England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		23 June 2006

MR JUSTICE EADY:

1. This afternoon I have heard an application made on behalf of Sir Elton John by Mr Browne QC for injunctive relief. The defendants are Associated Newspapers Limited who publish, among other journals, the Daily Mail. They have made it clear in correspondence that they wish to publish in tomorrow's edition a photograph of Sir Elton John of which a clear copy has been put in evidence.
2. The application was heard in private for the usual reasons, namely that the application, being based on an alleged breach of confidence or infringement of privacy, might be set at nought if the application were upheld and the information had meanwhile been revealed or discussed in public. There is, however, no reason why the content of this judgment should be restricted. It is always undesirable for judgments to be given in private unless it is absolutely necessary, and I do not regard it as necessary in this case.
3. It is important to note that the terms of the injunction sought are directed towards the publication of a photograph or photographs. There is no attempt made to inhibit or restrict in any way the publication of text. In some ways that is not surprising because the defendants have not revealed the text which they intend to publish if and insofar as it has already crystallised, which it may not have done, and they are entitled to keep their powder dry in that respect.
4. The specific photograph which it is intended to publish consists of an image of Sir Elton John in the street abutting his London home, together with his driver. Apparently they have just driven from another home near Windsor and arrived in this London street. He is dressed in a baseball cap and a tracksuit. He has his hand on the gate through which he is just about to pass. Insofar as it matters, in this photograph both his feet are still on the public street, by contrast with some of the other photographs in the series, which include at least one showing one of his feet having gone through the gateway into what is presumably his private front garden.
5. It is necessary for me to bear in mind certain well-known principles about the grant of interim relief, particularly insofar as it impinges upon a defendant's rights of freedom of expression as protected or enshrined in Article 10 of the European Convention. I need to bear in mind specifically section 12 of the Human Rights Act 1998, as subsequently interpreted in the courts, and in particular by their Lordships in Cream Holdings v Banerjee [2005] 1 AC 253. My attention was invited by both counsel to paragraph [22] of the speech of Lord Nicholls, where he said this:

"Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success `sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court that he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."

That seems to me to be the guideline which I should adopt in approaching this application.

6. Mr Browne has urged upon me the proposition that the circumstances of this case give rise to one of the exceptional situations contemplated by Lord Nicholls towards the end of paragraph [22]. I believe he relied in the alternative upon both the examples given, that is to say that a lesser degree of likelihood would suffice because either the adverse consequences to his client of disclosure would be particularly grave or because it is necessary to have protection for the court to hear and give proper consideration to the evidence and legal principles.
7. I am satisfied here that neither of those circumstances arises and therefore the appropriate test for me to apply is the more general one of whether the claimant is more likely than not to succeed at the trial with regard to this remedy of an injunction restraining publication.
8. My attention was also drawn to the decision of the Court of Appeal in the case of A v B Plc [2003] QB 195 which, although it was handed down only a few years ago, might be thought in certain respects to have been overtaken by later developments. Nevertheless, it is right that it should be accorded consideration and respect. My attention was particularly focused by Mr Warby QC on certain principles upon which he placed particular reliance. The first was this:

"Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest."

That, if I may say so with respect, is a general statement of the law which remains valid. In other words, it is not necessary to demonstrate, in the case of a tabloid publication in particular, that the contents of an article or the content of photographs is desirable in the public interest. It may very well be that, in certain circumstances, it will be necessary to focus upon whether or not it is in the public interest to publish material in respect of which there is a prima facie legitimate expectation of privacy. But that is a consideration which has to be addressed later down the line.

9. The other proposition which was referred to was this. Regardless of the quality of the material which it is intended to publish, prima facie the court should not interfere with its publication. Again, that is a statement of the obvious and a principle which has long applied ever since Blackstone's observations on prior or "previous" restraint: Commentaries (1765), Book IV, pp. 151-2.
10. Furthermore, guideline (vii) in Lord Woolf's judgment was identified:

".... Usually the answer to the question whether there exists a private interest worthy of protection will be obvious. In those cases where the answer is not obvious an answer will often be unnecessary. This is because the weaker the claim for privacy the more likely that the claim for privacy will be outweighed by the claim based on freedom of expression."

