COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Lindsay)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE NEUBERGER
NORTHERN & SHELL Plc
|- and -
EDUARDO SANCHEZ JUNCO
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Desmond Browne QC & David Sherborne (instructed by Messrs Addleshaw Goddard) for the Respondents
Crown Copyright ©
|THE BASIC FACTS||1|
|THE ISSUES RAISED ON THIS APPEAL||26|
|THE JUDGMENT ON LIABILITY||29|
|THE ISSUES IN RELATION TO CONFIDENCE AND PRIVACY: THE PRINCIPLES||39-91|
|THE UNITED KINGDOM'S CONVENTION OBLIGATION IN RESPECT OF PRIVACY||47|
|WHAT OBLIGATION IS PLACED ON THE COURTS IN RESPECT OF THE PROTECTION OF PRIVACY?||50|
|THE LAW OF CONFIDENCE||54|
|THE DOUGLASES' CLAIM||92-121|
|DISREGARDING THE OK! CONTRACT, DID THE LAW OF CONFIDENCE PROTECT INFORMATION ABOUT THE WEDDING AS PRIVATE INFORMATION?||92|
|THE EFFECT OF THE LAW OF NEW YORK||96|
|THE EFFECT OF THE OK! CONTRACT||103|
|DID THE LAW OF CONFIDENCE PROTECT THE DOUGLASES' COMMERCIAL INTEREST IN INFORMATION ABOUT THEIR WEDDING?||111|
|OK!'S CLAIM IN CONFIDENCE||122-151|
|DID THE OK! CONTRACT EXTEND TO OK! THE PROTECTION OF THE LAW OF CONFIDENCE IN RESPECT OF THE INFORMATION ABOUT THE WEDDING?||122|
|THE EFFECT OF THE PUBLICATION OF THE PHOTOGRAPHS IN OK! MAGAZINE||138|
|OK!'S CLAIM BASED ON ECONOMIC TORTS: UNLAWFUL INTERFERENCE WITH BUSINESS||152-236|
|INTENTION: OK!'S CASE||159|
|INTENTION: THE JUDGE'S FINDINGS||163|
|INTENTION: CONCLUSIONS IN RELATION TO THE JUDGE'S FINDINGS||166|
|INTENTION: OUR APPROACH TO THE LAW||174|
|INTENTION: CASES ON UNLAWFUL INTERFERENCE AND UNLAWFUL MEANS CONSPIRACY||178|
|INTENTION: INTERFERENCE WITH CONTRACTUAL RIGHTS||194|
|INTENTION: MISFEASANCE IN PUBLIC OFFICE||206|
|INTENTION: DISCUSSION AND CONCLUSION||213|
|CONCLUSION ON OK!'S CROSS-APPEAL||236|
|THE TWO ISSUES ON DAMAGES||237-250|
|LIABILITY FOR LOSSES FROM PUBLICATION IN THE NEWSPAPERS||238|
|THE DOUGLASES' CLAIM FOR A NOTIONAL LICENCE FEE||243|
|THE DISCHARGE OF THE INTERLOCUTORY INJUNCTION||251-259|
Lord Phillips, MR :
This is the judgment of the court, to which all members have contributed.
The basic facts
"MKD and CZJ hereby transfer to OK! the exclusive right to publish…the Photographs (as defined in paragraph 6 below) and the text referred to herein from the date of the Wedding and for nine months thereafter."
"use their best endeavours to ensure that no other media…shall be permitted access to the Wedding, and that no guests or anyone present at the Wedding… shall be allowed to take photographs."
The Douglases also undertook to "use their best efforts" to ensure that their guests did not publish any details of the wedding.
"take all reasonable means to provide such security (approved by OK! magazine) during the entirety of the Wedding proceedings…as is necessary to ensure that third party media…and/or members of the public …are unable to obtain access…in order to minimise photographs… of the Wedding…being made available to third party media."
Clause 17 contained a confidentiality provision, and clause 18 stated that the contract was governed by Californian law.
"The photograph of the bride going down the aisle towards the wedding ceremony on the arm of her father cuts off all of him but his arm. Two show the bride eating, one of which has the groom holding the fork down into her mouth. In one she playfully holds up a cake knife at her husband. In one taken from a very low level she dances, but not with the groom. Another, hopelessly out of focus, shows the bride and groom kissing. The bride's dress is shown to a greater or lesser extent in all six, and parts of the very elaborate wedding cake are visible in three."
- He found that the Douglases were entitled to damages and a perpetual injunction against Hello!, on the grounds that the publication of the unauthorised photographs in this jurisdiction by Hello! constituted a breach of confidence, effectively because the reception was a private event.
- He found that OK! were entitled to damages from Hello! on substantially similar grounds, albeit that the breach of confidence was, so far as they were concerned, more in the nature of a trade secret.
- He rejected OK!'s case against Hello! in so far as it was based on what we shall call economic torts, namely deliberate interference with the business of OK!, or conspiracy to injure either by lawful, or by unlawful, means.
The issues raised on this appeal
The judgment on liability
- On the basis that the wedding was private, the Douglases claim for breach of confidence, a duty, in that circumstance, owed only to them.
- Further, or alternatively, on the basis that the wedding was an event which was exploited for gain, all three claimants claim for breach of confidence, their case being that photographic representation of the events was, in effect, a commercial or trade secret.
- In the further alternative, the Douglases claim for breach of their right to privacy.
