AAA (by Her Litigation Friend BBB) v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Tomlinson,Lord Justice Ryder |
| Judgment Date | 20 May 2013 |
| Neutral Citation | [2013] EWCA Civ 554 |
| Docket Number | Case No: A2/2012/2391 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2013 |
[2013] EWCA Civ 554
Master of the Rolls
Lord Justice Tomlinson
and
Lord Justice Ryder
Case No: A2/2012/2391
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MRS JUSTICE NICOLA DAVIES DBE
HQ11X00412
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Price QC and Mr William Bennett (instructed by Collyer Bristow LLP) for the Appellant
Mr Desmond Browne QC and Ms Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Respondent
Hearing dates: 29 & 30 April 2013
Approved Judgment
Introduction
The claimant was born on 14 November 2009. She is the daughter of an unmarried professional art consultant ("the mother"). The information whose disclosure by the Daily Mail is the subject of these proceedings relates to the claimant's paternity. I shall refer to this as "the private information". Her alleged father ("the father") is a prominent elected politician. The claimant and the mother first came under the spotlight of media attention a few days before 16 July 2010. On that date, the first Daily Mail article about the claimant and her paternity was published by the defendant. In the preceding week, she had been photographed by London Media, a press agency which sold a photograph of the claimant being pushed by the mother in her buggy ("the photograph") as well as details of the private information to the Daily Mail for publication. Prior to 16 July 2010, the private information had not been in the public domain. The defendant then published a further eight articles, three of which included the photograph and all of which further published the private information. All of the articles and the accompanying photographs were also published on the defendant's website, Mail Online. These proceedings are brought by the claimant's maternal stepgrandfather.
Nicola Davies J awarded £15,000 damages for breach of the claimant's right of privacy by the repeated publication of the photograph. She did not award damages for the publication of the private information. She also refused to grant any injunctive relief to the claimant. She did, however, accept an undertaking from the defendant concerning future publication of photographs of the claimant.
She dismissed the claim in respect of publication of the private information in the first article. She held that, while the claimant had a reasonable expectation of privacy in respect of it, (i) it was a reduced expectation by reason of what the mother had said about the claimant's paternity at a country house weekend in June 2010 and when later interviewed for an article that was published in a magazine (which I shall refer to as "the T magazine") and (ii) the public interest in the information outweighed the claimant's reduced expectation of privacy and justified the publication.
She refused to grant an injunction restraining further publication of the non-photographic information on the ground that so much information was now in the public domain that an injunction to prevent further publication would serve no real purpose.
The claimant appeals against the dismissal of her claim for damages in respect of the private information and the refusal to grant an injunction. The defendant does not appeal against the award of damages in respect of the publication of the photographs.
The article published on 16 July 2010
For the purposes of resolving the issues that arise on this appeal, it is sufficient to refer to the first article that was published by the defendant. The article included the following: "… when the girl was born her appearance shocked him [the mother's partner] and led to jokes that she looked a lot more like [the father]… He [the mother's partner] took a paternity test and discovered that he was not the father, prompting the couple to split." The article referred to a friend of the mother's partner having said: "the gossip among [the mother's partner's] friends was that this child when newborn had shocking wild red hair and bright blue eyes, and we were all saying she looked a lot more like [the father] than [the mother's partner]." The article continued by giving further information about the alleged cause of the split between [the mother] and [the mother's partner] (in particular, the child's appearance), and more about [the mother's partner's] paternity test as well as a quotation from a friend of [the mother] about the [the mother's] initial belief that the father of the unborn child was [her partner]. The article continued: "Only when the child was born did [the mother] join everyone in surprise at the little girl's appearance, saying: 'There is no red hair in my family or [my partner's]'". A little later, the article said: "a friend of [the mother] said 'early last year [the mother] was talking about her relationship with [the father] when she suddenly said 'I slept with him' in a 'God, what have I done?' sort of way. The article said that the friend added: "It came as a shock when [the mother] discovered the father of her daughter wasn't [the mother's partner]. By then she didn't want him having anything to do with the baby …".
The grounds of appeal
There are four grounds of appeal. First, the judge failed to make any or any proper assessment of the claimant's best interests as regards media attention and media publication of information or speculation concerning her paternity and related private information. Secondly the judge was wrong to hold that two factors weakened the claimant's expectation of privacy in this case. These factors were (i) the events at a house party attended by the mother during the weekend of 26 June 2010; and (ii) the interview by the T magazine of the mother in September 2010 which was published in November 2010. Thirdly the judge wrongly held that the claimant's expectation of privacy (weakened as she held it to be) was outweighed by the public interest in the recklessness of the father. Fourthly the judge was wrong to hold that there was a public domain defence for publication of the defendant's subsequent articles and that an injunction to prevent any further publication of information about the claimant's paternity would serve no real purpose.
The role of the Court of Appeal
It is now clearly established that a balancing exercise between articles 8 and 10 of the European Convention on Human Rights ("the ECHR") conducted by a first instance judge is treated as analogous to the exercise of a discretion. Accordingly, an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach: see, for example, Lord Browne of Madingly v Associated Newspapers Limited [2007] EWCA Civ 295, [2008] QB 103 at para 45. In JIH v News Group Newspapers Ltd [2011] EMLR 15 at para 26, Lord Neuberger MR said: "While [the decision of the lower court] did not involve the exercise of a discretion, it involved a balancing exercise, with which, at least as a matter of general principle, an appellate court should be slow to interfere".
In sensitive privacy cases such as the present, but particularly where there are cogent public interest arguments in play, there is a difficult judgement to be made by the court in balancing the competing rights. The balancing exercise requires a detailed appreciation of the evidence that was before the trial judge. She was in the best position to undertake the balancing exercise and had the advantage denied to this court of seeing and hearing the witnesses and making an assessment of them.
The first ground of appeal: failure to consider the claimant's best interests
The general approach of the law to a child's best interests was summarised by Lord Kerr in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 at para 46:
"46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."
In K v News Group Newspapers [2011] EWCA Civ 439, [2011] 1 WLR 1827, Ward LJ cited this passage at para. 19 describing it as the proper approach in the context of an application for a privacy injunction. Nicola Davies J cited both passages at paras. 60 and 61 of her judgment. She also referred to section 12(4)(b) of the Human Rights Act 1998 which required her to have particular regard to the importance of ECHR rights to freedom of expression and, where the proceedings relate to material which appears to the court to be journalistic material, to have regard to "any...
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