COURT OF APPEAL (CIVIL DIVISION)
Mr Justice Eady
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE GROSS
| Christopher Hutcheson (formerly known as "KGM")
|- and -
|News Group Newspapers Ltd & Ors
WordWave International Limited
A Merrill Communications Company
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Official Shorthand Writers to the Court)
Ms Adrienne Page QC and Mr Jacob Dean (instructed by Farrer & Co) for the First Respondent
Ms Heather Rogers QC (instructed by Davenport Lyons) for the Second Respondent
Mr Mark Warby QC (instructed by Reynolds Porter Chamberlain) for the Third Respondent
Hearing dates: 24th & 25th May 2011
Crown Copyright ©
LORD JUSTICE GROSS:
i) As to the fact of his relationship with Frances Styles;
ii) As to the fact that he is the father of Christopher and Victoria (of whom more below);
iii) As to Frances and their children (i.e., Christopher and Victoria) being Mr. Hutcheson's "second family".
" 10. The information in respect of which the Claimant seeks to maintain confidentiality falls within a very narrow compass. In 1968 he married a lady with whom he had four children, who are now grown up. The marriage still subsists. In the meantime, from about 1976 he developed a relationship with another woman with whom, in 1979 and 1981 respectively, he had two children. Obviously, they too are now adults. For many years, however, the Claimant managed to keep the information about his 'second' family secret, to a greater or lesser extent. How far he succeeded in this intention has been a matter of debate in the light of the limited evidence available. The position now is that, finally, all members of the Claimant's 'first' family are aware of the situation, although I am told that one of his daughters was only informed two or three weeks ago. She was told by her husband, who himself had known of the 'second' family only since the beginning of last year.
11. The Claimant's case is that the information is no more widely known than among his two families and that it is not 'public knowledge'. He says that he still has a reasonable expectation of keeping his 'second' family secret, in the sense that he should not be identified as being the father of the two children in question or as having had a relationship with their mother.
12. I need to explain how it is that the information has become of interest at this point and why The Sun newspaper wishes to make it public by way of an 'exclusive' story.
13. It so happens that the daughter who only found out recently about her father's 'second' family is married to the chef and businessman Gordon Ramsay. The Claimant was until recently associated with Gordon Ramsay in business. He was the chief executive of Gordon Ramsay Holdings Ltd and Gordon Ramsay Holdings International Ltd which, together with various subsidiaries, constitute the Gordon Ramsay Group. In October of this year [i.e., 2010], however, the Claimant was dismissed.
14. Since that time, there has been a very public slanging match between Gordon Ramsay and the Claimant in the columns of various newspapers. Each of them has been making unappetising allegations about the other. This has not been confined to business matters. I was shown, for example, an 'open letter' from Gordon Ramsay to the Claimant's wife in which he refers to her estrangement from her daughter (Mrs Ramsay) and her grandchildren and calls for a degree of reconciliation. On the other hand, the Claimant for his part puts the blame for the estrangement on Gordon Ramsay. "
" 5. …..it is clear that an applicant who seeks to restrain publication of personal information will need to approach the matter in two stages. First, it is necessary to demonstrate that he has a reasonable expectation of privacy in respect of the subject-matter in question, having regard to Article 8 of the European Convention on Human Rights and Fundamental Freedoms. If that hurdle is overcome, it next has to be shown that there is no countervailing public interest sufficient to outweigh his right to protect that information. At the second stage, the court will apply what has been termed 'an intense focus' to the particular circumstances of the case, in order to arrive at a determination of where the balance lies between the competing rights concerned…… "
" 36. I would accept that article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the 'second family' or to the Claimant's extra-marital relationship. It is a 'bare fact' case; that is to say, the court is concerned only with the bare fact of the familiar relationship……Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the 'second family'. "
" 40. In the present case, ….[NGN]…wish to have the opportunity, in reliance upon their well placed source, to publish allegations relating to the supposedly true reason for the Claimant's dismissal from the Gordon Ramsay Group, which was said to involve his having misapplied corporate resources in some way connected with his 'second family'. That the newspaper is entitled to do subject, of course, as always, to the constraints of the law of libel. The Claimant cannot rely on the law of privacy to prevent that…..
41. Furthermore, I referred earlier to the Claimant's highly publicised attacks on Gordon Ramsay, both in relation to the way he runs his business and as to this supposed responsibility for the breakdown of relations between his wife and her parents. It seems that there may be another side to this, and that the estrangement may not be wholly unconnected with the Claimant's double life and Mrs Ramsay's recent discovery of the true position. The Claimant can hardly expect to have it all his own way and to use the court's processes to cover up the true position or to prevent Gordon Ramsay from responding to his allegations by using the full facts at his disposal. It can thus be readily understood, in this particular case, that it would be very difficult to draw hard and fast boundaries between 'zones' – whether business or familial in nature. According at least to this newspaper's source, the two seem to be intertwined."
