(1) TSE (2) ELP v News Group Newspapers Ltd

JurisdictionEngland & Wales
JudgeMr Justice Tugendhat
Judgment Date23 May 2011
Neutral Citation[2011] EWHC 1308 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ11X01785
Date23 May 2011
Between:
(1) TSE (2) ELP
Claimants
and
News Group Newspapers Ltd
Defendant

[2011] EWHC 1308 (QB)

Before:

The Honourable Mr Justice Tugendhat

Case No: HQ11X01785

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Andrew Caldecott QC (instructed by Schillings) for the Claimants

News Group Newspapers Ltd did not appear and was not represented in court but a written argument was submitted for it by

Richard Spearman QC (instructed by Farrar & Co LLP)

Hearing date: 19 May 2011

Mr Justice Tugendhat
1

On 19 May 2011 I granted an injunction to prohibit the publication of (a) any information tending to identify the Claimants as having had a sexual relationship with one another; or tending to identify either of the Claimants as having had an affair, or (b) any other information identifying or in any way tending to identify the Claimants or either of them as being the persons who have applied for this order, save for that contained in the public part of the order I made on 19 May or in this public judgment.

2

The hearing on 19 May was held in public. The order of 19 May is a public document. It is available to be inspected, except the Confidential Schedule. The hearing on 13 May had been held in private. Sharp J did not deliver a public judgment in view of the imminence of the return date. This judgment includes all that needs to be said about the hearing on 13 May. A detailed note of that hearing was kept and has been provided to me. It was made by Laura Tyler of the Claimants' solicitors.

3

These are the circumstances in which I made the order and the reasons why I made it.

4

The case concerns an adulterous relationship between the Claimants where both the man and the woman want to preserve their privacy. Neither of them is the source of NGN's information. The male Claimant, referred to as TSE is a married footballer.

5

On 13 May Sharp J made an order substantially to the same effect. That order was stated to run until 19 May ("the return date"). On 16 May both the Claimants and the Defendant ("NGN") were represented by leading counsel. NGN did not resist the injunction, but it did not consent to it, or offer undertakings to the court. It adopted the same stance on 19 May. Mr Spearman submitted a written argument to the court stating that NGN did not resist the making of the order but did not consent to the making of it. He did make submissions on the form of the order, all of which Mr Caldecott accepted, with the result that when Mr Caldecott came to court he was able to produce to me an order which was in terms which Mr Spearman had agreed were appropriate in the event that the court decided to make the order at all.

6

The form of the order I made, and the stance adopted by NGN are similar to another case in which Sharp J handed down a written judgment on 11 May: MJN v News Group Newspapers Ltd [2011] EWHC 1192 (QB).

NO CASE ADVANCED ON PUBLIC INTEREST

7

NGN did not advance any argument that publication ought not to be prohibited in the public interest. This point is considered further below.

THE BACKGROUND

8

On 12 May 2011 a journalist working for The Sun contacted a representative of the man's club to inform him that The Sun intended to run a story on 13 May alleging that the man had conducted an adulterous relationship with the Claimant referred to as ELP.

9

In a witness statement made by him the man states that the information in question has hitherto been private and explains the effect that he says that publication of this information would have if it were published. It would have a devastating effect on his marriage, on his wife and particularly their children. He states that it has become common for footballers whose private lives are exposed by the media to be booed during games and be the subject of cruel chants.

10

ELP states that a reporter from The Sun came to where she lived some months ago. She met him on the doorstep. He referred to the relationship with the man and said that The Sun would be willing pay a lot of money for that story. She said she would not talk and asked the reporter to leave. She does not know the source of the story. She did not, and does not, want the story to be published. She subsequently received messages from the reporter asking her to talk, but she did not reply. She received a call from Ms Tyler and instructed Schillings to act for her in these proceedings.

11

Ms Tyler made a witness statement dated 13 May. In it she recounts conversations between herself and Mr Walford of NGN. In one conversation Mr Walford stated that NGN believed it was in the public interest to publish that the man was having an extra-marital affair because "we are exposing his hypocrisy". That argument was not advanced to Sharp J and has not been advanced before me. No doubt NGN came to appreciate that, in the light of numerous judgments by different judges of the House of Lords, of the Court of Appeal, of this court and of the European Court of Human Rights, it had no prospect of success. Some of these cases are cited below.

THE HEARING BEFORE SHARP J

12

The Claimants asked for the hearing to be, and it was, held in private because it was necessary to inform the court of the information in respect of which the Claimants were seeking an injunction. A public hearing would have defeated the purpose of the application.

13

Ms Tyler asked for, and Sharp J granted, anonymity for the Claimants because they expected that if their names were given, that would lead to serious intrusion into the private lives of themselves and their families.

14

If an injunction to restrain the disclosure of private or confidential information is to be effective, the court must either grant anonymity to the claimants, or refrain from giving any information in the order or any judgment about the nature of the information. Naming the claimants in this case would in practice also disclose the nature of the information sought to be protected. So the Claimants asked not to be identified. Sharp J was satisfied that that was necessary if an effective order were to be made at all. I too am satisfied that that continues to be necessary.

15

On 18 May Ms Tyler made a second witness statement. In it she informed the court of the identities of the media organisations which had been served with the order: Associated Newspapers, Express Newspapers, Guardian Media Group, Independent News and Media, MGN, Telegraph Media and Times Newspapers.

THE LAW OF PRIVACY

16

The Court is bound by the Human Rights Act 1998 (" HRA"). According to that, the Claimant must first establish that his or her right to respect for private life under Art 8 is engaged (that is whether the information is in principle private), and second that relief is appropriate having regard to Art 10, the right to freedom of expression, and the matters set out in s.12(3).

17

As to the first question, Mr Caldecott submits the following, which cannot be disputed. It is now clear the test is whether the Claimant had a reasonable expectation of privacy in relation to the information in question. See McKennitt v Ash [2008] QB 73 per Buxton LJ (with whom Latham and Longmore LJJ agreed, at para 11, further cited in Murray at para 27).

18

The question is objective. As Lord Hope put it in Campbell v MGN Ltd [2004] 2 AC 457: " The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant.." In Murray v Express Newspapers Ltd [2009] Ch 481 the Court of Appeal stated: " The question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They 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 and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.." [para 36]

19

As to the second, In Re S [2005] 1 AC 593 Lord Steyn identified four propositions as emerging from Campbell v MGN Ltd as " the new methodology" to be applied by the courts where both articles 8 and 10 are engaged:

(i) Neither article has as such precedence over the other.

(ii) 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.

(iii) The justifications for interfering with or restricting each right must be taken into account,

(iv) The proportionality test must be applied to each. For convenience Lord Steyn calls this " the ultimate balancing test."

20

It is clear that the performance of Lord Steyn's ' ultimate balancing test' requires an " intense focus on the comparative importance of the specific rights being claimed in the individual case"; and that such applications " fall to be decided not on the basis of rival generalities but by focussing on the specifics of the rights and interests to be balanced in the individual case". See In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, at para.17 and Clayton v. Clayton [2006] EWCA Civ 878; [2006] Fam 83 at para 64 (Sir Mark Potter P).

21

According to s.12(3) of the HRA, an injunction before trial is not granted unless the court is satisfied that the applicants are likely to establish that publication should not be allowed. And in coming to its finding on that the court is obliged to and does have regard to the matters set out in s.12(4), which reads:

"(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...

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