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
		05/08/2015

Mrs Justice Elisabeth Laing DBE :

Introduction

1. On the evening of Friday 31 July 2015, my clerk was approached by the solicitor for the Applicants ('As'). He wished to make an urgent application for an injunction to restrain publication in a newspaper of material relating to the first Applicant ('A1'). That evening, my clerk received a skeleton argument from the Respondent ('R'). I held a telephone hearing on the afternoon of Saturday 1 August at which the As and R were represented by leading counsel (Mr Tomlinson QC and Mr Browne QC). I said that I would hold the hearing in private, and make an anonymity order, given the issues in the case. Mr Tomlinson QC gave an undertaking to ensure that a record of the hearing was kept.
2. I had witness statements from both sides. I had skeleton arguments by that stage from both counsel. At the end of that hearing, I said that I had decided to give the relief sought by the As. I gave brief reasons for doing that, and said that I would write a short judgment explaining those reasons in more detail. One of R's witness statements did not reach me in time for the hearing. Mr Browne QC referred to some of the material in it in the course of his oral submissions. I should make clear that although I did not see that evidence at the time of the hearing, I have consulted it in order to deal in this judgment with the points which Mr Browne QC derived from it in his oral submissions.
3. The relief I granted was for a short period only, until Wednesday 5 August 2015, when both leading counsel would be available to argue more fully in court whether interim relief should be granted in this case or not.

This judgment

4. Counsel agreed that this should be a public judgment. Because I had also decided to grant the As' application for anonymity (a subject to which I shall return), they agreed that I should ensure that the judgment was not expressed in terms which might enable an astute reader to join up the dots. I have tried to strike a balance in this judgment which ensures that my reasons for granting the order are intelligible, without saying so much about the facts that it is possible for the reader of this judgment to undo the work of the order. This means that what I say about the facts is, necessarily, expressed in relatively general terms. I should therefore make clear that while my description of the facts is necessarily short on detail, I have, in making my decision, nonetheless considered the nuances of the facts which were relied on by each side. I cannot, however, show that I have done so in this judgment. Any reader of this judgment will thus have to take that on trust.
5. Except to a limited extent, counsel did not disagree about the framework in which I had to make this decision. I will not, therefore, in what is intended to be a brief judgment, explaining my reasons for giving what is intended to be a short-lived order, cite extensively from authority for points which were not controversial. I did not think it would be useful, either, to engage, in this judgment, in the artificial exercise of analysing the authorities in greater depth than the parties did in their skeleton arguments. There are two reasons. The first is that such an analysis did not inform the decision I made after the hearing on Saturday. The second is that the judge who conducts the hearing on Wednesday 5 August 2015 will have a greater opportunity than I did to listen to detailed arguments about the authorities. That means that it would not be proportionate for me to analyse them in any depth, even if, which I do not, I considered that it would be appropriate.

A general outline of the facts

6. A1 is a prominent and successful professional sportsman, who has, from time to time held positions of responsibility in his sport. He appears in advertisements for some products.
7. He is now married to A2. He seeks to restrain a national newspaper from publishing a story, to be recounted by X, about a sexual relationship between them. It is common ground that the relationship was some years ago and lasted a few months. At the time of this relationship, he was not married to A2, but she had been his girlfriend for a while. X says, and this has not been specifically denied by A1, that they met at times when he should have been preparing for sports events. She and R now criticise that conduct.
8. Some material has been published about X and A1. There is a dispute about whether A2 has contributed to that.
9. X now wishes to give her account in order to 'put the record straight'. R's evidence describes the proposed content of the article. It is considerably more detailed and concrete than what has been published so far. Its publication will no doubt cause embarrassment to A1 and A2.