- All claimants claim that there was deliberate interference by the defendants with their trade or businesses, by unlawful means.
- All claimants claim that there was a conspiracy by the defendants to injure them by unlawful means.
- All claimants claim there was a conspiracy by the defendants with the predominant purpose of injuring them.
"I see it as appropriate to examine the applicability of the law of confidence on the basis that the Claimants had here a valuable trade asset, a commodity the value of which depended, in part at least, upon its content at first being kept secret and then of its being made public in ways controlled by Miss Zeta-Jones and Mr Douglas for the benefit of them and of the 3rd Claimant. I quite see that such an approach may lead to a distinction between the circumstances in which equity affords protection to those who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity and those whose is not but I am untroubled by that; the law which protects individual confidences and a law of privacy may protect the latter class and provide no reason to diminish protection for the former. So far as concerns OK!, the right to exclusivity of photographic coverage of the wedding was, in contrast with the nature of the confidence as to the 1st and 2nd Claimants, even more plainly a right in the nature of a trade secret."
"In my judgment, and first regarding the Claimants' case as one of either commercial confidence or of a hybrid kind in which, by reason of it having become a commodity, elements that would otherwise have been merely private became commercial, I find the Hello! Defendants to have acted unconscionably and that, by reason of breach of confidence, they are liable to all three Claimants to the extent of the detriment which was thereby caused to the Claimants respectively. "
" the notion of an exclusive contract as a means of reducing the risk of intrusion by unauthorised members of the media and hence of preserving the privacy of a celebrity occasion is a notion that can reasonably be believed in as a potentially workable strategy to achieve such ends."
The issues in relation to confidence and privacy: the principles "The issues in relation to confidence and privacy: the principles"
- (Disregarding the effect of the OK! contract) did the law of confidence protect information about the wedding as being private information? If so,
- Did the OK! contract destroy that protection?
- Did the law of confidence protect the Douglases' commercial interest in the information about their wedding?
- Did the OK! contract have the effect of extending to OK! the protection of the law of confidence in respect of the information about the wedding? If so
- Was that protection lost when OK! published the authorised photographs?
The United Kingdom's Convention obligation in respect of privacy "The United Kingdom's Convention obligation in respect of privacy"
"The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v the Netherlands, judgment of 26 March 1985, Series A no. 91, p 11, ss 23; Stjerna v Finland, judgment of 25 November 1994, Series A no. 299-B, p61, ss38; and Verliere v Switzerland (dec.), no. 41953/98, ECHR 2001-VII). That also applies to the protection of a person's picture against abuse by others " .
"to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one's own image"
What obligation is placed on the courts in respect of the protection of privacy? "What obligation is placed on the courts in respect of the protection of privacy?"
"In this country, unlike the United States of America, there is no over-arching, all-embracing, cause of action for "invasion of privacy"…But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions."
"The essence of the tort is better encapsulated now as misuse of private information."
A little later in his speech he said this:
"17.The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc  QB 195, 202, paragraph 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.
18. In reaching this conclusion it is not necessary to pursue the controversial question whether the European Convention itself has this wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedures. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities. This approach has been adopted by the courts in several recent decisions, reported and unreported, where individuals have complained of press intrusion."
The law of confidence
"…if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose on him the equitable obligation of confidence."
The third requirement was that there had to be an unauthorised use of the information to the detriment of the confider. We would observe that the essential feature creating the duty of confidence was the circumstances in which the information was communicated from the confider to the confidant.
"I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties – often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions "confider" and "confidant" are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by."
"If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available."
"We have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy."
He went on (paragraph 125) to conclude that there was a powerfully arguable case on the existing authorities that the Douglases had a right of privacy that English law would recognise and, where appropriate, protect. Furthermore, section 12 of the Human Rights Act expressly required the court to have regard to Article 10 of the Convention and this, necessarily, brought 'into the frame' Article 8.
"The nature of the subject matter or the circumstances of the defendant's activities may suffice in some instances to give rise to liability for breach of confidence. That approach must now be informed by the jurisprudence of the Convention in respect of article 8. Whether the resulting liability is described as being for breach of confidence or for breach of a right to privacy may be little more that deciding what label is to be attached to the cause of action, but there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned."
"The application for interim injunctions have now to be considered in the context of articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 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 application 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."
"Now the law imposes a "duty of confidence" whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase "duty of confidence" and the description of the information as "confidential" is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called "confidential". The more natural description today is that such information is private"
"Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
He drew attention to the distinction between identifying whether information is private and identifying whether it is proportionate to prevent disclosure of such information, having regard to the competing Convention right of freedom of expression. He suggested that the test of whether disclosure would be "highly offensive to a reasonable person" , advanced by Gleeson CJ when considering the test of what is private in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, paragraph 42, was more relevant to the latter issue.
"Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people."
"If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. So there is normally no need to go on and ask whether it would be highly offensive for it to be published." (paragraph 96)
"The authorities cited to me showed that the Courts have consistently recognised that photographs can be particularly intrusive and have showed a high degree of willingness to prevent the publication of photographs, taken without the consent of the person photographed but which the photographer or someone else sought to exploit and publish. This protection extended to photographs, taken without their consent, of people who exploited the commercial value of their own image in similar photographs, and to photographs taken with the consent of people but who had not consented to that particular form of commercial exploitation, as well as to photographs taken in pubic or from a public place of what could be seen if not with a naked eye, then at least with the aid of powerful binoculars. I concluded that this part of the injunction involved no particular extension of the law of confidentiality and that the publication of such photographs would be particularly intrusive into the Claimant's own individual personality. I considered that even though the fact that the Claimant went to the brothel and the details as to what he did there were not to be restrained from publication, the publication of photographs taken there without his consent could still constitute an intrusion into his private and personal life and would do so in a peculiarly humiliating and damaging way. It did not seem to be remotely inherent in going to a brothel that what was done inside would be photographed, let alone that any photographs would be published."