11. Finally, reference was made to "guideline (xii)":

"Where an individual is a public figure, he is entitled to have his privacy respected in the appropriate circumstances. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. .... Whether you have courted publicity or not, you may be a legitimate subject of public attention."

12. Needless to say, my attention was also drawn to guidance given by the House of Lords in Campbell v MGN [2004] 2 AC 457, and also by the New Zealand Court of Appeal in Hosking v Runting [2004] NZCA 34, [2003] NZLR 385, and to the second hearing before the Court of Appeal in Douglas v Hello! [2006] QB 125, when the matter came before Lord Phillips MR. I do not propose to analyse any of those decisions in any detail for the purposes of the present application, but I emphasise that I am familiar with them. I am grateful for the submissions of counsel with regard to them and I have them very much in mind.
13. Here one of the questions I have to address is whether or not on the evidence before me, it could be said that there is a reasonable expectation of privacy on the part of Sir Elton John in relation to the content of the photograph, that is to say the information conveyed by the photograph.
14. In Campbell v MGN, as is well known, the material photograph concerned Ms Naomi Campbell emerging from a drug rehabilitation clinic into the street. The photograph and the story contained information which was relevant to her health in general terms, and more particularly to a course of drug rehabilitation treatment which she was undergoing at the time, in respect of which it was recognised that the publication might have some impact. That was a special factor and it was contrasted, in the words of one of the members of the House of Lords, with a situation where a well-known person is observed or photographed in more casual circumstances "popping out for a pint of milk".
15. In the present case there is no question of the photograph revealing information which touches upon or is relevant to Sir Elton John's health. Nor is there any information about social or personal relationships or, as sometimes happens in these cases, sexual relationships. Those are all matters in respect of which, to a greater or lesser extent, as with allegations about health, an individual has a reasonable expectation of privacy. Here it seems to me that the circumstances are much more akin to "popping out for a pint of milk". In other words, it is simply an individual leaving his car and going to his front gate.
16. An important factor in Von Hannover v Germany (2005) 40 EHRR 1 was the element of harassment, as in the recent case of Howlett v Holding [2006] EHWC 41 (QB), where a woman was being followed by a person who had a grudge against her and whom she had sued on more than one occasion for libel. There is nothing here in the evidence before me to disclose a case of harassment. There is no question, either, of anything which discloses a course of conduct (to use the phrase which appears in the Protection from Harassment Act 1997).
17. There was some evidence before the court from the photographer who had taken the photographs about the circumstances in which he came to take them. Mr Browne for the claimant has expressed considerable scepticism about that evidence, particularly because the photographer says that he happened to be in the street, was not there intending to photograph Sir Elton or to keep an eye out for him or to harass him. He did not know, he said in his evidence, that he lived in this street. The reason given by the photographer was that he was there because it was a particularly good area for him to be able to make an internet connection from his lap-top and he was sitting in his car for about 15 or 20 minutes using his lap-top. He happened to notice Sir Elton and, when he saw him and identified him, he got out of his car and took some photographs from a spot which he indicated by a mark on a photograph. He also showed where, in relation to that spot, Sir Elton was standing or walking at the time of the photographs.
18. It may be that in due course Mr Browne will be able successfully to challenge some or all of that evidence, but at the moment I have no reason to suppose that it is untruthful. I therefore take it into account as part of the background to this application. I have already said that there is nothing here which touches upon subject matter which is traditionally regarded as having about it "the quality of confidence" or a reasonable expectation of privacy (such as health or personal relationships).
19. An unusual case, where photographs in a public street were held to give rise to a claim, was that of Peck v United Kingdom (2003) 36 EHRR 41, where Mr Peck had taken the opportunity late at night in Brentwood High Street to attempt suicide without realising that he was being photographed by CCTV cameras. He was not aware of the presence of anyone else. Publishing the photographs of someone attempting to commit suicide is exceptionally intrusive and insensitive There is nothing here which is remotely comparable to that tragic situation.
20. Against that background, and applying the test which I have already identified in Cream Holdings v Banerjee, I am not satisfied that the claimant is more likely than not to obtain injunctive relief at trial, in the sense of establishing the threshold requirement that there was a reasonable expectation of privacy in the circumstances in which he found himself, or, alternatively, that if there was such a reasonable expectation, the claimant's Article 8 rights would at trial prevail over the defendant's Article 10 rights. I have no doubt that the article is likely to cause offence and embarrassment to Sir Elton. There is reason to suppose from correspondence, which I need not refer to in this judgment, that the article is likely to be dismissive and personally offensive. That, however, in this day and age is regarded as quite a distinct matter from coverage which gives rise to a cause of action, whether in breach of confidence or for that matter libel. I must put to one side, as is made clear by the judgment of Lord Woolf in A v B Plc, considerations about whether or not the material has any particular worth or quality, and I do so.
21. The photograph was not taken with consent, but I am not persuaded that there is, as yet, any doctrine operative in English law whereby it is necessary to demonstrate that to publish a photograph one has to show that the subject of the photograph gave consent. It may be a relevant factor, but it is to my mind one of relatively little weight in these particular circumstances.
22. For those reasons I refuse the injunction.