The law

10. This is a case in which there is a conflict between rights conferred by the European Convention on Human Rights ('the ECHR') and set out in Schedule 1 to the Human Rights Act 1998 ('the 1998 Act'). The rights in issue are the article 8 rights of the As and the article 10 rights of R and of X. A conclusion about that conflict requires an intense focus on the facts. Neither right has precedence over the other. The protections conferred by both article 8 and article 10 rights are defeasible. One of the interests which may defeat the protection conferred by article 8 is the interest in protecting the rights and freedoms of others. One such interest is the exercise of the qualified freedom conferred by article 10. The exercise of the freedom conferred by article 10 'carries with it duties and responsibilities, [and] may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ...for the protection of the reputation or rights of others [or] for preventing the disclosure of information received in confidence...'. That will include the interests which the As seek to protect by this application.
11. Neither 'side' has a burden to discharge, as such; rather, each has to justify a desired interference with the other's Convention right or freedom. So I have to balance, in deciding what, if any, protection, or weight (as the case may be) the court should give to the article 8 and 10 rights/freedom of each side, the desire of the other to assert a defeasible right or freedom protected by a different article of the ECHR. In each case that right or freedom conflicts with the right or freedom on which the other relies. This means that, on the facts of this case, I have to examine closely the relative importance of the two rights which are in play.
12. Section 12 of the HRA applied to this application. In short, the court may not grant relief unless an applicant is 'likely to establish that publication will not be allowed'. It was agreed by counsel that that is a variable standard depending on facts of case. In general, the court should be satisfied the applicant will probably, that is, is more likely than not to, succeed at trial. They agreed that a lesser degree of likelihood may suffice if the court is granting an injunction, where, as here, if granted, it will only last for a short period, pending more detailed argument. That, and the nature of the 'news' in this case mean, in my judgment, that I should give less weight than might otherwise be appropriate to the intrinsic evanescence of 'news', a point which Mr Browne QC relied on in his oral submissions. This is not a story, either, which has only just broken, or which is developing at a fast pace.
13. Section 12 also requires me to take into account the importance of the ECHR 'right' of freedom of expression, and the extent to which the material has become, or is about to become available to the public. I must take into account any relevant privacy code. Mr Tomlinson QC referred me in argument to the relevant provisions of the code which applies. In my judgment, and on my analysis of the facts, it does not support publication of this story. Finally, I must take into account the extent to which it is, or would be in the public interest for the material to be published. On the authorities, that means the extent to which the material contributes to a debate of general interest.

The rights which are in play

14. I will start with the article 8 rights of A1 and A2. I should say that this is not because I have made the mistake of giving article 8 a primacy it does not have, but because I have to start somewhere. Mr Browne QC's oral submissions hinted that A2's article 8 rights were irrelevant, because X and R are not proposing to publish her private information. I reject the submission, if made, that A2's article 8 rights are irrelevant. Publication will interfere more than minimally with her right to respect for her home and family life, as her witness statement makes clear. I accept, however, that any likely interference with her article 8 rights is less serious than any likely interference with A1's article 8 rights, and so can more easily be justified. I have considered the conflicting evidence about the extent to which A1 and A2 conduct their lives in the public eye. Apart from the prominence which A1 has as a result of his job and product endorsements, I do not consider that the limited evidence relied on by R shows that, as a couple, they court publicity.

Does A1 have a reasonable expectation of privacy?