" I cannot say that it would be necessary or proportionate, either in the interests of the administration of justice or for the protection of the Claimant's legitimate expectations in respect of Article 8, to restrict the freedom of expression of any of these Respondents."
i) Frances Styles at some time called herself "Mrs Hutcheson" and changed her name, by deed poll, to "Frances Hutcheson".
ii) Although Mr. Hutcheson's name was not on the birth certificates of Christopher and Victoria, the children took his name. Subsequently, when Victoria married in the USA in 2007, her marriage certificate recorded Mr. Hutcheson as her "father/parent". Both the birth certificates and the marriage certificate are in the public domain.
iii) Mr. Hutcheson provided financially for the "second family". In his evidence, he has said that he loved all his children immensely and was very proud of them. As to Christopher and Victoria, he had "played a full role in their upbringing". Subsequently, however, Mr. Hutcheson added that his relationship with Frances had been conducted "surreptitiously"; given his business commitments and the requirements of his first family, the amount of time he could spend with his second family was "greatly restricted". It followed that he had played a "much fuller role" in the upbringing of the children of his first family. He had, however, attended meetings at Christopher's and Victoria's schools, such as parents' evenings; those at the school knew him as Mr. Hutcheson but, he said, did not know that he had another family. When Christopher and Victoria had reached an appropriate age (about 10 to 12), it had been explained to them that he did not live with them because he had another family with whom he lived; thereafter, they had understood the need for "discretion". In short, having regard to living arrangements, social functions and holidays, he had "…publicly played the role of father to Christopher and Victoria on a very limited number and type of occasions…". No one who knew him in connection with the second family (other than the second family itself) knew of his first family – an essential matter if he was to keep knowledge of the second family from his wife and children of the first family. Likewise, apart from professional advisors and one other person, no one outside of the second family knew of its existence – until he began informing his first family of the second family's existence.
" ….a number of serious instances of misconduct, including: misrepresentation, making false representations on insurance policies, accounting errors, misuse of the directors' loan account, personal use of company credit cards, failure to invoice for work done, mis-management of Group income and breaches of internal accounting procedures. The investigation has revealed serious breaches of the Group's internal policies and procedures, as well as contractual, fiduciary and statutory breaches. "
It further said that the misrepresentations made on the Group's insurance policies alone constituted gross misconduct and left Mr. Ramsay with "no option but to summarily dismiss" Mr. Hutcheson. In fairness to Mr. Hutcheson, it may be noted that there is no reference in the letter of dismissal to him using company monies to fund his second family.
" …robustly denies any financial impropriety, admitting to using a company credit card and taking out loans but insisting everything was paid back. "
Mr. Hutcheson added that he had taken money out of the company – just as Mr. Ramsay would have done – but he had not used it "unethically, without anyone knowing, without accountants knowing or Gordon knowing". Mr. Hutcheson placed the blame for the rift on Mr. Ramsay – in the process of doing so, making a variety of personal criticisms of him - and spoke of the "impressive empire" they had built together. He also made reference to the support he had given Mr. Ramsay in keeping his marriage together when he (Mr. Ramsay) had been accused of "cheating" his wife (Mr. Hutcheson's daughter). Overall, Mr. Hutcheson claimed that he had been made a scapegoat for the Group's difficulties.
" 10. On Wednesday 10 November 2010 one of the reporters in my team told me that he had spoken to one of his sources about the Claimant and the reasons for his dismissal from Gordon Ramsay Holdings. I cannot reveal the identity of the source because the information they had provided to the reporter was given on a confidential and/or 'off the record'….basis. However, I am aware of the identity of the source and can confirm that the source is a reliable and regular source, having provided us with information previously which has been accurate, reliable and resulted in published stories.
11. The reporter went on to tell me that during his conversation with the source, the source confirmed ….that the reason the Claimant was sacked from Gordon Ramsay Holdings was because it had been alleged that the Claimant had been using company monies to fund his 'second family'….."
Mr. Pharo explained (at para. 3) that he was making the witness statement rather than the reporter concerned, because he believed that if the reporter was identified it would reveal the identity of "the confidential source". Mr. Pharo spoke (at para. 13) of the public interest in the story being published quickly. He also – and frankly – emphasised the commercial interest of NGN in being free to publish the story, having spent time and money researching it and while it remained "a current matter of public debate". If not free to do so, he was concerned that the news value of the story would "perish" or that the information might be published elsewhere (perhaps outside the jurisdiction), thereby losing for NGN the exclusivity of the story.
THE LEGAL FRAMEWORK
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…..
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
" Freedom of expression.
(1) This section applies if a 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 articstic 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."
