CC v AB
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 04 December 2006 |
| Neutral Citation | [2006] EWHC 3083 (QB) |
| Docket Number | Case No: HQ06X03058 |
| Court | Queen's Bench Division |
| Date | 04 December 2006 |
[2006] EWHC 3083 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Eady
Case No: HQ06X03058
Mark Warby QC (instructed by Henri Brandman & Co) for the Claimant
Edward Bartley Jones QC (instructed by Jackson & Canter) for the Defendant
Hearing date: 15th November 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In this case the Claimant (CC) conducted an adulterous relationship for some months with the Defendant's wife, and now seeks the court's assistance in preventing him from telling anybody about it. There is no direct precedent for this, so far as I am aware, and it does not at first glance appear to be a very compelling case.
What is the cause of action? (Clearly, if reliance were placed on defamation, there would be no prospect of an injunction if the words the Defendant wishes to publish would be susceptible to a defence of justification: Bonnard v Perryman [1891] 2 Ch 269.) Since it is not yet recognised that English domestic law offers an enforceable right to privacy, as such, it has been put on the basis that any such communication would be a breach of confidence; alternatively, that the Defendant (AB) should be restrained from harassing the Claimant contrary to the provisions of the Protection from Harassment Act 1997. That is based primarily upon certain abusive communications which the Claimant has received from the Defendant by way of e-mail and telephone.
The first of the causes of action relied upon entails the striking proposition that a spouse whose partner has committed adultery owes a duty of confidence to the third party adulterer to keep quiet about it – even without any voluntary assumption of such an obligation.
Before proceeding further, however, it is appropriate to add in some further elements revealed by the evidence in this particular case.
First, the Defendant has made it clear in a number of threatening communications, and indeed in his evidence to the court, that he wishes to reveal the information partly out of revenge and partly to make money for himself by selling the story to the media.
Whether the Defendant's motive has anything to do with it is a matter for closer consideration. It may be thought that a citizen's right of free speech is not dependent on the motive or the motives governing its exercise: see e.g. the observations of Lord Nicholls, in the context of fair comment, in Tse Wai Chun Paul v Albert [2001] EMLR 31. On the other hand, it is a factor which Mr Warby QC for the Claimant argues is at least relevant to be taken into account when, if that stage is reached, it becomes necessary to weigh competing rights against one another. It is now recognised in Strasbourg and domestic jurisprudence that there are different categories of "speech" to which greater or lesser importance may be attached (e.g. what has been called "political speech" versus "vapid tittle-tattle"): see Campbell v MGN Ltd [2004] 2 AC 457 at [147]-[149]. The purpose for which the Defendant wishes to exercise his freedom of speech could be relevant in that context.
Secondly, the evidence at the moment appears to indicate that neither of the parties to the sexual relationship in question wishes either the fact of it, or any details about how it was conducted, to be made public. Certainly not the Claimant and, although there is nothing directly from the Defendant's wife (N), such evidence as is currently available suggests that she takes the same view.
There is a powerful argument that the conduct of an intimate or sexual relationship is a matter in respect of which there is "a reasonable or legitimate expectation of privacy". Accordingly, anyone who obtains such information would be expected to recognise that, either from the nature of the information itself or from the circumstances in which it was imparted. If that is so for journalists, or for scandal mongers in general, it is a matter for consideration whether, and to what extent, a "cuckolded" husband is under a lesser obligation.
Thirdly, the Claimant says that he is now seeking to reconstruct his family life and is concerned for the interests of his own wife and young children. Even if the Defendant is correct in attributing the blame for their problems to the Claimant himself, Mr Warby argues that there is no reason why the wife and children should suffer more than is necessary and, in particular, through the stresses and strains of press intrusion. He suggests that the court should have regard to their rights, especially in the context of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, in determining the current dispute, even though they are not themselves parties.
Fourthly, there is an extra dimension to this aspect of the case which is perhaps even more troubling. The Claimant's wife is suffering stress and anxiety which requires medical attention (attested to by medical evidence) and which is quite likely to be made worse by press exposure. There is also (non-medical) evidence of self-harm and of threats to commit suicide. It is this factor, in particular, which has led editors so far to hold back from publication and has meant that the Defendant has hitherto been frustrated in his efforts to exploit the situation for gain. He himself has not been deterred by this at all. He says it is just "bullshit" and portrays himself as the victim, absolved from any responsibility for the consequences of his actions. His attitude is that he is entitled to his revenge on the Claimant, and if possible also to some financial gain; if his own wife, or the Claimant's wife or his children, suffer incidental fallout, then that is the Claimant's fault.
Fifthly, it is the Claimant's case (albeit contested) that at the time of the "affair" he did not know that N was married. She did not wear a wedding ring and made no mention of having a current partner.
Against this unhappy background, Mr Bartley Jones QC for the Defendant has argued strongly for a principle to the effect that "a party to an adulterous relationship can never, as a matter of law, obtain injunctive relief (interim or permanent) against the wronged party preventing him from disclosing the relationship".
If no such principle of law can be demonstrated from case law in the 19 th or 20 th centuries, it seems curious that it should now emerge fully formed in the 21 st. So broadly stated, it cannot be correct. The approach now adopted by domestic courts, in the light of Strasbourg jurisprudence, is to determine particular conflicts between Convention rights, where they are shown to be engaged, by bringing to bear an "intense focus" on the facts of the individual case, rather than by purporting to create general principles of law judicially: see e.g. Re S [2005] 1 AC 593 at [17] and Campbell v MGN Ltd [2004] 2 AC 457.
It may be helpful to have in mind in this context the observations of Sir Mark Potter P in A Local Authority v W [2005] EWHC 1564 (Fam) at [53] on how the court is to apply the new methodology once it is clear that conflicting Convention rights are engaged:
"The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus upon the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out".
Applying this language, is seems to me that the principle tentatively fashioned by Mr Bartley Jones could properly be characterised as a "generality", which would simply pre-empt the required " parallel analysis" and "intense focus" on the unique facts of the case. The approach of the House of Lords in the recent cases would appear to confirm the validity of a comment made by Sedley LJ, in Douglas v Hello! Ltd [2001] QB 967 at [137], to the effect that the outcome is likely to be determined by considerations of proportionality.
The starting point must be to determine whether relevant Convention rights are here engaged. There is no doubt that the Defendant's right of freedom of expression is indeed engaged. The whole object is to restrain him in this regard. The European Court of Human Rights has noted that "the dangers inherent in prior restraint are such that they call for the most careful scrutiny": Observer Ltd and Guardian Newspapers Ltd v United Kingdom (1991) 14 EHRR 153 at [60]. So too in Wingrove v United Kingdom (1996) 24 EHRR 1 at [58] it was said that where prior restraint is involved "special scrutiny by the court" is required.
"There cannot as yet be said to be a 'bright-line' rule against judicial prior restraint in ECHR law. However, it is clear that prior restraints are viewed as pernicious and that, to be upheld as justifiable, their use will have to be viewed as appropriate, proportionate, and absolutely necessary": C Munro, Prior Restraint of the Media and Human Rights Law, (2002) Juridical Review 1 at 23. This passage is, of course, consistent with the terms of Article 10 (2) itself.
The question would seem to be whether I come to the conclusion, having applied "careful scrutiny" and "an intense focus" to the facts disclosed in the evidence before me, that there...
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