15. The authorities show that in order to rely on article 8 in support of an injunction restraining publication, A1 must first show that he had a reasonable expectation of privacy. If he did not, there could be no interference with his article 8 rights, and the question of justification would not arise. There is some suggestion in the authorities that a transient relationship is entitled to less protection than a permanent relationship. But I accept that material about a person's sexual life, whether it relates to a transient, or to a more durable relationship, is in principle protected by article 8, as a person's sex life is a very important aspect of the interests protected by article 8.
16. R relied heavily on the submission that this relationship was at the transient end of a spectrum. But on the evidence I have read, this relationship at issue in this case was not a one-night stand, or an encounter with a prostitute, as X's witness statement makes clear. She says, 'We spent a considerable time together whilst in our relationship...', and that while she has had many affairs, she felt that this relationship was different. She thought that things between them 'could go further'. Despite finding out towards the end of the relationship that A1 was in a long-term relationship with A2, she felt that 'we had a chance of building something together'. When, after a while, it became clear that A1 was not serious about the relationship, and the relationship ended, she describes her upset. Even so, she says that she kept in contact with A1for a long time after the relationship ended.
17. A further factor which I have taken into account, in addition to this important evidence about the duration and nature of the relationship, is the evidence of X that, from the outset, both of them conducted it clandestinely. From her evidence it is clear that it was her understanding that A1 did not want to get 'caught out', and that both needed to be careful to ensure that this did not happen. They kept an eye out for CCTV cameras, for example. Finally, although R's case is that X conducts her entire private life in public, that evidence only goes a limited distance. X has kept her counsel about this relationship for some time, and was discreet about when it was going on, even after she discovered that A1 had a long-term girlfriend, and even after the relationship ended. She kept in contact with A1, on her evidence, until quite recently, and did not any stage, until very recently, decide to make it public.
18. It is against this evidence that I have to assess the weight I should give to R's submission that X is 'not a private person'. The submission is based on the fact that she has chosen to display in public aspects of her life which others might regard as normally private. Examples of this are given in R's evidence. This evidence is adduced in order to suggest that X is a shallow, one-dimensional, cut-out character who broadcasts, and is known to broadcast, her entire private life, so that anyone embarking on a relationship with her knowingly takes the risk that it will be made public. I do not accept that this is an accurate account of the evidence. X's own witness statement paints a more complicated picture. It shows, in my judgment, that she did not see this relationship, or treat it, as public property at the time, and for some time afterwards. She was discreet about it, and valued it. She did not apparently see it, or use it, as part of her public career.
19. I also take into account the fact that successful sportsmen necessarily have a prominent position in public life, and because of that, and whether they like it or not, lose control over aspects of their private life. But I do not consider that being a public figure of and by itself makes the entire history of that person's sex life public property. R argued that A1's position of responsibility in his sport, and the fact that he is a prominent sportsman, make him (whether he wants it or not) into a 'role model' who can therefore expect to have his conduct, on and off the sports field, to be examined minutely and publicly. I consider these arguments in more detail when I come to justification under article 8.2. I do not think that, singly, or collectively, in this case, they undermine the reasonable expectation of privacy about this relationship which A1 had.
20. At this stage, I only add that it is important to analyse what sort of a role model A1 is or can be. He is a role model for sportsmen and aspiring sportsmen. Any scrutiny of his conduct away from sport ought to bear a reasonable relationship with the fact that he is a sportsman. His position does not turn him into an example in every sphere of his existence. He is not a role model for cooks, or for moral philosophers. The fact that he is a prominent sportsman does not mean that he impliedly pontificates publicly about private morality. In my judgment, a discreetly conducted affair, before he was married, some years ago, is not obviously inconsistent with his public role, even if its conduct involved the breach of team rules.
21. Publication of the proposed story will undoubtedly interfere with A1's reasonable expectation of privacy, and thus, with A1's article 8 rights. It will also interfere with A2's article 8 rights, for the reasons given in her witness statement.