" ….(i) The right to freedom of expression enshrined in article 10 of the Convention and the right to respect for a person's privacy enshrined in article 8 are vitally important rights. Both lie at the heart of liberty in a modern state and neither has precedence over the other….. (ii) Although the origin of the cause of action relied upon is breach of confidence, since information about an individual's private life would not, in ordinary usage, be called 'confidential', the more natural description of the position today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information……(iii) The values enshrined in articles 8 and 10 are now part of the cause of action and should be treated as of general application and as being as much applicable to disputes between individuals as to disputes between individuals and a public authority…..(iv) Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy…..(v) In deciding whether there is in principle an invasion of privacy, it is important to distinguish between that question, which seems to us to be the question which is often described as whether article 8 is engaged, and the subsequent question whether, if it is, the individual's rights are nevertheless not infringed because of the combined effect of article 8(2) and article 10….. "
" 10. Prior to the coming into force of the Human Rights Act 1998 the approach to cases such as this lacked coherence in domestic law. However, the basic principles of substantive law are now well settled. In In re S (A Child) (Identification: Restrictions on Publication)  1 AC 593, para. 17, Lord Steyn extracted four propositions from Campbell v MGN….:
'First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.'
12. The authorities were rigorously reviewed by Buxton LJ in McKennitt v Ash  QB 73 where he said, at para. 11:
'in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If 'no', that is the end of the case. If 'yes', the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter inquiry is commonly referred to as the balancing exercise……' "
" …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."
" 21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification…….an individual's personal autonomy makes him – should make him – master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image…..He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the state shows an objective justification for doing so.
22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's personal autonomy must (if article 8 is to be engaged) attain 'a certain level of seriousness'. Secondly, the touchstone for article 8(1)'s engagement is whether the claimant enjoys on the facts a 'reasonable expectation of privacy' …….Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2)…… "
That, in the event, this judgment of Laws LJ was a dissenting judgment, is neither here nor there on the questions of principle canvassed in the passage cited.
" Respect for the dignity and autonomy of the individuals concerned requires that, if practicable, they should speak for themselves."
" ….when cases are difficult to decide it is usually because the decision must strike a balance between two legitimate interests, one of which must give way."
" It is not for the judge to express personal views on such matters, still less to impose whatever personal views he might have. That is not the issue. The issue is what the judge should prohibit one person from saying publicly about another…..
…..There is no suggestion that the conduct in question in the present case ought to be unlawful, or that any editor would ever suggest that it ought to be. But in a plural society there will be some who would suggest that it ought to be discouraged…..Freedom to live as one chooses is one of the most valuable freedoms. But so is the freedom to criticise (within the limits of the law) the conduct of other members of society as being harmful or wrong….It is as a result of public discussion and debate that public opinion develops….."
See too, the thoughtful discussion in Tugendhat and Christie, The Law of Privacy and the Media (2nd ed.), at paras. 12.208 – 12.216, under the heading "plurality of opinion".
" Thus in this case Article 8 is clearly 'engaged' in the sense that Article 8 is applicable; the fact of the second family is a fact relating to the Appellant's family life. But that provides only limited assistance on the question whether Article 8 is 'engaged' in the sense that the Appellant has a reasonable expectation of privacy in relation to that fact, such that publication of it in a newspaper requires special justification."
As to whether there was a reasonable expectation of privacy, the Judge had been right; this was a "fact of relationship" case. There were a variety of public incidents attaching to that relationship, going to the birth and marriage certificates already mentioned, together with Mr. Hutcheson's own evidence as to active parenthood. In any event, the essential reason for privacy had gone: his wife and the children of his first family now knew of the second family. There was an important distinction between not wanting publicity and having a reasonable expectation of privacy, such as to justify intervention on the part of the Court.
THE BALANCING EXERCISE
i) Mr. Hutcheson has effectively discounted his own claim to privacy; the claim essentially turns on the impact of publication on his wife, Frances and his children (of both families).
ii) That being so, it is noteworthy that there is no evidence whatever from any family members (first or second) in support of the claim for injunctive relief. As Tugendhat J observed in Terry (supra), at , if practicable, the family members should have spoken for themselves; there is no explanation before this Court as to why they have not done so here, save for the valiant submission from Mr. Tomlinson that it may have been attributable to pressure of time, given the speed with which this application came before Eady J. On any view, if timescale was the problem, an application could have been made subsequently for such evidence to be introduced.
iii) It might have been supposed that the basis for a claim to privacy in Mr. Hutcheson's situation would be that the first family did not know about the second family. That basis is, however, no longer open to Mr. Hutcheson. All members of the first family now know. The second family have of course known about the first family for many years.
iv) Mr. Hutcheson's evidence (summarised above) betrayed a tension between his understandable desire to portray himself as a responsible parent to both families and his appreciation that active parenthood in the case of the second family led inescapably to underlining the public nature of his role in that regard. The reality is that there was a public dimension to the existence of the second family which could not be gainsaid. As earlier acknowledged, that dimension did not of itself mean that NGN was free to publish the fact of the second family to the world at large but it is a factor to be weighed in the balance.
LORD JUSTICE ETHERTON:
THE MASTER OF THE ROLLS: