CDE and FGH v MGN Ltd and LMN (Privacy: Interim Injunction)

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Eady
Judgment Date16 Dec 2010
Neutral Citation[2010] EWHC 3308 (QB)
Docket NumberCase No: HQ10X02718

[2010] EWHC 3308 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

SITTING IN PRIVATE

Before :The Honourable Mr Justice Eady

Case No: HQ10X02718

Between
(1) Cde
(2) Fgh
Claimants
and
(1) Mgn Ltd
(2) Lmn
Defendants

Desmond Browne QC (instructed by David Price Solicitors & Advocates) for the Claimants

James Price QC for the Defendants

Hearing dates: 28 —29 July 2010

Publication of any report as to the subject matter of these proceedings or the identity of the Claimants is limited to what is contained in this judgment

Mr Justice Eady
1

On 28 and 29 July 2010 I heard an application on the Claimants' behalf to continue an interim injunction originally granted on 16 July. Further submissions in writing were received in August, September and October from both sides. Then in November there was yet further evidence submitted and even a request for another oral hearing. Eventually, by the first week in December the parties decided that this was unnecessary but that I should receive more written submissions (on the maintenance of anonymity). The last were received on 13 December. This accounts for the considerable delay in delivering the judgment. It has led to regrettable additional anxiety and stress for those immediately concerned.

2

The claim is based upon apprehended infringements of rights of confidence and/or privacy under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. This is a jurisdiction in which the decisions to be made are rarely straightforward. By contrast with the suggestion made by Lord Woolf CJ in the Court of Appeal in A v B Plc [2003] QB 195, it has proved, following the House of Lords' decisions in Campbell v MGN Ltd [2004] 2 AC 457 and in Re S (A Child) [2005] 1 AC 593, that the answer in most cases is far from obvious. Nevertheless, Parliament has clearly imposed upon judges, through s.12(3) of the Human Rights Act 1998, the burden of determining at this preliminary stage, almost always on incomplete or partial evidence, whether an injunction is likely to be granted at trial. Guidance has been given by the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, but that does not make it any easier. There are no hard and fast rules. It is a question of weighing up competing Convention rights and forming a judgment on the unique facts of each case.

3

As is so often required in these cases, I shall need to tread a careful path, so as to make my reasons comprehensible to any interested reader while, at the same time, trying not to include material that would be unnecessarily intrusive or embarrassing to the parties.

4

The First Claimant often appears on television and is married to the Second Claimant. They have always guarded their private lives closely and have never sought publicity. They have teenage children whose interests they are also concerned to safeguard. The application is intended to protect them all, so far as possible, against the inevitable intrusion a newspaper publication would make into their private and family lives.

5

The Second Defendant is a single mother in receipt of disability benefit. It seems from the evidence that she had suffered from time to time with mental health problems. She has only ever met the First Claimant face to face on two occasions, in April 2009, when he made brief visits to her home. She nevertheless conducted a kind of quasi-relationship with him "on and off" between about March 2009 and February 2010 by means of telephone, texts, emails and tweets. Intimate and personal thoughts were exchanged and there was also a good deal of flirtation and sexual innuendo. She now wishes to sell her story to the Sunday Mirror, although it is said that she is not motivated by money. A "confidential agreement" has already been entered into with the paper. The publisher of the newspaper has been joined to these proceedings as the First Defendant.

6

Any such publication is likely to prove distressing to the Claimants, and almost certainly to their children also, and the proceedings are brought in an attempt to avoid that. Although there can be little doubt that the coverage contemplated would be intrusive upon the Claimants' family life and bring bewilderment and distress to their children, it is correspondingly true also of the Second Defendant's family. She too has a young daughter (and another who is now an adult). I have no doubt that these are all persons whose Article 8 rights are currently engaged: see now Donald v Ntuli [2010] EWCA Civ 1276 at [24]. It is also the case that the Defendants' Article 10 rights are in issue and have to be weighed alongside.

7

There is evidence before me as to the likely impact upon the Second Claimant's health and as to parental concerns about the impact upon the children in the school environment. As I understand the attitude of the newspaper, it is simply that a married man cannot be accorded greater rights or consideration by the court than a single man and, in so far as there may be any impact on his family, that is too bad. Yet it is now well established that the first question a court has to address on applications of this kind is whether Article 8 rights are engaged. As to that, the threatened publication would undoubtedly engage the Article 8 rights of all the persons I have identified. The fact that the First Claimant has a wife and children simply means that there are more persons whose rights have to be taken into account. They cannot simply be ignored on the basis of traditional arguments along the lines of who has a cause of action and who does not. Since they would at least potentially be affected by the exercise of the Defendants' Article 10 rights, their Article 8 rights have to be weighed in the balance.

8

There can be little doubt of the likely impact of publication on the First Claimant's life. It was articulated by the Second Defendant herself who told a Sunday Mirror journalist, in their initial conversation on 6 July, "I just don't want it to wreck his life, because he doesn't deserve it … we all make mistakes, don't we, and I don't think we should crucify him for it". It was hardly an exaggeration on her part to suggest that the lives of the Claimants and their family would be "wrecked" – at least for a significant time. Their counsel, Mr Desmond Browne QC, has laid emphasis on the protection afforded by Article 8, specifically, to family life and on the plea contained in the Second Claimant's evidence to be given the opportunity to rebuild their marriage in private. She herself has apparently lost a stone in weight.

9

The attitude of the Second Defendant was fairly consistent for several days at the beginning of July, in that she too regarded all this material as private and she herself then had no wish to see it exposed in the media. She first had an inkling of press interest when she was apparently door-stepped at the end of June by a female journalist representing the News of the World. She spoke of a "tip" that the Second Defendant and the First Claimant had had an affair and that he had left his wife. This was clearly inaccurate in that no "affair" in the conventional sense of that term had taken place. In so far as there was any such relationship, it could only be characterised as "virtual". Moreover, the First Claimant had only "left" the Second Claimant, for a few days in April 2009, in what has been described (by the Second Defendant) as a marital "blip". It was so fleeting a separation that their children were not even aware of it.

10

The News of the World journalist had gone on to use what Mr Browne called "the standard journalistic ploy" to secure co-operation from an unwilling source. In the Second Defendant's words, "She told me that the story was going to get out, and so I should give my side of it – so that I would have some kind of control over it". She was naturally anxious about it and spoke to the First Claimant. He was also concerned and feared that "his life was going to collapse". That conversation took place on the morning of 30 June, after he rang in response to a text message from her of the night before.

11

It seems, however, from the evidence of the Second Defendant's [public relations adviser, Mr X], that she had already seen him by this time. He claims that they first met on 29 June and there is no reason to doubt it. She says that she made contact with him on the recommendation and introduction of a Facebook "friend" (a journalist who wishes to remain anonymous). She told Mr X at the first meeting that she wanted the story stopped if possible. That seems to have been her purpose in consulting him. He gave some degree of encouragement to her on 2 July, stating that he thought that it would not get out. Unfortunately, rumours had already begun to appear on various websites. How this story leaked out is not known, but there is clearly a limited range of possible sources.

12

The Second Defendant texted the First Claimant that evening: "Bloody papers. My worst nightmare". She was still concerned about the story appearing in the media because of the impact on herself and her family; in particular, because she did not want to be portrayed as a person who had supposedly had an affair.

13

The next day, 2 July, as she informed the First Claimant, she felt that she was "being pushed from all angles by everyone". She feared that she would be made to look like a "marriage wrecker". She again used the phrase "worst nightmare". Sadly, when she had been in a clinic in 2003 receiving treatment for mental health problems, she had been assaulted and abused by a male nurse – who has subsequently been convicted of a criminal offence. She received a large sum by way of compensation. He took advantage of her, it seems, while she was under the influence of prescribed drugs which he administered to her. She had...

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