Justification

22. This brings article 8.2 into play. I have to ask what justification is advanced for that interference. The justification is the desire of X and R to exercise their article 10 rights. While I have to take into account the importance of the freedom of the press, that freedom is not, self-evidently, of and by itself, enough to trump the As' article 8 rights. I cannot balance these two incommensurables without asking why, and for what purposes, X and R seek to exercise their article 10 rights. So I turn to that.
23. R's reasons for publishing the information are, no doubt commercial. But I do not give this any weight, as the fact that most newspapers are run for profit does not deprive them of, or lessen the importance of, their article 10 freedom. R argues that there is an important public interest in publishing this story. I bear in mind both that newspaper editors should be given some leeway in judging where the public interest lies, and that, just because the public might well have a prurient interest in being told something does not mean that it is in the public interest for them to be told it. The public interest here is, I remind myself, a contribution to a debate in the general interest.
24. The public interest arguments circled round the suggestion that this story shows that A1, who is, and should act as, a role model is, in reality, a hypocrite. First, it is said that there is a public interest in publishing the story because A1's conduct of the relationship meant that he broke rules on a few occasions in having a woman with him when he was staying at a hotel. He denies that his conduct led to the breach of any rules. I cannot resolve that conflict at this stage. But even if I assume that he did break any rules, I do not see that there is any public interest in revealing this now, some years after the event. Such stories may generate some interest at the time of the infraction, but I was shown no evidence to suggest that there is any current debate about past infractions by sportsmen of rules of this sort. Nor do I consider that the mere fact he broke rules in the past shows that he, is or should be publicly exposed as, a hypocrite.
25. Second, R argues that, in having the relationship, A1 deceived both A2, and his then manager. A1 does not deny these deceits. A2 now knows the truth. His deceit of A2 is a private matter between them. I can see no public interest in the publication of the fact that some years ago, A1 deceived his then team manager in the way that X said he did. I was shown no material that suggested that there is debate in the general interest about this subject. Nor do I consider that an isolated past deception of a former team manager means that A1 is a hypocrite, or that there is a public interest in exposing him as one.
26. R's third argument is that A1's success as a sportsman has given him the opportunity to earn money by appearing in advertisements. It is said that this is built on his image as a 'clean-living family man'. X's story is a valuable antidote to this false impression, it is said. The high point of the material relied on to show this false image is an interview which A1 gave, shortly after the end of the relationship with X, in which he said he liked to eat at home with his girlfriend. I reject the strained submission that any of the material relied on in this context shows that A1 has misled the public by creating and projecting a false image of himself. There is nothing misleading or untruthful, in my judgment, about any of this material.
27. It is argued that the public interest extends to the exposure of conduct which is socially harmful, as well as conduct which is unlawful. I doubt whether a court is equipped to act as an arbiter of what conduct, falling short of illegality, is 'socially harmful' to the extent that it should be publicly exposed. The court is perhaps even less well-equipped to do this than a newspaper editor. A1's conduct in two-timing A2 for a relatively brief period before they married must have hurt the two women concerned when they found out about it. It is not for me to moralise about such conduct. But I do express a suitably diffident doubt whether this conduct was socially harmful. It caused private pain; but no-one was corrupted or co-erced. The conduct had no ramifications beyond the three people who were affected by it. It did not affect society in any way. If it did not, I cannot see how it could be described as socially harmful. I am conscious that there is a risk that the phrase 'socially harmful' can become a pretext for judging others by reference to moral positions which those others do not, or might not, share. This is a particular risk for a court in an increasingly secular society in which some issues, especially questions of sexual conduct, do not attract the consensus which they once did. In my judgment, few people, other than adherents to strict religious codes, could rationally consider that this conduct is so fundamentally inconsistent with being a role model of the kind which A1 is that there is a public interest in exposing it.
28. I turn to X's position. She has disclosed the information, she says, because she was hurt by A1's 'hypocrisy about the whole situation'. That assertion is not further explained, and I do not understand it. It appears to be based on reasoning after the event, rather than on any reasoning which she could plausibly have engaged in at the time. It is inconsistent with her evidence that even after she found out about A1's relationship with A2, she continued the relationship with him for a time, and even after her relationship with A1 ended, she kept in touch with him, even to the extent of discussing that relationship with him after she disclosed the information. She says that she knows that A1 has lied to A2 about X's relationship with A1. The basis for that is material which I consider in the confidential annex to this judgment. For the reasons I give in that, I consider that that is a fragile basis for any justified sense of outrage on her part. Moreover, on any view, it happened after, not before, she disclosed the information.

Conclusions

29. I have analysed the facts at some length. I can state my conclusions briefly. The interference with the article 8 rights of A1 and A2 which is proposed by R and X is not a proportionate means of achieving a legitimate aim. I was referred by Mr Browne QC to McClaren v News Group Newspapers Limited [2012] EWHC 2466 (QB). I consider that that decision is distinguishable, on two main grounds. First, the Claimant in that case was married at the material time, and second, he had, in the past, sold a similar story about himself to a newspaper.
30. I consider now the proposed exercise by R and X of the freedom conferred by article 10. I can also do this briefly, because the facts which are relevant to the two competing Convention rights are, in this case, the same. In the light of my conclusion about article 8, I consider that the grant of an order restraining publication of this material for a short period is a proportionate means of achieving a legitimate aim. I should deal with two further points here.
31. First, R argued that the story is already in the public domain. I accept that, depending on the extent and content of any publication, that could mean that it would not be necessary or proportionate, for the purposes of protecting the article 8 rights of A1 and A2, for an injunction to be granted, even for a short time. I have compared the material which is already in the public domain (as summarised in R's witness statements) with the proposed story (also as described in R's evidence). In my judgment, there is a significant gap between what is now public and what would become public if the story were published. It is proportionate, in that situation, to restrain publication of that further material. I should also make clear that, in my judgment, the extent to which there is some material in the public domain is not great enough to mean that damages would be an adequate remedy.
32. Second, the As applied for, and I granted, derogations from the principle of open justice. These too, in my judgment, are necessary and proportionate. They will last for a short period, when they can be reconsidered by the court. Without them, the purpose of the application would be defeated, as without them, the parties could be identified.