Christopher Hutcheson (formerly known as "KGM") v News Group Newspapers Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Etherton,The Master of the Rolls |
| Judgment Date | 19 July 2011 |
| Neutral Citation | [2011] EWCA Civ 808 |
| Docket Number | Case No: A2/2010/2863 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 2011 |
[2011] EWCA civ 808
The Master of the Rolls
Lord Justice Etherton
and
Lord Justice Gross
Case No: A2/2010/2863
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
Mr Justice Eady
HQ 10X04600
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Tomlinson QC and Ms Sara Mansoori (instructed by Schillings) for the Appellant
Ms Adrienne Page QC and Mr Jacob Dean (instructed by Farrer & Co) for the First Respondent
Ms Heather Rogers QC (instructed by Davenport Lyons) for the Second Respondent
Mr Mark Warby QC (instructed by Reynolds Porter Chamberlain) for the Third Respondent
Hearing dates: 24 th & 25 th May 2011
INTRODUCTION
This has been the appeal of the Appellant, "KGM" as he was originally styled, from the Judgment of Eady J, dated 1 st December, 2010 ("the judgment"), refusing him a "privacy" injunction against the First Respondent ("NGN"). The judgment also dealt with an issue which arose between KGM and the Second and Third Respondents ("MGN" and "ANL" respectively).
At the conclusion of the hearing, we indicated that KGM's appeal in respect of NGN would be dismissed, with our reasons to follow. These are my reasons.
Various consequences followed from giving our decision at once. First, it necessarily followed that KGM can now be referred to by his name – Mr. Christopher Hutcheson ("Mr. Hutcheson") — a course I propose to follow in this judgment. Secondly, this judgment can be and is a public judgment. Thirdly, there was no longer any need for the judgment of Eady J to remain a Judgment in Private, albeit that some very few redactions remain in place, for extraneous reasons which need not take up time here. Fourthly, the issue between Mr. Hutcheson and MGN and ANL became academic, so that no more need be said of it.
In essence these proceedings concerned Mr. Hutcheson's application to restrain NGN from publishing information in the following categories:
i) As to the fact of his relationship with Frances Styles;
ii) As to the fact that he is the father of Christopher and Victoria (of whom more below);
iii) As to Frances and their children (i.e., Christopher and Victoria) being Mr. Hutcheson's "second family".
I gratefully adopt, from the judgment, Eady J's concise summary of the factual background:
" 10. The information in respect of which the Claimant seeks to maintain confidentiality falls within a very narrow compass. In 1968 he married a lady with whom he had four children, who are now grown up. The marriage still subsists. In the meantime, from about 1976 he developed a relationship with another woman with whom, in 1979 and 1981 respectively, he had two children. Obviously, they too are now adults. For many years, however, the Claimant managed to keep the information about his 'second' family secret, to a greater or lesser extent. How far he succeeded in this intention has been a matter of debate in the light of the limited evidence available. The position now is that, finally, all members of the Claimant's 'first' family are aware of the situation, although I am told that one of his daughters was only informed two or three weeks ago. She was told by her husband, who himself had known of the 'second' family only since the beginning of last year.
11. The Claimant's case is that the information is no more widely known than among his two families and that it is not 'public knowledge'. He says that he still has a reasonable expectation of keeping his 'second' family secret, in the sense that he should not be identified as being the father of the two children in question or as having had a relationship with their mother.
12. I need to explain how it is that the information has become of interest at this point and why The Sun newspaper wishes to make it public by way of an 'exclusive' story.
13. It so happens that the daughter who only found out recently about her father's 'second' family is married to the chef and businessman Gordon Ramsay. The Claimant was until recently associated with Gordon Ramsay in business. He was the chief executive of Gordon Ramsay Holdings Ltd and Gordon Ramsay Holdings International Ltd which, together with various subsidiaries, constitute the Gordon Ramsay Group. In October of this year [i.e., 2010], however, the Claimant was dismissed.
14. Since that time, there has been a very public slanging match between Gordon Ramsay and the Claimant in the columns of various newspapers. Each of them has been making unappetising allegations about the other. This has not been confined to business matters. I was shown, for example, an 'open letter' from Gordon Ramsay to the Claimant's wife in which he refers to her estrangement from her daughter (Mrs Ramsay) and her grandchildren and calls for a degree of reconciliation. On the other hand, the Claimant for his part puts the blame for the estrangement on Gordon Ramsay."
As recorded by Eady J (judgment, at [15] – [16]), The Sun (part of NGN) wished to pursue an allegation, based on an unidentified "source", that Mr. Hutcheson was dismissed from Gordon Ramsay Holdings because he had been using company monies to fund his second family.
In the event, Eady J refused to grant the relief sought by Mr. Hutcheson. The learned Judge based himself on the well-established test, with which neither party could nor did take exception:
" 5. …..it is clear that an applicant who seeks to restrain publication of personal information will need to approach the matter in two stages. First, it is necessary to demonstrate that he has a reasonable expectation of privacy in respect of the subject-matter in question, having regard to Article 8 of the European Convention on Human Rights and Fundamental Freedoms. If that hurdle is overcome, it next has to be shown that there is no countervailing public interest sufficient to outweigh his right to protect that information. At the second stage, the court will apply what has been termed 'an intense focus' to the particular circumstances of the case, in order to arrive at a determination of where the balance lies between the competing rights concerned……"
As to the first issue, namely whether Mr. Hutcheson could persuade the Court that he had a "reasonable expectation of privacy" in respect of the information about his second family, the Judge's conclusion was as follows (at [36]):
"36. I would accept that article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the 'second family' or to the Claimant's extra-marital relationship. It is a 'bare fact' case; that is to say, the court is concerned only with the bare fact of the familiar relationship……Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the 'second family'."
Strictly speaking, as Mr. Hutcheson had failed at the first hurdle, Eady J's conclusion – that there was no reasonable expectation of privacy as to the fact of the second family – was sufficient to decide the application adversely to him. Nonetheless, Eady J went on to consider the "ultimate balancing exercise" required at the second stage. Here, the Judge's conclusion, again adverse to Mr. Hutcheson, appears from the following paragraphs of the judgment:
" 40. In the present case, ….[NGN]…wish to have the opportunity, in reliance upon their well placed source, to publish allegations relating to the supposedly true reason for the Claimant's dismissal from the Gordon Ramsay Group, which was said to involve his having misapplied corporate resources in some way connected with his 'second family'. That the newspaper is entitled to do subject, of course, as always, to the constraints of the law of libel. The Claimant cannot rely on the law of privacy to prevent that…..
41. Furthermore, I referred earlier to the Claimant's highly publicised attacks on Gordon Ramsay, both in relation to the way he runs his business and as to this supposed responsibility for the breakdown of relations between his wife and her parents. It seems that there may be another side to this, and that the estrangement may not be wholly unconnected with the Claimant's double life and Mrs Ramsay's recent discovery of the true position. The Claimant can hardly expect to have it all his own way and to use the court's processes to cover up the true position or to prevent Gordon Ramsay from responding to his allegations by using the full facts at his disposal. It can thus be readily understood, in this particular case, that it would be very difficult to draw hard and fast boundaries between 'zones' – whether business or familial in nature. According at least to this newspaper's source, the two seem to be intertwined."
Ultimately (at [42] of the judgment), the Judge observed that there was much in dispute and that it was impossible for the Court to come to a "definitive conclusion" as to where the truth lay regarding "these very public quarrels – relating, as they do, to both business and family matters". In the circumstances, Eady J posed the question, as required by s.12(3) of the Human Rights Act 1998 ("the HRA"), whether Mr. Hutcheson...
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