"A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photographer provides or even if the information revealed by the photograph is in the public domain. It is no answer to the claim to restrain the publication of an improperly obtained photograph that the information portrayed by the photograph is already available in the public domain."
"Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of "ideas", but of images containing very personal or even intimate "information" about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life of even of persecution."
"Miss Campbell could not have complained if the photographs had been taken to show the scene in the street by a passer-by and later published simply as street scenes. But these were not just pictures of a street scene where she happened to be when the photographs were taken. They were taken deliberately, in secret, and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway of the place where the meeting had been taking place. The faces of others in the doorway were pixelated so as not to reveal their identity. Hers was not, the photographs were published and her privacy was invaded."
"A picture is "worth a thousand words" because it adds to the impact of what the words convey; but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like."
The Douglases' Claim
Disregarding the OK! contract, did the law of confidence protect information about the wedding as private information? "Disregarding the OK! contract, did the law of confidence protect information about the wedding as private information?"
"To the extent that privacy consists of the inclusion only of the invited and the exclusion of all others, the wedding was as private as was possible consistent with it being a socially pleasant event."
He further found that Mr Thorpe took the unauthorised photographs surreptitiously in circumstances where he was well aware that his presence at the wedding was forbidden. Finally the judge found that those responsible for purchasing the unauthorised photographs on behalf of Hello! were aware that the taking of the photographs would have involved at least a trespass or some deceit or misrepresentation on the photographer's part.
The effect of the law of New York
"Then these Defendants say there was no wrong done by the law of the place, New York, but, firstly, I cannot see how Mr Thorpe can fail to be regarded as other than having been at least a trespasser by the law of New York and it has certainly not been demonstrated to me that he was not. Secondly, so long as the conscience of the publishers of Hello! is tainted, as I have held it to be, I fail to see how Thorpe's innocence of any breach of local law, even had that been proved to me, should assist them."
The effect of the OK! contract
"were careful by their contract to retain a right of veto over publication of OK !'s photographs in order to maintain the kind of image which is professionally and no doubt also personally important to them. This element of privacy remained theirs and Hello!'s photographs violated it."
Did the law of confidence protect the Douglases' commercial interest in information about their wedding? "Did the law of confidence protect the Douglases' commercial interest in information about their wedding?"
"… whether or not equity imposes an obligation to keep information confidential depends upon a great many factors often unique to the case in which it is said to do so. However, most cases will have certain common constituents, namely, the existence of a body of information which a plaintiff wishes to keep confidential for the protection of some lawful interest of his, a defendant coming into possession of such information in circumstances in which he actually knows (or is fixed by operation of law with knowledge of) or ought as a reasonable person to know the plaintiff intends to be kept confidential, a detriment actual or potential to the plaintiff from publication, the non-availability of such information to the public and the absence of any public interest in disclosure."
OK!'s Claim in confidence
Did the OK! contract extend to OK! the protection of the law of confidence in respect of the information about the wedding? "Did the OK! contract extend to OK! the protection of the law of confidence in respect of the information about the wedding?"
"The Hello! Defendants accept, of course, that trade secrets can be sold and it is common enough in commercial confidence cases for the benefit of the confidentiality to be shared with others. The confidentiality of a trade secret, for example, may be shared between, and enforceable by, the inventor and the manufacturer to whom he had granted licence for the secret to be turned to account."
"The report is not entirely clear as it sometimes speaks of Dosen having acquired information whilst in "their service", i.e. that of Mustad, yet speaks also of what Dosen had learned in the service of his "former master", a reference to Thoring & Co.. The better view, as it seems to me, is that Dosen was never in Mustad's employ and never acquired the relevant knowledge whilst in Mustad's employ. On that footing the case shows that the benefit of a confidence can pass, in that case by purchase from the liquidator of Thoring, and, if that is so, then it is hard to see why it should not be shared between and be enforceable by co-owners or by a successor in title, at any rate where the defendant knew or could be taken to have known of the co-ownership or sharing before acting in breach and where all entitled to the confidence assert it. "
"The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references: knowledge of secret processes, "know-how", confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship."
- The Douglases would procure the taking of colour photographs of the wedding wherever and whenever they chose ('the official photographs') (clause 6).
- The Douglases would procure that they became joint owners of all copyright and any other rights in the official photographs (clause 7).
- The Douglases would provide OK! with approved, and where necessary retouched, photographs, selected from the official photographs ("the approved photographs") (clause 7).
- The Douglases would transfer to OK! the exclusive rights to publish the approved photographs or to authorise others to do so, world wide, for a period of 9 months (clause 2).
- The Douglases would transfer to OK! the exclusive right for a period of 9 months to consent to use their names, voices, signatures, photographs or likenesses in connection with the wedding for advertising purposes (clauses 4 and 5).
- The Douglases would use their best efforts to ensure that neither the media nor anyone else should take wedding photographs (clauses 6 and 16).
