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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/05/2011

Mrs Justice Sharp:

1. This is the return date hearing pursuant to the order of Beatson J of 5 May 2011 who granted an interim injunction to MJN, the Claimant, on short notice. The Claimant asks for a continuation of the Order made on that occasion until trial or further order. The Defendant and Respondent to the application is and was News Group Newspapers Limited (NGN). Mr Hugh Tomlinson QC appears for the Claimant. NGN does not attend, though Mr Richard Spearman QC has sent to the court written submissions on NGN's behalf. As I shall explain below, neither the application before Beatson J, nor that before me today has been opposed. As I indicated at the end of the hearing I have granted the application to continue the Order made with some variations which have been discussed and agreed between the parties. These are my reasons.
2. Shortly before the application on the 5 May, NGN notified the Claimant of its intention to publish in the Sun newspaper an account by an 18 year old lingerie model, Kimberley West, of her 'relationship' with the Claimant, a married premier league footballer. NGN then declined to give an undertaking not to publish, and were notified of the Claimant's intention to apply for an urgent interim injunction on short notice to prevent the disclosure of private information.
3. The terms of the Order which the Claimant then invited the court to make (and which it did make) had been the subject of discussion between Mr Tomlinson, and Mr Spearman in advance of the hearing. The Order, discussed and made, permitted the publication of the story of the 'relationship' by Ms West provided only that (i) nothing is published which identifies or tends to identify the Claimant as the other party to the relationship or as the person who has applied to the court for an injunction; and (ii) what is published excludes sexual, salacious and/or other specified details. It is not conceded by the Claimant that there is any lawful justification for the publication of the story itself. But it was, and is accepted by Mr Tomlinson, that sofar as the issue of prior restraint is concerned, the balance between the Article 8 and Article 10 rights engaged could be struck in the way allowed for by that part of the Order permitting Ms West to sell her story to NGN, and for its publication, but for it not to be told in a way which identifies the Claimant or which gives sexual or salacious details.
4. Ms West and NGN appear to have taken full advantage of this, so that a story has now been published about the 'relationship', and a further one, complaining about the injunction as well. Thus, on 6 May 2011 the Sun published an article headed "MARRIED PREM STAR * GAGS SUN ON AFFAIR", with a sub-heading, "*(Yes, another one)" illustrated by a picture of Ms West; and on 7 May 2011 a further story was published in the Sun headlined "MY FLING WITH PREM STAR" with the caption "The only version of this story that rat's lawyers will let us print."
5. As I have said, NGN did not oppose (although it did not consent to) the Order being made on the terms discussed between leading counsel until an early return date (11 May 2011). NGN have adopted precisely the same position in respect of its continuance.
6. NGN's stance is explained by Mr Spearman as follows:

"So far as continuing relief is concerned, NGN's stance on this Return Date is the same as it was before Beatson J. If the Court is satisfied by MJN that this is a proper case for an injunction, then NGN does not resist (but does not consent to) the continuation until trial or further order in the meantime of an Order in the terms made by Beatson J. Those terms include an entitlement for NGN (like anyone served with or notified of the Order) to apply to vary or discharge the Order without needing to show any change of circumstances. In addition, there is one change which NGN would propose, namely that paragraph 1(c) should be amended to make clear that what is prohibited is not publication of any photograph or video film of the Claimant or his house but only publication of such images relating to or in the context of his relationship with Kimberley West.

In those circumstances, in order to save costs NGN's present position is that it does not intend to appear or be represented at the Return Date."

7. The position before me therefore is that NGN does not oppose the application. It does not seek to argue that the Order should not be continued (subject to the variations which I shall turn to in a moment, and which are agreed), or for example, that the Claimant has made hypocritical statements about his relationships, or that it is in the public interest for the Claimant to be named. Indeed, no public interest justification for the publication of the story has been advanced in argument by NGN or any other media organisation at any stage.
8. It is still necessary for the court to be satisfied independently that the Order asked for should be granted on the terms the Claimant asks for and which NGN does not oppose; but I consider Mr Tomlinson is correct in submitting the fact that the very experienced legal advisers for NGN have taken the position that it is not appropriate to resist the granting of such an order on an interim basis is a material factor to be considered.
9. I summarised the law which applies to applications to restrain what is said to be private information by interim injunction pending the resolution of the matter at a trial (if there is one) in DFT v TFD [2010] EWHC 2335 (QB) as follows:

"14. Interim relief before trial. Since this is an application which, if granted, might affect the exercise of the right to freedom of expression, section 12 of the Human Rights Act 1998 applies and no 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.

"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 he will probably ('more likely than not') succeed at the trial." See Cream Holdings Ltd v Banerjee [2005] 1 AC 253, at [22] per Lord Nicholls.

15. Private information. When considering whether the publication of information which is said to be private should be permitted, the court must first decide whether the information in question is private, that is whether the claimant has a reasonable expectation of privacy in respect of that information such that the claimant's rights under Article 8 of the European Convention on Human Rights are engaged (stage 1). If yes, the Court must then engage in a balancing exercise, weighing the Article 8 rights of the claimant against the Article 10 rights of the defendant (stage 2). See e.g. Murray v Express Newspapers Plc [2009] Ch 481 at [ 24], [27], [35] and [40].