MR WARBY: My Lord, I invite you to do so and order costs in favour of the defendants.

MR JUSTICE EADY: Mr Browne?

MR BROWNE: My Lord, could I just take instructions for a moment in relation to the matter of an appeal?

MR JUSTICE EADY: Yes, certainly. Do you want me to rise?

MR BROWNE: Yes, for five minutes.

(The court adjourned for a short time)

MR BROWNE: My Lord, I ask first for permission to appeal and for an injunction to be granted pending either the prosecution of the appeal, if your Lordship grants permission, or in the event that you do not, to enable us to go to the Appeal Court and seek permission. Your Lordship will recall that, clearly if the boot had been on the other foot, an application would have been made by Mr Warby. That was made clear in the letter that we received today. Can I just indicate the basis upon which I suggest that, in addition to there obviously being, as the defendants have said, an issue of great importance here and an issue where the law needs clarifying because this is the sort of case that can occur very often and leads to public concern, that the reason that I suggest that there is an arguable point of appeal here is that one is not concerned in applying section 12(3) with a direction question of discretion. Your Lordship is concerned with an issue of law: whether or not the claimant is more likely than not to succeed at trial. It is not the usual case where it can be said that this is all a matter for the discretion of the judge. The judge has to weigh the law and weigh the law in a developing area. In that area obviously, as Mr Warby has indicated, consideration has to be given to the differing emphases in the judgments of the house in Campbell. Your Lordship approached this on the basis of the informational content of the photograph. With great respect, that fails to give adequate weight to the approach at any rate of Lord Hope and Lady Hale, which was to treat the tort as one of intrusion. In other words, we have gone beyond simply a tort whose basis is the law of confidential information to look at what is intrusive in relation to Article 8 rights of privacy in the home. In other words, in Lord Hope's words, this is not an ordinary street scene. What is intended here is clearly going to be, as your Lordship acknowledged, derisive of his baldness and personally offensive, all added to the breach of Article 8 rights.

The second point that I would made is that your Lordship, although mentioning Douglas v Hello in passing, did not consider -- and this is extremely important in the context of the Cream assessment -- the point that was made in Douglas that damages would be an inadequate remedy. That is a matter which swayed the Court of Appeal in Douglas v Hello the second time and was said to be a criticism of their predecessors three or four years before.

So, my Lord, I do ask, as Mr Warby would be asking were the boot on the other foot, for permission to appeal and for your Lordship to extend the grant of an injunction to enable us to go to the Court of Appeal. This is a photograph that was taken last Monday. There is no conceivable urgency if the Daily Mail wish deride Sir Elton John, it is no matter to them whether the do so tomorrow or two or three weeks hence.

MR JUSTICE EADY: May I just ask whether any contact has been made with the Court of Appeal?

