England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 November 2010

Lord Justice Sedley:

1. This application is made by Mr Richard Spearman QC, who appears with Mr Justin Rushbrooke and Mr Godwin Busuttil. It is made in the context of an extant permission to appeal granted by Sir Richard Buxton, which is in limited form but gives permission to challenge the refusal of Eady J to continue an injunction granted by Maddison J which restrained the disclosure of confidential information by the defendant (the respondent to the appeal), about whom I will say more in a moment. The injunction has been continued, however, pending the application for permission to appeal and thereafter pending the appeal, which Mr Spearman now invites me to enlarge.PRIVATE 
2. Before I turn to it, I should say that there is a contingent application that I should sit in private in order to hear this application. In the event the only dramatis personae in court have been Mr Spearman and his team and a representative of the respondent's solicitors, who has limited her role to taking a note. It has been possible in the event to conduct this application without citing any sensitive material.
3. The issue revolves around a lengthy application notice filed by the husband (as I will call the respondent) in the Thessaloniki court, in which the wife (as I will call the appellant) has brought divorce proceedings in which the husband is counterclaiming. The application notice contains the husband's detailed account of his relationship with the wife, which is both marital and professional because they run a prosperous Cyprus-based hedge fund, which, so the judge found, was the marital casus belli. It also contains a good deal about their 13-year-old son, who has made it quite clear that he does not want his privacy compromised by publicity.
4. Eady J found that the husband probably believed that once it was on the record in public court proceedings (and there is a bizarrely unresolved issue as to whether the Thessaloniki proceedings were public or private, notwithstanding a welter of expert evidence on both sides) it could be freely published. But in a fully reasoned judgment he declined to continue the injunction, which is set out in full in paragraph 1 of the judgment. It was an injunction which in particular restrained publication by the husband of the text or contents of the application notice, but then allowed for the possibility that publication might, even so, occur by other means. The judge accepted (paragraph 51) that there was a risk that the husband would publicise private matters about the marriage or the child, but denied relief in the light of an assurance -- not an undertaking -- given by counsel for the husband, Mr Desmond Browne QC, that these matters would be redacted in any version of the application notice which might be released by the husband.
5. Sir Richard Buxton gave permission to appeal on this aspect of the case. He wrote:

"I grant permission to appeal in relation to the publication of the matters referred to in §51 of the judgment, which relate to the information contained in the notice rather than to the notice itself. In view of the importance of preserving the rights of the child, and on the basis recognised by the judge in paragraph §56(2) of the judgment that the information relating to him had in any event not yet entered the public domain, it is arguably not enough to rely on assumption or the assurance of counsel, as opposed to obtaining a binding undertaking"

-- or, I would add, making an order if no satisfactory undertaking is forthcoming. It may be that what the judge himself said by way of explanation (paragraph 56.5) is somewhat self-contradictory and gives an added reason for this grant of permission.

6. As to this, the court has a note which has been sent to the applicant signed by Mr Browne QC and urging that:

"It is plain from the words used by Sir Richard that he has limited the issues to be heard to the single issue as to whether it is 'enough to rely on assumption or the assurance of counsel, as opposed to obtaining a binding undertaking'."

7. For the rest Sir Richard Buxton wrote:

"I do not grant permission to appeal in relation to the remainder of the notice. As the judge said in his paragraph 55, what is sought to be published is not inter-spousal communication about one or other of the spouse's businesses, but criticism and discussion of how business conducted by both of them has been managed. I cannot see that A has a reasonable expectation of privacy in relation to the affairs of a business said to be worth a billion dollars, even if it is conducted with her husband."

I have not cited Sir Richard in full, but I think I have set out the essence of his reasoning.

8. Today Mr Spearman comes before me with what I am bound to say is a most unusual application. It is in effect an application that I should determine the full ambit of what he may argue in pursuance of the grant of permission to appeal which I have quoted, and, to the extent that I do not go the full distance that Mr Spearman desires, to grant him permission to do so.
9. To bring such an application ex parte is embarrassing to the court. To make it inter partes is to attempt to conduct a proleptic appeal. Neither seems to me to be appropriate use of the court's time and resources, but we are here and I am invited by Mr Spearman to either clarify or amplify the grant of permission in a series of respects, helpfully spelt out in paragraph 12 subsections (1), (2), (3), (4), (6), (7), (8) and marginally (9) of the statement made pursuant to CPR 52 Practice Direction on the renewal of his application. I am not going to recite them.
10. To take the first, however, Mr Spearman wants to argue that one reason why the judge was wrong was that the husband had already rushed to get his side of the case to the media between being warned of an impending application and the making of a first order. This perhaps illustrates as well as anything the kind of thing this court should not be deciding at this point. If it is an argument, and it may very well be a good argument, it is an argument which goes to the inappropriateness of relying on an assurance, because it is part of the case that the husband is not to be trusted. That is Mr Spearman's essential point upon which he is already on his way to this court. It is certainly not a proposition of law. Of the remaining issues that Mr Spearman wants either elucidated or added, some are factual: for example the proposition that there is sensitive material about the son which remains unredacted is capable of having a bearing depending on how the appeal goes. Others of his points complain of the categorisation made by the judge at paragraph 51 and paragraph 55 of his judgment as to the classes into which information will fall. That seems to me to be relevant, if anything, to the second and discrete application that Mr Spearman makes, and to which I have yet to come, for further permission to appeal.
11. So far, however, as the proposition of law is concerned that the child's interests are paramount, it seems to me both that within Sir Richard Buxton's reasons for giving permission to appeal and in any event a proposition of law which no court can ignore. But I am now in effect giving unilateral advice when it is not my role to do so.
12. I turn, therefore, to the separate ground that Mr Spearman wants to advance, namely that the judge was wrong to take the view that the company's affairs and the extent to which they might impinge upon the wife and her defensible legal interests were not entitled to protection in any order he might make. The judge spoke about this in paragraph 56 of his judgment, in particular but not only in subparagraphs 3 and 4, and he introduced it in sub-paragraph 5 by saying:

"The parties appear to be agreed that the matrimonial proceedings and their business affairs might be inextricably linked."

13. What Mr Spearman wants to do is to include with the personal data that are capable of protection by a restraining order the business relationship between the husband and the wife, on the ground that the personal and the professional are -- at least in their case -- indistinguishable. For this he relies upon well-known dicta of the European Court of Human Rights in Niemietz v Germany [1992] 16 EHRR 97 and of this court in Imerman v Tchenguiz [2010] EWCA Civ 908. Both make the important point that there is no reason why private life for the purposes of Article 8 cannot extend to professional activities and therefore attract similar protection. With that proposition I have no difficulty at all, and neither, I am quite sure, did Eady J, but it does not follow for a moment that everything that a person does by way of business or commercial activity is entitled to the protection of Article 8. The one simply does not follow from the other. What one has to look at in each case is the extent to which the two categories merge or overlap.
14. In the present case it is perfectly true that the husband and wife had both a matrimonial and business relationship, but there is nothing that I have seen or been shown that demonstrates that the business relationship, insofar as it is likely to be publicised by the husband, overlaps with or coincides with the kind of personal relationship for which Article 8 is designed. There can, as I say, be such cases. I am not satisfied that on the evidence there necessarily is one at this stage, but this does not matter because it seems to me that in any event this is not the subject matter of a discrete ground of appeal. What it is is a matter for either this court or, if the matter is remitted, a lower court if Mr Spearman succeeds in his appeal, when deciding what order ought to be made. This is because ex hypothesi Mr Spearman will not have established by then that he is entitled to an order (unless of course he gets an undertaking of suitable breadth and depth). At that point it will be appropriate, it seems to me, to consider how wide a proper order should go and whether it should extend, and if so how far, into the business relationship.
15. So the tentative view that I have expressed about the difference between the two which the judge found to exist may be of no relevance in any event to the appeal itself, but of relevance only to any consequential order that can be obtained. That matter will be for Mr Spearman and Mr Browne to argue about.
16. I hope that deals in substance with what I have been asked to deal with. It follows that I propose to make no order today. I do not think I have even reached the stage of allowing or rejecting anything.

Order: None