16. In Murray the Court of Appeal said at [35] that the question at stage 1 is "a broad one" which "takes account of all the circumstances of the case". The Court of Appeal also quoted with approval Lord Hope's formulation of the test in Campbell v MGN [2004] 2 AC 457, [99]:

"The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the Claimant and faced the same publicity"

17. Relevant considerations include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent, whether it was known or could be inferred that consent was absent and the effect (of disclosure) on the claimant (see Murray at [36]).

18. The Court should approach the balancing exercise at stage 2 in this way:

"First, neither article 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" per Lord Steyn in Re S (a child) [2005] 1 AC 593 at [17].

19. Public Interest. It is not enough for information to be interesting to the public. Publication of the information must be in the public interest. The modern approach in any event is to consider public interest as an aspect of proportionality: see HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at [68]."

10. As Mr Tomlinson submits, there are therefore essentially two questions for the court. First, would a reasonable person in all the circumstances regard each item of information as private. Second, if so, is there in any event, some proper justification for its publication.
11. Evidence has been put before the court in witness statements from the Claimant, and his solicitors, Mr Hobbs and Mr Oakley, and in confidential schedules to those witness statements. No evidence has been put before the court by NGN. In summary it is said that the Claimant, a married Premier league footballer as I have said, and Ms West had a brief sexual relationship and that their relationship was not conducted in public. To the best of the Claimant's knowledge, only one person knew about it (a friend of the Claimant's) apart obviously from the Claimant and Ms West. The Claimant understood that Ms West viewed the matter as confidential and did not speak to any one about it either. It is also said the Claimant has never courted publicity in relation to any aspect of his private life. He says that the information concerned here is private and sensitive, and its publication would cause him and his wife enormous distress and embarrassment.
12. As for the first question, in my judgment the Claimant is likely to establish at trial that he has a reasonable expectation of privacy in relation to the information which he wishes to restrain such that his privacy rights are engaged. As was said by Eady J in Mosley v News Group [2008] EWHC 1777 (QB) at [98] "anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults" and that "people's sex lives are essentially their own business" at [98].
13. As for the second question, I also consider it to be plain and obvious, as Mr Tomlinson submits that the Claimant is likely to establish at trial that publication of the information which the Claimant seeks to protect, either identifying him as a party to a 'relationship' with Ms West, and/or as to the sexual, or salacious details of the relationship, would constitute an unjustifiable interference with the Claimant's personal and family life.
14. It is accepted by the Claimant that the Article 10 rights of Ms West and NGN are also engaged. In my judgment, the Claimant is likely to establish that there is no basis or justification for publication of the information which the Claimant now seeks to protect, in particular in circumstances where Ms West has already been permitted to tell her story of her relationship with the Claimant, albeit without naming him. No public interest justification has been advanced for its publication as I have said; but in any event I consider the Claimant is likely to establish there is no public interest in the fact that the Claimant had a short-lived affair or in its sexual/salacious details and that publication of the relevant information would not make any contribution to any debate of public interest: see most recently, in this context, ETK v News Group Newspapers [2011] EWCA Civ 439. The relevant information here is not in the public domain.
15. I consider Mr Tomlinson is right therefore in submitting the balance in favour of the Claimant's Article 8 rights in the protection of private information about a sexual relationship is strong, when set against the Article 10 rights of NGN and Ms West, in the absence of any public interest justification, to add the identify of the Claimant and sexual and salacious details of the 'relationship' to the story Ms West and NGN have already told; and thus that the balance between the parties' respective rights has been fairly struck at this stage.
16. I am therefore satisfied that the injunction granted by Beatson J, the relevant terms of which are available in a public Order, and which are summarised in paragraph 3 above, should continue until trial or further order, subject to one variation referred to by Mr Spearman in his written submissions and which Mr Tomlinson agrees should be made. Paragraph 1 (c) of the Order shall be varied so there shall be no publication of any photograph or video film of the Claimant or the Claimant's house (but only if that photograph or video identifies or tends to identify the Claimant as being the person who applied for this Order).
17. It is necessary further to consider the terms of the draft Order and any derogation it makes from the principles of open justice. I am satisfied that it remains necessary for the Claimant to be anonymised for the reasons I have already given. At the start of the hearing, Mr Tomlinson invited me to hear this matter in private. In the event however, I was satisfied this was not necessary, provided an order was made pursuant to CPR 31.22 that no use may be made by any person who is not a party to the action of any of the confidential schedules to the witness statements or the skeleton arguments read by the court and referred to in the course of the hearing; and that no person who is not a party to the action may obtain the documents from the court records. Accordingly, the hearing was in public, and I made an order pursuant to CPR 31.22 in those terms.
18. Subject to that, I am further satisfied that the further provisions within the draft Order put before me which derogate from the principles of open justice (and which, for example, permit information which may reveal the identity of the Claimant to be contained in confidential schedules to the witness statements and excluded from the statements of case) are necessary to prevent disclosure of the information which is the subject matter of this application.