MR BROWNE: Not by us. It may well be that Mr Warby may have set it up.

MR JUSTICE EADY: Sometimes one is told that the Court of Appeal is as it were standing by.

MR BROWNE: I do not know whether Mr Warby has put that in hand. We have not.

MR WARBY: No, we have not. Mr Browne has misunderstood some of the things we said. We said that we would go there if necessary, but we did not say that we had it all lined up.

MR BROWNE: No, I was not suggesting that, but it is quite clear that they regarded this as much a matter of importance requiring issues to be resolved of some complexity and difficulties to justify going to the Court of Appeal, and we feel the same, particularly given the nature of the article which is likely to be published, coupled with the intrusive photograph capitalising on a physical feature of Sir Elton, just as humiliating and intrusive in its way as if they had capitalised on his state of health. Indeed, one could perhaps treat baldness as a feature of health.

MR JUSTICE EADY: Yes, thank you. Mr Warby?

MR WARBY: My Lord, it is an evaluative exercise, your Lordship's decision, and what your Lordship has done is to apply the existing principles laid down in the authorities to the facts of this particular case. Mr Brown says it is an issue of great importance. What we said was that the ramifications would be considerable if the novel proposition advanced by his side was accepted. The converse does not apply. It certainly does not mean that there is any merit in the proposition that lay behind the application. So the point of principle does not really arise at all. Your Lordship did refer to the informational content of the photograph, but you also noted the clear reference the question of whether distress and embarrassment would be caused. Your Lordship took all the relevant factors into account and the Court of Appeal would have no basis for interfering with the evaluative exercise your Lordship carried out.

The second point that was made was that your Lordship mentioned Douglas, but not the point about damages being an adequate remedy. Well, your Lordship having given sufficient grounds for the decision, that point did not really arise. Your Lordship has dismissed the application on the basis that it did not cross the threshold. You were not satisfied it crossed the threshold and you were not satisfied that it would succeed when balancing Article 8 with Article 10. So damages being an adequate remedy, it quite simply was not necessary for your Lordship to address. So I invite you to refuse permission and leave it to Mr Browne, if so advised and instructed, to take his application to the Court of Appeal.

MR BROWNE: My Lord, it is obviously very late and it will be difficult now, as the Court of Appeal pointed out in Douglas v Hello if an injunction is refused, that represents a considerable intrusion on the claimant's Convention rights, obviously assuming that he is right, as I would ask your Lordship to do for the purposes of this argument.

My Lord, so far as the section 12(3) point is concerned, this is not simply a question of evaluation. Your Lordship has to evaluate the factual evidence, but the real question is the application of the law. I will not repeat myself, save to this extent. Where, with great respect, a point of great importance arises is whether it is right in a case like this to be concerned solely with the informational content of the photograph or whether one has regard to the intrusive nature of a covert, non-consensual photograph, which is the approach we say that was taken in Von Hannover. So, my Lord, we do say that issues of great importance arise here, not least because, as has been said by these defendants, these matters arise so frequently. In those circumstances, having regard to the stress that is obviously likely to be caused to Sir Elton by the publication of the photograph focusing, as that photograph did, on his baldness, and speculating about whether he wears a wig or a hairweave, my Lord, we say that we should be permitted to have the injunction for as long as it takes us to get this matter before the Court of Appeal. But I do ask your Lordship to say that this is a case where permission to appeal would be proper and justified, bearing in mind the lack of urgency to publish.

MR JUSTICE EADY:

23. Yes, thank you. This afternoon I have refused an interim injunction for reasons set out in the ex tempore judgment I delivered a few minutes ago. I am now asked to grant an interim injunction, nevertheless, so that the claimant can have the opportunity of applying to the Court of Appeal at some stage, perhaps (I was told) several weeks away.
24. Sometimes it is the case, where an urgent application for an injunction is made, that the Court of Appeal has been notified so that Lords Justices can be standing by in order to deal with an appeal in circumstances of urgency. I am told that that has not been done on this occasion.
25. In all the circumstances it does not seem to me to be right to grant an interim injunction despite the reasons I gave in my earlier judgment. It is said that there are matters of developing law and of great importance here which require the attention of the Court of Appeal. On the particular circumstances of this case I am not persuaded that that is so. Therefore, insofar as it is necessary, I refuse permission to appeal. I also refuse to grant an interim injunction for the same reasons I gave earlier.
26. Do you want to say something about the question of costs, Mr Browne?