- The Douglases would not, for a period of 9 months, authorise publication of any other of the official photographs without prior approval from OK! (clause 12).
- If any third party not licensed by OK! should use one of the Douglases' name, voice, signature, photograph or likeness in connection with the wedding, OK! would, at the written request the Douglases, where possible, pursue all necessary legal action to cause such third party to cease such infringement (clause 13).
"passes no proprietary interest in anything; it only makes an action lawful which would otherwise have been unlawful."
The effect of the publication of the photographs in OK! magazine "The effect of the publication of the photographs in OK! magazine"
"In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Second, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. These consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law mush be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
"However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial lawmaking is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resulting development is consistent with the essence of the offence and could reasonably be foreseen."
The Court went on to conclude at paragraph 43/41 that the decision of the House of Lords withdrawing the husband's immunity was no more than continuing "a perceptible line of case law development" which had "reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law.
OK!'s claim based on economic torts: unlawful interference with business "OK!'s claim based on economic torts: unlawful interference with business"
"A conspiracy to injure by lawful means is actionable where the claimant proves that he has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him, where the predominant purpose is to injure the claimant.
A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so."
"Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful."
"There exists a tort of uncertain ambit which consists in one person using unlawful means with the object and effect of causing damage to another."
It is not in dispute that the tort of unlawful interference exists but the parties are not agreed as to its precise ingredients. In particular they do not agree as to the nature of the 'unlawful means' required or as to the requirement of 'object and effect' in this context. In this latter regard there is an issue as to whether it is necessary to show that the defendant acted with the object or purpose of injuring the claimant and/or that the defendant's acts were in some sense aimed or directed at the claimant. It is, however, common ground (1) that some mens rea or intention to injure is required and (2) that it is not necessary to show that the predominant purpose or intention of the defendant was to injure the claimant.
Intention: OK!'s case
a) an intention to cause economic harm to the claimant as an end in itself;
b) an intention to cause economic harm to the claimant because it is a necessary means of achieving some ulterior motive;
c) knowledge that the course of conduct undertaken will have the inevitable consequence of causing the claimant economic harm;
d) knowledge that the course of conduct will probably cause the claimant economic harm;
e) knowledge that the course of conduct undertaken may cause the claimant economic harm coupled with reckless indifference as to whether it does or not.
A course of conduct undertaken with an intention that satisfies test a) or b) can be said to be 'aimed', 'directed', or 'targeted' at the claimant. Causing the claimant economic harm will be a specific object of the conduct in question. A course of conduct which only satisfies test c) cannot of itself be said to be so aimed, directed or targeted, because the economic harm, although inevitable, will be no more than an incidental consequence, at least from the defendant's perspective. Nonetheless, the fact that the economic harm is inevitable (or even probable) may well be evidence to support a contention that test b), or even test a), is satisfied.
- The judge should have found that Hello! had the deliberate object of causing economic harm to OK! (i.e. that test a) or b) was satisfied) and that this amounted in law to the necessary intention to injure. Alternatively:
- The judge found, or should have found, that Hello! knew that their conduct would inevitably, or alternatively probably, cause economic harm to OK! (i.e. that test c) or d) was satisfied) and that this amounted in law to the necessary intention to injure. Alternatively:
- The judge found, or should have found, that Hello! knew that their conduct might cause OK! economic harm, acted with reckless indifference as to whether they did or not (i.e. that test e) was satisfied) and that this amounted in law to the necessary intention to injure.
Intention: the judge's findings
"79. As he set about arranging the unauthorised photographs into a lay-out for an issue of Hello!, Senor Sanchez Junco well knew that OK! had obtained an exclusive contract for coverage of the Douglas wedding. He knew of Ramey's reputation and the kind of work that Ramey handled and the intrusive systems which paparazzi such as Ramey employed. It was a kind of journalism he and Hello! did not like, he said, and usually tried to avoid. At least a part of the reasons for Senor Sanchez Junco's insistence that Ramey should not be commissioned in advance, was in my judgment, that he, as a cautious man, was uncomfortable in being seen, as a commission would involve, to be procuring the sort of unpredictable and possibly unlawful activity that a paparazzo of Ramey's reputation might get up to. Whilst he would not have known of the specific language used, Sr Sanchez Junco knew that a feature of OK!'s "exclusive" would have been that security arrangements were required by contract so far as was reasonable to ensure that only those invited or duly employed would be present at the wedding and that no photographs were to be taken other than the authorised ones. For example, Hello!'s own pleaded exclusive contract for coverage of the wedding of Gloria Hunniford required reasonable security to be enforced. Such arrangements had to be contemplated by those in the trade as an inevitable concomitant of an "exclusive", certainly where as much as £1m was at stake.
80. It was obvious to him that the photographs were unauthorised. He said in cross-examination that he had no doubt but that the person who did the photographs was trying to hide himself. He was then asked:-
Mr Tugendhat: Did you ask Mr Ramey any questions about how the photographs were taken?
Mr Tugendhat: Is that because you did not care whether they were taken legally or illegally?
Witness: No, it was because I didn't want any information. I didn't want to know anything about it. I wasn't curious about it. I didn't want to know."
Similarly, to Mr Luke, co-ordinating Editor in Madrid, it was a matter of indifference how the photographs had been obtained.
Senor Sanchez Junco knew from his contacts with Mr Burry that the Douglases had been insisting on control over what photographs would be released and his own proposals to Mr Burry of May 2000 had accordingly offered the Douglases full picture approval rights.
81. In my judgment Senor Sanchez Junco knew and ought to have known, as he selected the unauthorised photographs for publication, that what he was doing would or might significantly diminish the benefits which OK! would otherwise derive from its exclusive contract with the Douglases, that it would deny the Douglases the picture approval which he knew they wanted and which he would have expected them to have procured in their contract with OK! and that the taking of the unauthorised photographs, which he had been careful not to commission, would have involved at least a trespass or some deceit or misrepresentation on the photographer's part in order for the photographer to overcome the security arrangements which, in outline, he knew or must be taken to have known to have been in place at a wedding which he had no reason to think was other than private. It was obvious, agreed Sue Neal, Hello!'s Picture Editor at the time, that the photographs had been taken by someone "who had no business to be there." Mrs Cartwright's evidence was that they had to have been taken surreptitiously" (emphasis added).
"245. As for the relevant intent of the Hello! Defendants, in practical terms it is either to be found in Senor Sanchez Junco or it does not exist. As to his intent, his written evidence said:-
"I want to state categorically that there was never an intention to cause damage to any of the claimants – to the first two claimants because we have always treated them in Hello! with deference and sympathy, in accordance with the magazine style. In our 60-year history we have never tried to damage anyone. Therefore, we would not want to do it to people whom we have always treated fairly and objectively in our reports portraying them in the best possible light. With respect to OK! we took it for granted that, without a doubt, they would have a great editorial success, as they had a great exclusive and consequently, the magazine would be sold under excellent conditions as was the case. Our main purpose was to inform our readers about an event which had been publicised all over the media for weeks before the wedding, which shows that this wedding was of interest for the United Kingdom. We did not wish to disappoint our readers. It was never our aim or intention to damage the third claimant, our prime motivation was only to give our readers information on the wedding of two celebrities, about whom, without doubt, our readers expected to read in Hello!.
Other consideration was to defend the interests of our magazine and keep our place in the market. There was little or no monetary incentive in publishing these photographs because the increase in sales was not likely to compensate the costs incurred in purchasing the photographs, changing the edition and airlifting a proportion of the copies from Spain into the UK. However, this is something that every publisher must be prepared to do from time to time and it is a matter of professional pride and an investment in the goodwill of the publication's readership.
246. In his oral evidence Senor Sanchez Junco disavowed having acted in revenge against the Douglases for his not getting the exclusive he so wished; rather he wanted, despite losing the exclusive, to publish an edition that would interest his readers, the event being one which had captured the imagination of the public. His act, he said, was not of revenge but of salvage. He denied having the intention of spoiling OK!'s sales adding:
"my motive was never to spoil the exclusive of OK!. I repeat, I wanted to defend as far as I could my publication …. ."
Mr Tugendhat put this to him:-
"What I am suggesting to you is that in all of this you were driven by your anger and you were intending to do as much damage as you could both to the Douglases and to the publishers of OK!"
Senor Sanchez Junco:
"No. My priority was to save my publication after having, in the light of a very important big loss, and that is that of the exclusive, and I didn't think of the possible damage that I could inflict on Hello! [sic] or the Douglases because the photographs, I never thought that these photographs could be considered to be damaging for the Douglases and that is because photographs published in that way were unlikely to damage the authorised exclusive."
247. Then, referring to an argument which I hold to be not unreasonable, namely that poor photographs in one of the rival magazines could in fact increase the sales of the other which covered the event in a better way, he added, of such a case:-
"In some cases it encourages it. It has happened to me many times and I've never considered it to be that it was a damage which – certainly not a serious one. This supposed damage which I was supposed to have wanted to inflict on OK! wasn't even, in my opinion, clear damage. Maybe it could even help out its exclusive. In any event, I sold a few more, and I believe that OK! sold its exclusive very well."
Ms Koumi, too, gave evidence that poor photographs of an event in one of the rival magazines could increase the sales of the rival that has better ones (though I am not to be taken to be holding that was in fact the case here).
248. Mr Luke, in close contact with Senor Sanchez Junco in Madrid was asked the question:-
"How common, to your recollection, are spoilers by Hello! of OK! exclusives?"
"It is a bit of a misnomer. I would not call it a spoiler because in the case of … . If we go back to the Zeta-Jones wedding, it was the event of the year. It is like one had to cover the outbreak of war because – or would not cover it because Churchill had given his exclusive interview to the Express. We had to cover it in some way. I think "spoiler" is a bit of a misnomer. It is something we have to cover, and if photographs become available you publish them. This is not an attack on your competition, this is because our readers want to know about these events so you go ahead and publish them. If those photographs are made available by an orang utan with a Polaroid, well you publish them."
249. I have not found Senor Sanchez Junco or Mr Luke to be reliable as witnesses but I do accept the evidence they gave on this subject. Whilst I recognise that for a defendant to act out of self-interest does not, of itself, disprove that he had no intent to injure another, here I find on the evidence that there was no intent to injure by unlawful means because there was no intent to injure at all. …."
The judge added in paragraph 260 that no intent of any of the defendants other than Senor Sanchez Junco was proved and that he did not hold Senor Sanchez Junco to have had "any intent to injure the Douglases". Although the judge was there referring specifically to the Douglases, it is plain that his conclusion was the same vis-à-vis OK!.
Intention: conclusions in relation to the judge's findings
"knew and ought to have known, as he selected the unauthorised photographs for publication, that what he was doing would or might significantly diminish the benefits which OK! would otherwise derive from its exclusive contract with the Douglases …"
The judge was not there stating either what was reasonably foreseeable or what Senor Sanchez Junco 'knew or ought to have known', but what he 'knew and ought to have known' (our emphasis). The judge was setting out his conclusion as to Senor Sanchez Junco's actual state of mind, namely that he knew that publication would or might injure OK! because it would or might diminish the benefits which OK! would otherwise derive from the contract.
Intention: our approach to the law "Intention: our approach to the law"
"This is not an area of the law where it can be assumed that a person intends the natural and probable consequences of his actions or omissions – Crofter Hand Woven Harris Tweed Co. v Veitch  A.C. 435 at 444 per Viscount Simon L.C. - so that for this conspiracy to succeed an intent to harm the Douglases on the part of the Hello! Defendants is required to be proved."
If the judge was saying that Viscount Simon was expressing any view about intention in an unlawful means conspiracy, we respectfully disagree because the Veitch case involved a lawful means conspiracy where, by contrast with an unlawful means conspiracy, it is common ground that a predominant object or purpose to injure is required.
Intention: cases on unlawful interference and unlawful means conspiracy "Intention: cases on unlawful interference and unlawful means conspiracy"
"No man, whether trader or not, can however justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction and molestation are forbidden; so is the intentional procurement or violation of individual rights, contractual or other, assuming always that there is no just cause for it … but the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the context of their own trade. To the argument that a competition so pursued ceases to have a just cause or excuse when there is ill-will or a personal intention to harm it is sufficient to reply (as I have already pointed out) that there was here no personal intention to do any other than such as was necessarily involved in the desire to attract to the defendant's ships the entire tea freights of the ports."
"There are in my opinion two grounds only upon which a person who procures the act of another can be made legally responsibly for its consequences. In the first place he will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong. In the second place when the act induced is within the right of the immediate actor and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment if a third party; and in that case according to the law laid down by the majority in Lumley v Gye the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party." (our emphasis)
"As to the vital distinction between Allen v Flood and the present case, it may be stated in a single sentence. In Allen v Flood the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was 'to injure the plaintiff in his trade as distinguish from the intention of legitimately advancing their own interest.'"
Other members of the House made the point that in Allen v Flood there was no question of conspiracy or of coercion.
"So this point of law arises directly: Is an agreement to do an unlawful act actionable at the suit of anyone who suffers damage from it which is reasonably foreseeable? Even though the agreement is not directed at him, nor done with intent to injure him? In discussing this point of law I put aside the many modern cases on conspiracy – in which there is an agreement by two or more to do a lawful act. It is now settled by the House of Lords that such an agreement is actionable if it is done with the predominant motive of injuring the plaintiff and does in fact injure him: see Crofter Hand Woven Harris Tweed Co. Ltd v Veitch  AC 435, where Lord Simon LC said, at p 445: 'Liability must depend on ascertaining the predominant purpose. If that predominant purpose is to damage another person and damage results, that is tortuous conspiracy'. Here we are concerned with a different problem altogether. It is an agreement by two or more to do an unlawful act. … I think there is a cause of action when it is remembered that the tort is a conspiracy to injure. I would suggest that a conspiracy to do an unlawful act – when there is no intent to injure the plaintiff and it is not aimed or directed at him – is not actionable, even though he is damaged thereby. But if there is an intent to injure him then it is actionable. The intent to injure may not be the predominant motive. It may be mixed with other motives. In this context, when the agreement is to do an unlawful act, we do not get into the 'quagmire of mixed motives', as Lord Simon LC described them in the Crofters case at p 445. It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injure him, and does in fact injure him. That is what Parker J thought. I agree with him."
"The question of conspiracy assumes no breach of contract, no private rights arising out of breach of the sanctions Orders and no allegations of intention to injure. All that is alleged is actual knowledge that damage would be suffered. A conspiracy to do an unlawful act which is carried into effect and causes reasonably foreseeable damage is actionable as a conspiracy although the act may not have been tortuous in itself. There is conspiracy where an unlawful act is done pursuant to agreement. Here there was actually knowledge that the acts done would cause damage to the appellants. The appellants have pleaded that the historical development of the tort of conspiracy from the crime of conspiracy indicates that a combination or agreement to do an act unlawful in itself gives a cause of action if it results in foreseeable damage."
"The civil tort of conspiracy to injure the plaintiff's commercial interests where that is the predominant purpose of the agreement between the defendants and of the acts done in execution of it which caused damage to the plaintiff, must I think be accepted by this House as too well-established to be discarded however anomalous it may seem today."
He then considered the question of whether it was necessary to establish an intention to injure where the conspiracy involved action that contravened penal law. He held:
"This House, in my view, has an unfettered choice whether to confine the civil action of conspiracy to the narrow field to which alone it has an established claim or whether to extend this already anomalous tort beyond those narrow limits that are all that common sense and the application of the legal logic of the decided cases require.
