in any particular material being published. Such an approach would turn section 12 (4) upside down. Regardless of the quality of the material which it is intended to publish prima facie the court should not interfere with its publication. Any interference with publication must be justified.

vi) It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection. This means that at first instance it can be readily accepted that it is not necessary to tackle the vexed question of whether there is a separate cause of action based upon a new tort involving the infringement of privacy.

vii) Furthermore in the majority of cases the question of whether there is an interest capable of being the subject of a claim for privacy should not be allowed to be the subject of detailed argument. There must be some interest of a private nature which the claimant wishes to protect, but usually the answer to the question whether there exists a private interest worthy of protection will be obvious. In those cases in which the answer is not obvious, an answer will often be unnecessary. This is because the weaker the claim for privacy the more likely that the claim for privacy will be outweighed by the claim based on freedom of expression. The advantage of not having to distinguish between acts which are public and those which are private in a difficult case is made clear by what Gleeson CJ had to say on the subject in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. He explained the difficulty of distinguishing between public and private information when he said at para. 42:

“[42] There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”

viii) The same is true in cases in which the public interest in publication is relied on to oppose the grant of an injunction. We have already made clear that even where there is no public interest in a particular publication interference with freedom of expression has to be justified. However, the existence of a public interest in publication strengthens the case for not granting an injunction. Again in the majority of situations whether the public interest is involved or not will be obvious. In the grey area cases the public interest, if it exists, is unlikely to be decisive. Judges should therefore be reluctant in the difficult borderline cases to become involved in detailed argument as to whether the public interest is involved. In a borderline case the application will usually be capable of being resolved without deciding whether there is a public interest in publication. In any event, the citation of authority is unlikely to be helpful. The circumstances in any particular case under consideration can vary so much that a judgment in one case is unlikely to be decisive in another case, though it may be illustrative of an approach.

ix) The need for the existence of a confidential relationship should not give rise to problems as to the law. The difficulty will be as to the relevant facts. A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected. (See Lord Goff of Chieveley, in Attorney General v Guardian Newspapers Ltd [No. 2] [1990] 1 A C 109 at 281.) The range of situations in which protection can be provided is therefore extensive. Obviously, the necessary relationship can be expressly created. More often its existence will have to be inferred from the facts. Whether a duty of confidence does exist which courts can protect, if it is right to do so, will depend on all the circumstances of the relationship between the parties at the time of the threatened or actual breach of the alleged duty of confidence.

x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be justified. (See the approach of Dame Elizabeth Butler-Sloss P. in Venables v Newsgroup Newspapers Ltd [2001] 1038 at para. 81) The bugging of someone's home or the use of other surveillance techniques are obvious examples of such an intrusion. But the fact that the information is obtained as a result of unlawful activities does not mean that its publication should necessarily be restrained by injunction on the grounds of breach of confidence (see the Lenah Game decision). Dependent on the nature of the unlawful activity there may be other remedies. On the other hand, the fact that unlawful means have been used to obtain the information could well be a compelling factor when it comes to exercising discretion.

xi) More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other's right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. Here the conflict between one party’s right to privacy and the other party’s right of freedom of expression is especially acute. In situations where the parties are not married (when they are, special considerations may arise) the fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right. While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.

xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 116 5 of 1998. We set out paragraphs 6, 7, 8, 9, 10, 11 and 12 which are in these terms:

“6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know about public figures.

9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.

11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.”

xiii) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others. If there is not a sufficient case for restraining publication the fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable is not relevant. If the contents of the publication are untrue the law of defamation provides prohibition. Whether the publication will be attractive or unattractive should not affect the result of an application if the information is otherwise not the proper subject of restraint.

xiv) Section 12 (4) requires the court to take into account "any relevant privacy code" but it is only one of a number of factors to be taken into account. The Press Complaints Commission Code of Practice provides that:

“It is essential to the workings of an agreed code that it be honoured not only to the letter but in the full spirit. The code should not be interpreted so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it prevents publication in the public interest.

Privacy

(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private life without consent.

(ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.

Note – Private places are public or private property where there is a reasonable expectation of privacy.