MR BROWNE: Your Lordship will have to form a view as to the need to have spent as much as twelve hours.

MR JUSTICE EADY: I am concerned for the moment with the principle. MR BROWNE: I am so sorry, my Lord. So far as costs are concerned, the only argument that I could mount is that it should be costs in the action. That, of course, assumes that it will go on. That in the ordinary way would be the appropriate order because it does not necessarily follow from your Lordship's ruling on section 12(3) that the case is doomed, even if your Lordship is right. So that is the order that I would seek, costs in the action, and in due course a detailed assessment if the action goes not further. One does not know quite what will be published and what Sir Elton will wish to do, having regard to the advice from the Court of Appeal that damages are an inadequate remedy once the cat is out of the bag.

MR JUSTICE EADY: All right. Thank you. I think you are entitled to your costs as a matter of principle, Mr Warby. Are you asking me to make a summary assessment?

MR WARBY: Yes, we have done the decent thing and produced a statement of costs.

MR JUSTICE EADY: Have you done the decent thing in serving it on the other side 24 hours beforehand?

MR WARBY: Yes, we have. That is what I meant, but I did not say it.

MR JUSTICE EADY: Yes, I see.

MR WARBY: Yes, we have provided this to the other side. That is what Mr Browne began by talking about.

MR JUSTICE EADY: Yes.

MR WARBY: Could I have a copy handed up to your Lordship and invite you to assess the costs in the sum specified?

MR JUSTICE EADY: Thank you.

MR WARBY: The focus of Mr Browne's submission, half made before he had second thoughts, was the second count, the apparently extravagant amount of twelve hours spent by Miss Hartley dealing with this matter. Of course, there being no costs statement from the other side, we are not to know how many hours --

MR JUSTICE EADY: I never find that terribly helpful anyway. People always like to refer to it, but I would rather concentrate on what has been --

MR WARBY: I always find it rather intriguing.

MR JUSTICE EADY: Well, that is a different point.

MR WARBY: Your Lordship's views are what matter. My Lord, I can say that that time was principally spent from between about six o'clock yesterday when the question of a threatened injunction was raised again and the time this hearing began. From personal experience, to-ing and fro-ing was going on throughout the course of last evening, as your Lordship will understand. Taking the statement of the journalist whose e-mail confirming and proofing the statement came in at some time after ten o'clock.

MR JUSTICE EADY: Yes.

MR WARBY: So, in my submission, twelve hours at that rate is remarkably modest compared to many that one sees. It is a thoroughly reasonable sum in a matter of this kind.

MR JUSTICE EADY: Can I check with you whether in this case VAT is properly claimed?

MR WARBY: VAT is not charged, no.

MR JUSTICE EADY: It is claimed here.

MR WARBY: Yes, I apologise for that.

MR JUSTICE EADY: That ought to come out?

MR WARBY: Yes, because that can be reclaimed.

MR JUSTICE EADY: That is what I thought, yes.

MR WARBY: So I drop the claim for VAT. The fee is £7,081.

MR JUSTICE EADY: Do you want to say anything about the detail? You were about to say something about the twelve hours, Mr Browne?

MR BROWNE: Well, your Lordship has to approach this with a fairly broad brush and twelve hours does seem an awful lot. I will not speculate about what Mr Taite has worked out. As your Lordship said, it would not be helpful, but in our submission the sum of £7,000 odd, which remains after the VAT is deducted, ought to be knocked down by a reasonable percentage.

MR JUSTICE EADY: Mr Warby, unless you want to persuade me to the contrary, I think the right figure for summary assessment is £6,000.

MR WARBY: My Lord, I will leave it there.

MR JUSTICE EADY: Thank you very much.