My Lords, my choice is unhesitatingly the same as that of Parker J and all three members of the Court of Appeal. I am against extending the scope of civil tort of conspiracy beyond acts done in execution of an agreement entered into by two or more persons for the purpose not of protecting their own interests but of injuring the interests of the plaintiff. "
"It is submitted to us that, even with this tort, it must, as with the tort of conspiracy, have been the predominant purpose of the tortfeasor to injure the victim rather than to further the tortfeasor's own financial ends. I do not accept that. It would be inconsistent with the way Lord Diplock treated this tort and the tort of conspiracy differently in his speech in Lonrho Ltd v Shell Petroleum Co. Ltd (No2) and in Hadmor Productions Ltd v Hamilton  1 AC 191, 228-229. No predominant purpose to injure is required where the tortuous act relied on is injury by wrongful interference with a third party's contract with the victim or by intimidation of a third party to the detriment of the victim, nor should it in my view be required where the wrongful interference has been by the practice of fraud on a third party, aimed specifically at the plaintiff, as it was put by Oliver LJ in RCA Corporation v Pollard  Ch 135, 151e-f."
"It also has to be proved by a plaintiff who seeks to rely on this tort, as Mr Beveridge conceded for Lonrho, that the unlawful act was in some sense directed against the plaintiff or intended to harm the plaintiff. The origin of those phrases is the oft quoted passage in the speech of Lord Watson in Allen v Flood  AC 1,96, which was applied by the majority of this court (Buckley and Kennedy LJJ) in National Phonograph Co. Ltd v Edison-Bell Consolidated Phonograph Co. Ltd  1 Ch 335. In that case the fraud was clearly directed against the plaintiff. "
Ralph Gibson LJ at p 492 also referred to 'the nature of the intention that is required to satisfy the requirement that the conduct be "directed against" the plaintiffs.
"So far as conspiracy is concerned, there is good reason for requiring that predominant intent should be an ingredient of the tort. Great difficulty would, in my view, arise if a requirement of predominant intent to injure were to be introduced into the tort with which we are concerned here. This tort is not based upon any agreement, but interference, and frequently it will be fully appreciated by a defendant that a course of conduct that he is embarking upon will have a particular consequence to a plaintiff and the defendant will have decided to pursue that course of conduct knowing what the consequence will be. Albeit that he may have no desire to bring about that consequence in order to achieve what he regards as his ultimate ends, from the point of view of the plaintiff, whatever the motive of the defendant, the damage which he suffers will be the same. If a defendant has deliberately embarked upon a course of conduct, the probable consequences of which to the plaintiff he appreciated, I do not see why the plaintiff should not be compensated."
"Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortuous. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortuous that the means used were unlawful. "
"In the Metall case  1 QB 391 Slade LJ delivering the judgment of the court, whilst expressly disclaiming any intention to construe Lord Diplock's speech as if it were a statue, nevertheless subjected it to a detailed textual analysis leading to the conclusion that it laid down a rule of law that the tort of conspiracy to injure required proof in every case not merely of an intention to injure the plaintiff but also that injury to the plaintiff was the predominant purpose of the conspiracy.
My Lords, I am quite unable to accept that Lord Diplock or the other members of the Appellate Committee concurring with him, of whom I was one, intended the decision in Lonrho v Shell  AC 173 to effect, sub silentio, such a significant change in the law as it had been previously understood. The House as is clear from the parties' printed cases, which we have been shown, had never been invited to take such a step. Moreover, to do so would have been directly contrary to the view of Lord Denning MR expressed in the judgment which the House was affirming and inconsistent with the dicta in what Lord Diplock described, at p 188, as 'Viscount Simon LC's now classic speech in Crofter Hand Woven Harris Tweed Co. Ltd v Veitch  AC 435, 439'. I would overrule the Metall case in this respect.
It follows from this conclusion that Lonrho's acceptance that the pleaded intention on the part of the appellants to cause injury to Lonrho was not the predominant purpose of their alleged unlawful action is not necessarily fatal to the pleaded cause of action in conspiracy and therefore affords no separate ground for striking out that part of the pleading."
"In principle, as we see it, an attempt to harm a plaintiff's economic interests should not transmute the defendant's conduct into a tort actionable by the plaintiff unless that intent is a cause of his conduct. If the defendant would have used the unlawful means in question without that intent, and if that intent would not have led him to act as he did, the mere existence of the purely collateral and extraneous malicious motive should not make all the difference. The essence of the tort is deliberate interference with the plaintiff's interests by unlawful means. If the reasons which actuate the defendant to use unlawful means are wholly independent of a wish to interfere with the plaintiff's business, such interference being no more than an incidental consequence foreseen by and gratifying to the defendant, we think that to impose liability would be to stretch the tort too far" (emphasis added).
"120. Mr Brodie submitted that, in order to succeed, the claimant must prove that the particular defendant and the other conspirator or conspirators intended to injure the claimant and that such an intention could not be inferred from the acts themselves. For the reasons already given we accept the submission that such an intention must be proved, as held by the House of Lords in the two Lonrho cases. We cannot, however, accept the second part of the submission. In many contexts it will be necessary in order to prove intention to ask the court to infer the relevant intention from the primary facts. We can see no reason why there should be a special rule of evidence in this situation. On the contrary, in the case of most conspiracies to injure by tortious means it will be clear from the acts of the conspirators that they must have intended to injure the claimant. In the case of a conspiracy to defraud by wholesale misappropriation it would be absurd to argue that the conspirators did not intend just that.
121. Mr Brodie was not able to produce any authority in support of his proposition. We are not surprised. An example of such an inference being drawn in a similar field is in Bourgoin SA v Minister of Agriculture  1 QB 716 Oliver LJ said (at page 777), in a part of his judgment with which both Parker and Nourse LJJ agreed:
"If an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them."
The facts of the instant case are good example. On the judge's findings of fact the defendants' principal purpose was no doubt to line their own pockets, but they cannot be heard to say that they did not intend to injure the claimants or that their acts were not aimed at the claimants. In all the circumstances we are unable to accept Mr Brodie's submissions under this head."
Intention: interference with contractual rights "Intention: interference with contractual rights"
"the interference must be deliberate. The person must know of the contract, or at any rate turn a blind eye to it, and intend to interfere with it."
"In the passage cited, Woolf LJ was in my opinion emphasising the distinction between an intention to bring about a consequence and the desire to do so and was pointing out that a person can intend a consequence if he knows that it will follow from a course of conduct on which he embarks deliberately. Nor I my view can a consequence properly be regarded as unintended or incidental if the deliberate action is taken knowing that it must inevitably bring about the consequence, desired or not. In truth in such a case the actor intends to bring about both the undesired and the desired consequence and is willing to bring about the one to achieve the other. "
"If there is no valid distinction between persuading a man to break his contract with another and making his performance of it impossible by depriving him in breach of their contracts of the services of his employees, I do not see a basis for distinguishing the deliberate refusal to perform irreplaceable services in breach of contract knowing that such refusal will inevitably make the performance of another's contract impossible. If it is actionable to cause loss to the plaintiff by enticing or persuading another to break his contract with the plaintiff, can it be said to be unarguable that it is actionable to cause such loss by voluntarily and deliberately refusing to perform a contract knowing that such refusal will make it impossible for the other party to fulfil his obligations to the plaintiff? I do not think so."
His conclusion appears in the following passage at p 58:
"In the present case, on the facts taken to be proved, the appellants establish that the respondent voluntarily broke her agreement with Dreampace knowing of the appellants' contracts and that the performance of those contracts would be impossible if she refused to perform the obligations under her agreement with Dreampace. Since she must have realised that her talents were essential and irreplaceable, she must have intended that Dreampace would be unable to fulfil its obligations to the appellants. In such circumstances it seems to me unnecessary to assert a specific intention to interfere with the performance of the appellants' contracts which must necessarily follow from her own refusal to perform her obligations to Dreampace. In the absence of any explanation advanced by the respondent for her actions, the only reasonable inference is that in refusing to perform she must have had a purpose of her own to serve which she pursued at the expense of the plaintiffs' right to contractual performance by Dreampace of its obligations."
"… it is a requirement of the tort that it should be established that the defendant by his conduct intended to break or otherwise interfere with and, with that intention, did break or otherwise interfere with a contract to which the plaintiff was a party."
He also said that he would answer the following question in the former, rather than the latter, sense:
" Must the conduct of the defendant … be aimed directly at the plaintiff, the contracting party who suffers the damage, in the sense that the defendant intends that the plaintiff's contract should be broken, or is it sufficient that the conduct should have the natural and probable consequence that the plaintiff's contract should be broken?"
Intention: misfeasance in public office "Intention: misfeasance in public office"
" "I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v Woollahra Municipal Council  AC 158 in the sense that malice and knowledge are alternatives. There is no sensible reason why the common law should not afford a remedy to the injured party in circumstances such as are before me. There is no sensible distinction between the case where an officer performs an act which has no power to perform with the object of injuring A (which the defendant accepts is actionable at the instance of A) and the case where an officer performs an act which he knows he has no power to perform with the object of conferring a benefit on B but which has the foreseeable and actual consequence of injury to A (which the defendant denies is actionable at the instance of A). In my judgment each case is actionable at the instance of A and, accordingly, I determine that paragraphs 23 and 36 of the amended statement of claim do disclose a cause of action.
For my part, I too can see no sensible distinction between the two cases which the judge mentions.
If it be shown that the minister's motive was to further the interests of English turkey producers by keeping out the produce of French turkey producers – an act which must necessarily injure them – it seems to me entirely immaterial that the one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them. In my judgment, the judge was right in his conclusion also on this point."
Intention: discussion and conclusion "Intention: discussion and conclusion"
"Admittedly it was a striking-out action, but what nonsense that it should go to trial, that Miss Bassey should have to defend herself against five people she had never contracted with and did not aim to harm just because she changed her mind about making a recording. Must I perform my contract with you just because a third party may, to my knowledge, suffer if I don't? Suppose that I agree to buy goods from you knowing that if the sale goes through, your agent will received a hefty commission: am I liable to him for refusing to accept delivery? In such a case there is only one third party: in Millar v Bassey the defendant looked to be liable to a whole orchestra plus the electronic bank. Dear me! Privity come back! – almost all is forgiven. It is easy to see how wrong this decision is, and we shall see later how it came to be possible."
Conclusion on OK!'s cross-appeal
The two issues on damages
Liability for losses from publication in the newspapers "Liability for losses from publication in the newspapers"
The Douglases' claim for a notional licence fee "The Douglases' claim for a notional licence fee"
The discharge of the interlocutory injunction "The discharge of the interlocutory injunction"
• Hello!'s appeal against the judgment in favour of the Douglases based on privacy and commercial confidence is dismissed.
• Hello!'s appeal against the judgment in favour of OK! based on commercial confidence is allowed.
• OK!'s cross-appeal based on the economic torts is dismissed.
• The claimants' cross-appeal on damages based on a notional licence fee is dismissed.