Harassment

They must not photograph individuals in private places (as defined by the note to clause 3) without their consent; must not persist in telephoning, questioning, pursuing or photographing individuals after having been asked to desist; must not remain on their property after having been asked to leave and must not follow them.

The public interest

1. The public interest includes:

(i) Detecting or exposing crime or a serious misdemeanour.

(ii) Protecting public health and safety.

(iii) Preventing the public from being misled by some statement or action of an individual or organisation.”

Courts may well find this statement of practice of assistance. While recognising that section 12 (4) was primarily concerned with preserving the freedom of the press regard should be had to the guidance given by Lord Justice Brooke in Douglas v Hello! Ltd at paragraph 94, where he says;

“94. It appears to me that the existence of these statutory provisions, coupled with the current wording of the relevant privacy code, mean that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. A newspaper which flouts clause 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by article 10(2) considerations of privacy. Unlike the court in Kaye v Robertson [1991] FSR 62, Parliament recognised that it had to acknowledge the importance of the article 8(1) respect for private life, and it was able to do so untrammelled by any concerns that the law of confidence might not stretch to protect every aspect of private life.”

xv) However, the court should discourage advocates seeking to rely on individual decisions of the Press Commission which at best are no more than illustrative of how the Press Commission performs its different responsibilities.

12. In the above paragraphs we have attempted to assist courts as to how they should go about the task of holding the balance between the conflicting rights when hearing these applications. We are suggesting that frequently what is required is not a technical approach to the law but a balancing of the facts. The weight which should be attached to each relevant consideration will vary depending on the precise circumstances. In many situations the balance may not point clearly in either direction. If this is the position, interim relief should be refused. We turn to deal with the present case:

THE FACTS

13. We have already indicated the general nature of the relationships between A and C, and A and D. A is married and he and his wife have two children. There is no dispute that A had adulterous relationships with both C and D. There is a dispute as to the detail of the relationships. By bringing these proceedings and obtaining the injunction A hopes to prevent his wife learning of his adultery since if she were to learn of this it could prejudice his marriage and his long-standing relationship with his wife and also indirectly harm his children.
14. There was never any question so far as A is concerned of his leaving his wife for C or D. It does however appear that at different times there was a fairly intimate relationship between, first D and A and then C and A. A held a responsible position in his team and was in the habit of going out drinking from time to time in the evening with fellow members of the team with the object of improving team spirit. It was as a result of this that he became involved first with one girl and then with the other.
15. D worked as a lap-dancer in a bar and A went to the bar in November 1999 and she danced for him. He again visited the bar on 15 December 1999 and again they met. There were meetings from time to time thereafter, including one where they spent the night together in a hotel and on another 21 November 2000 when he stayed the night at her flat. In addition there were a few other meetings which took place over a period of approximately a year, from December 1999 to December 2000. A and D were also in frequent contact on the telephone or sending telephone text messages.
16. A and C first met in late January 2001 at a bar and later the same night at a club. He visited her house on one occasion and on another two occasions they spent the night together at a hotel. In March 2001, there was a further occasion when they spent the night together at her house but C says that she became angry with A because of his lying and on 31 March she posted through the door of A’s parents’ house a transcript of a text message he had sent saying that he was married which she had kept. She indicated that it should be shown to his wife and referred to photographs of him at the second hotel at which they had stayed. This brought that relationship to an end.
17. There were numerous telephone messages between A and C. An analysis of telephone bills showed that between 31 January and 21 April 2001, A called C 438 times. Because a long text message can be transmitted as several short messages, the total number of calls may give an exaggerated picture of the number of communications.
18. In late April 2001 there was a telephone conversation between A and D in which reference was made to the fact that C was involved with a newspaper. D accepts that during that telephone conversation she suggested to A that he give her £5,000 for her story.
19. The next development was the hearing of the application for the injunction which was granted on 27 April 2001. The application was designed to restrain B from printing a story intended to run on 29 April 2001.
20. There are available to this court, as there were available to the judge, drafts of the two articles which B proposed to publish. One concerned his relationship with C and the other concerned his relationship with D. In the judge’s words, much of each is concerned with “the salacious description of the sexual activity between the claimant and C or D. They are both intended for the prurient”.
21. The judge having given his reasons for his decision on 30 April 2001 (the first judgment), on 17 May 2001 B made an application that the injunction which had been granted should be discharged on two grounds. The first was that new legal and factual material made it inappropriate for the injunction to be maintained. The second ground was that A had failed to make a full and frank disclosure in his first witness statement relied on in support of the original application for an interim injunction and therefore regardless of the merits of the original order the injunction should be discharged.
22. B served three witness statements in support of its application, including a second witness statement by Marcus Partington, a lawyer acting on behalf of B, a second witness statement by C and a witness statement by D, all dated 18 May 2001. These witness statements set out in full C’s and D’s versions of their relationships with A. Marcus Partington’s second witness statement exhibited an attendance note from a telephone conversation he had with a member of staff at the Hoole House Hotel on 10 May 2001 during which it was confirmed to him that A had stayed there with D on 10 February 2001. C’s second witness statement sets out, inter alia, the detail of the night she spent with A on 10 February 2001 and the afternoon meetings she had with him on 14 and 15 February 2001. D’s witness statement sets out the detail of the relationship she says that she had with A.
23. In response A filed a second witness statement dated 23 May 2001. In this witness statement A admits meeting up with C on 10 February 2001. It also includes an apology for not having mentioned this in his first witness statement but states that he ‘did not realise that it could be regarded as material’ (para 36). This should be contrasted with his first witness statement in which A says that he did not see C from 9 to 17 February (see para 12-13).
24. Jack J heard the application over three days between 24 and 25 May 2001 and judgment was handed down on 20 June 2001 (‘the second judgment’) in which he discharged the injunction on the basis of A’s material non-disclosure [paras 24-28]. Jack J found that A had deliberately not disclosed his meetings with C between 9 and 17 February 2001 in order to minimise the relationship. In the light of this decision Jack J considered that it was unnecessary for him to consider the substantive ground put forward by B for having the injunction discharged.
25. Following the handing down of judgment on the morning of 20 June 2001, two further witness statements, both dated 20 June 2001 were filed on behalf of A: a third witness statement by A and a witness statement by Gareth Dando, the solicitor who had prepared A’s second (but not his first) witness statement. These witness statements sought to explain the discrepancy between A’s first and second witness statements in relation to the meeting with C of 10 February 2001.
26. A applied to Jack J to consider the new evidence and to reconsider his judgment on two grounds. First that the judge had misunderstood A’s evidence in his first and second witness statement. Secondly that in the light of the further evidence, Jack J’s findings of fact were wrong and the decision to discharge the injunction ought to be reversed.
27. Jack J invited the parties to provide written submissions and oral submissions were also made in a telephone hearing by Counsel for both sides on 27 June 2001. In the light of these submissions Jack J delivered his judgment dated 5 July 2001 (‘the third judgment’) in which he held that he had jurisdiction to re-open his second judgment, that the exceptional circumstances of the case meant that he ought so to do, that the new evidence was simply explanatory and ought to be admitted and that in the light of that new evidence the injunction restraining B should be re-imposed. It is this decision which forms the basis of one of B’s appeals (‘the procedural appeal’).
28. Having made this decision, B’s application to set aside the injunction on the merits, which had not needed to be decided on 20 June 2001, fell to be considered. Jack J reserved judgment on this application.
29. On 10 September 2001 Jack J delivered his judgment on B’s application to set aside the injunction on the merits (‘the fourth judgment’). In this judgment Jack J re-imposed the injunction against B in narrower terms than previously. In doing so he held that:

•    The law affords the protection of confidentiality to facts concerning sexual relations in marriage (Argyll v Argyll [1967] Ch 302) and in the context of modern sexual relations, it should be no different outside marriage (para 56);

•    It was a breach of confidence for C and D to provide information about their sexual relationships with A to B with a view to publication and it would be a further breach of confidence for B to publish the information (para 59);

•    There is a substantial distinction between communication of information to family and friends and communication of information to the press (para 60);

•    Aspects of A’s relationships with C and D were conducted in public, but the fact that they were having sexual intercourse and the detail of that intercourse were not known by anyone other than the participants. The information is therefore not in the public domain and is capable of protection (para 63);

•    Section 12(4) of the Act 1998 requires the court to have particular regard to the importance under the ECHR of Article 10 (para 64);

•    Article 10(2) places restrictions on freedom of expression which includes breach of confidences. Any such restriction must be necessary in a democratic society, inter alia, for the protection of the rights of others, or for preventing the disclosure of information received in confidence (para 65);

•    In this case A has a right to respect for his private life. C and D as participants have not received information in the literal sense, but giving the words a purposive construction in the light of Article 8(1), they are to be treated as having received the information as the events occurred (para 65);

•    There is a pressing social need for protection of a person’s private life (para 66);

•    There is no countervailing public interest in the publication of the proposed articles by B. The public interest is to be interpreted in the sense of being in the interests of the public, approximating to public benefit. A is only a public figure to the extent that he is a professional footballer. He has not courted publicity or laid his life open to public scrutiny (para 67);

•    In accordance with the judgment of Brooke LJ on the application of s12 (4) of the 1998 Act and Article 10 in Douglas v Hello! [2001] QB 967 A is likely to succeed at trial in establishing that his right to privacy should prevail over the newspaper’s right to freedom of expression;

•    The discretion of the court to award an injunction should be exercised;

•    In respect of a free-standing right of privacy, in the light of the finding on breach of confidence and Butler-Sloss P’s judgment in Venables v News Group Newspapers Ltd [2001] Fam 430, the views expressed in the first judgment should be revisited and no view is now expressed.

30. It is this judgment which forms the subject matter of the second appeal (‘the substantive appeal’).

THE PROCEDURAL APPEAL

31. B makes the procedural appeal with the permission of Rix LJ against the third judgment of Jack J in which he reconsidered and reversed his second judgment.
32. It is accepted by B that there is a jurisdiction in the court which enables the judge to reconsider and if necessary reverse a judgment order during the period between the delivery of the judgment and the moment when the order is sealed or otherwise perfected. However, it is argued that this jurisdiction is an exceptional jurisdiction and could not appropriately be exercised in this situation. It is argued that it was wrong to allow A to introduce further evidence subsequent to the second judgment being handed down. It is submitted that A was represented by leading and junior counsel, he had ample opportunity to consider the evidence he placed before the court and the issue of A’s non-disclosure had been raised at the end of the hearing on 27 April 2001 and also taken up in correspondence by B’s solicitor from 1 May 2001 onwards. It could not be suggested that A’s further evidence was not available at the time of the hearing and while A’s third statement explained his failure to deal with the events of 14 and 15 February 2001 in his first witness statement no explanation was given for his failure to deal with these events in his second witness statement. The evidence was certainly not capable of properly being described as fresh evidence.
33. A contends in broad terms either the judge’s third judgment was correct or, if it was not, his second judgment of 20 June 2001 to discharge the injunction was wrong and this court should give permission for the fresh evidence to be readmitted.
34. We did not hear oral argument on the procedural appeal. Time allocated to the appeal was exhausted in considering the substantive appeal. It would have probably extended the hearing of the appeal by at least a day and possibly two days if we had heard the matter argued fully. However, we are urged to give a decision on the procedural appeal for two reasons. First it is contended that there are issues of principle involved and secondly it could be relevant on the question of costs.
35. Considering the circumstances in which he had to give his decisions, Jack J dealt with all the arguments which the parties advanced before him at the different hearings with commendable conscientiousness. We are particularly appreciative of his willingness to hear argument over the telephone so as to accommodate the parties. We are nonetheless extremely concerned about what is likely to be the scale of the costs involved in this litigation so far. Whatever the scale of A’s means, neither he nor B were entitled to conduct the proceedings in a disproportionate manner and the judge should have been astute to prevent this happening. Despite the judge’s efforts the issues have been dealt with in a manner which bears no relation to the significance of what was at issue.
36. In relation to each application, in the forefront of the judge’s mind should have been the fact that he had originally given a decision on an interim application. It is true, as we have indicated already, his interim decision could have been the end of the proceedings. However, he was aware that there were issues of fact which could only be resolved satisfactorily at a hearing of oral evidence and although A indicates he would have preferred to be cross-examined this was never a viable option.
37. In the circumstances, the judge’s approach should have been one where unless there are circumstances which justify this, such as a defendant has had no proper opportunity to be heard, the parties either accept a decision or appeal. We do not underestimate the importance in appropriate circumstances of a court taking a firm view about non-disclosure in an interim application. However, the matters of non-disclosure which were being relied upon by B for setting aside the fist judgment of the 30 April 2001 were not of any particular relevance. The number of occasions that A met C and D and the number of occasions upon which he may have committed adultery were of marginal, if any, relevance to the substantive decision. We would have expected many judges to have taken the view, having considered the nature of the application, that it was one which could have been disposed of summarily without the disproportionate expenditure of costs. If it was to be resolved, it would be more appropriately resolved at a speedy trial.
38. Having been persuaded to deal with the application and having granted it, the subsequent events in our judgment were the consequences of the inappropriate initial decision. We understand why the judge was persuaded to have second thoughts, and his reasons for coming to the decisions which he did, but the resulting decisions are hardly an example of the efficient handling of legal proceedings.
39. Behind the parties’ reasons for asking us to give a decision on the individual steps which were taken is apparently the belief that there are points of principle involved. These are as to when a decision can be reconsidered and when additional evidence is or is not admissible. In a case where an interim injunction has been granted, we reject the suggestion that there are technicalities which require one outcome or another. Each application has to be decided on its merits as to which the only guidance which is required is that contained in Part I of the CPR. On this aspect of the appeal the parties had prepared a core bundle of 11 authorities, but we do not consider that they throw any decisive light on the very different issues that are before us.
40. Jack J had jurisdiction to come to the decisions he did which resulted in his having to give his four judgments, but we consider he was wrong to set aside his original decision to grant the injunction of 27 April 2001, even if there were circumstances which meant it was reasonable to have a further hearing before Jack J; as to which we make no finding, and that all his subsequent decisions were tainted by this decision. However, in view of our conclusions, as to the substantive appeal, we are not prepared to go into academic questions as to which of the procedural appeal should be allowed or refused.

THE SUBSTANTIVE APPEAL

41. The injunction which was granted in consequence of the fourth judgment was different from that originally granted. The main provisions were contained in paragraphs two and three of the order and were in these terms:

“2. Until after judgment in this action or further order in the meantime, the First Defendant must not publish or disclose information concerning the facts:

(a) that the Claimant was having sexual relations with C and with D;

(b) relating to the sexual intercourse and other private sexual conduct which occurred with C and with D.

3. Until after judgment in this action or further order in the meantime, the Second Defendant must not publish or disclose any of the said information to any person with a view to its publication in the media.”

42. The order makes it clear that the injunction on B is wider in its application than that on C which prevents her from making disclosure with a view to publication in the media. C could for example inform A’s wife of their adultery. B contends that the terms of the injunction indicate its inappropriate nature. We recognise that the terms are unusual but do not attach any particular significance to this, though it does illustrate the difficulty involved in restraining publication.
43. Mr Spearman QC subjected Jack J’s fourth judgment to detailed criticism. We would not accept all the criticisms but we do detect important flaws in his approach. These are as follows:

i) Jack J makes no reference to the fact that any interference of the court by way of an injunction has to be justified. His approach is to assume that, as A has a right to privacy with regard to his relationship with C and D, it is in order to restrain the proposed publications unless B can show that there is a public interest in what it is proposed to publish.

ii) Jack J (paragraph 56) appears to regard A as being entitled to the same protection in respect of his transient relationships with C and D as would be available to facts concerning “sexual relations within marriage”. Thus Jack J states, undoubtedly correctly, that confidentiality applies to facts concerning sexual relations within marriage but then adds that “in the context of modern sexual relations, it should be no different with relationships outside marriage”. This approach is objectionable because it makes no allowance for the very different nature of the relationship that A had, on his own account, with C and D from that which would exist within marriage. Quite apart from the recognition which the law gives to the status of marriage, there is a significant difference in our judgment between the confidentiality which attaches to what is intended to be a permanent relationship and that which attaches to the category of relationships which A was involved with here. We would refer here to a judgment of Ouseley J, Theakston v MGM Limited [2002] EWHC 137 (QB) paras 59 and 60:

“59. I consider it impossible however to invest with the protection of confidentiality all acts of physical intimacy regardless of circumstances. I consider it artificial to draw a line at full sexual intercourse in the context of confidentiality, such that anything short of that is not confidential. Whilst the degree of intimacy is a very relevant factor, it cannot be taken in isolation from the relationship within which the physical intimacy occurs and from the other circumstances particularly the location. I do consider Jack J is right to point out that the protection of confidentiality in relation to any particular set of circumstances is also affected by the nature of the person to whom disclosure is proposed to be made, whether to partner, friend or lawyer or to the press for wider publication. The impact of disclosure on others, for example the children of a relationship may also be relevant to the very existence of confidentiality.

60. Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away.”

iii) Furthermore, although again we would not go so far as to say there can be no confidentiality where one party to a relationship does not want confidentiality, the fact that C and D chose to disclose their relationships to B does affect A’s right to protection of the information. For the position to be otherwise would not acknowledge C and D’s own right to freedom of expression.

iv) Jack J (paragraph 59) did not apparently regard a disclosure by C and D to their friends as being objectionable but only publication to the media. This approach ignores the importance to be attached to a free press.

v) Jack J also appears in his first judgment to have been influenced by the need to not only protect A but his family as well. At the end of his judgment, he states “but if it is published the damage to the claimant and his family is done and will be difficult to quantify in terms of money”. The judge should not, in our view, assume that it was in the interests of A’s wife to be kept in ignorance of A’s relationships. This is an issue on which the court is not in a position to reach a judgment.

vi) Again Jack J rejected any question of there being a public interest in B’s proposed publications. Ignoring, as one must, the literary quality of what it was proposed to publish, it is not self-evident that how a well-known premiership football player, who has a position of responsibility within his club, chooses to spend his time off the football field does not have a modicum of public interest. Footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example. While Jack J was right to say on the evidence which was before him that A had not courted publicity, the fact is that someone holding his position was inevitably a figure in whom a section of the public and the media would be interested.

44. Although the criticisms which we make of the approach of Jack J are not individually of great significance, collectively we do believe they resulted in his coming to a wrong decision. The degree of confidentiality to which A was entitled, notwithstanding that C and D did not wish their relationships with A to be confidential, was very modest.
45. Relationships of the sort which A had with C and D are not the categories of relationships which the court should be astute to protect when the other parties to the relationships do not want them to remain confidential. Any injunction granted after a trial would have to be permanent. It is most unlikely such an injunction would ever be granted.
46. On an issue which depends to such a substantial extent on the discretion of the judge, his decision is entitled to a considerable degree of deference from an appellate court. However here, it can be shown there are significant flaws in Jack J’s approach and we are satisfied that his decision is wrong.
47. Ouseley J in Theakston v MGM Limited [2002] EWHC 137 (QB) made reference to this case saying that if the relationship between A and C and D was entitled to confidentiality “that degree of protection represents to my mind the outer limit of what is confidential”. We do not go so far as to say the relationships of the class being considered here can never be entitled to any confidentiality. We prefer to adopt Ouseley J’s view that the situation is one at the outer limits of relationships which require the protection of the law. The fact that it attracts the protection of the law does not mean, however, that an injunction should be granted to provide that protection. In our view to grant an injunction would be an unjustified interference with the freedom of the press.
48. Once it is accepted that the freedom of the press should prevail, then the form of reporting in the press is not a matter for the courts but for the Press Commission and the customers of the newspaper concerned.
49. In relation to certain communications between A and C and D, A could be in a position to contend that their publication would constitute a breach of copyright. Restraining B in respect of the limited area to which the law of copyright would apply would serve no purpose if that was the only relief granted to A, and so the claim based on copyright is accepted as being of no practical significance.
50. We set aside the injunction and allow this appeal.
Order: Appeal allowed; injunction set aside; respondents to pay 2/3 appellant's costs here and below; interim payment £10,000 on account; leave to appeal to the House of Lords refused; respondents to have 2 weeks to file petition to the House of Lords; stay for a further week; liberty to respondents to apply on paper and on notice. (Order does not form part of approved judgment)