Donald v Ntuli
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Sedley,The Master of the Rolls |
| Judgment Date | 16 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1276 |
| Docket Number | Case No: A2/2010/1176 + 1176A |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 2010 |
[2010] EWCA Civ 1276
Mr Justice Eady
Before: The Master of the Rolls
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
and
Lord Justice Sedley
Case No: A2/2010/1176 + 1176A
REF NO: HQ10X01177
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Hugh Tomlinson QC and Mr Mark Lewis, Solicitor Advocate (instructed by JMW Solicitors LLP) for the Appellant
Mr David Sherborne (instructed by Schillings) for the Respondent
Ms Heather Rogers QC for Guardian News & Media Ltd (Intervener)
Hearing date: 5 October 2010
Lord Justice Maurice Kay:
On 26 April 2010 Eady J granted an anonymised claimant an injunction restraining an anonymised defendant from doing specified but unpublishable things and further restraining the defendant and others from publishing the fact that the injunction had been sought and obtained. This type of relief has become known as a superinjunction. On this appeal the appellant/defendant seeks the discharge of the injunction in its entirety or, in the alternative, complains about its substantive terms. She also contends that the orders for anonymity and the non-disclosure of the application for and existence of the injunction were inappropriate. There is a cross-appeal whereby the respondent/claimant contends that the substantive injunction did not go far enough.
It will facilitate the writing and, indeed, reading of this judgment if I set out the result of the appeal and of the cross-appeal at the outset. It is that the substantive injunction will remain but the order for anonymisation of the parties and the non-disclosure of the application for and the existence of the injunction will be discharged. The judgment will be a public judgment. For this reason, some of it will be expressed in muted or anodyne terms.
The respondent/claimant is Howard Donald, one of the hugely successful “boy band” Take That. He has never married but he has had a number of relationships and he is the father of two children. The appellant/defendant is Adakini Ntuli. She is also a musician but is now a full-time single parent of two children. Mr Donald is not their father. During some of the time since 2000, Mr Donald and Ms Ntuli had a relationship. Its duration and intensity are matters of dispute. They did not cohabit. Mr Donald was also in other relationships during the same period. By the end of 2009 at the latest, the relationship between Mr Donald and Ms Ntuli seems to have come to an end. On 17 March 2010 she sent him a text message which included these words:
“Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”
This led to communication between the parties and eventually between solicitors. Before the solicitors became involved, Ms Ntuli secured the services of Max Clifford, the well-known publicist, and she entered into negotiations with the News of the World.
On 25 March, Mr Donald made an ex parte application (on notice) to Eady J and obtained an interim injunction. In addition to restraining the publication, use or disclosure of scheduled categories of confidential information or the existence of the proceedings, it provided for anonymisation of the parties. It provided for a return date and the privacy of the hearings, together with the sort of directions which are commonly used in order to underwrite the security of such injunctions.
Following a two day hearing on the return date (30 March), Eady J reserved judgment until 26 April when judgment was handed down and, following submissions by counsel, the order which is the subject of the present appeal was made. It continued the anonymisation and the non-disclosure of the existence of the proceedings. In some respects it modified the terms of the substantive injunction. It will be sufficient for present purposes if I set out the selected parts of the order.
The principal substantive restraint in the original order restraining the publication of confidential information contains a proviso which was modified so as to read:
“PROVIDED THAT nothing in this paragraph of this Order shall prevent the Defendant from publishing, communicating or disclosing the following
(a) any material that before service of this Order was already in, or that thereafter comes into, the public domain …; or
(b) the fact that the Claimant had a relationship with the Defendant; AND PROVIDED FURTHER THAT nothing in this paragraph of this Order shall prevent the Defendant from discussing any of the material which she has already discussed or wishes to discuss with any family member or close friend, nor from disclosing to any such family member or close friend the existence of these proceedings or the Claimant's interest in them.”
The Schedule of confidential information subject to the restraint upon publication, communication use or disclosure included this provision:
“Any intimate, personal or sexually explicit details about the relationship … including any facts of a sexual nature.”
Another category referred to “intimate or sexual activity”. The order also contained undertakings by Ms Ntuli.
On this appeal, the respective stances of the parties are that Mr Donald maintains that the injunction ought to extend to a restriction upon publication, communication or disclosure of the mere fact of the fact of the relationship (subject to the family and close friend proviso), whereas Ms Ntuli maintains that, in the light of further undertakings which she offered to Eady J, there ought not to have been an injunction at all. Alternatively, she contends that the injunction is too vague, particularly in relation to the use of the word “intimate”. In any event, her case is that the orders for anonymisation and non-disclosure of the existence of the proceedings are inappropriate. In this clash of human rights, Mr Donald seeks to uphold his privacy rights by reference to Article 8 of the ECHR and Ms Ntuli relies on her right to freedom of expression under Article 10. More mundanely, there is also an issue as to the order for costs made by Eady J. He ordered Ms Ntuli to pay two thirds of Mr Donald's costs of the application.
Should Eady J have granted an injunction?
Prior to the coming into force of the Human Rights Act 1998, the approach to cases such as this lacked coherence in domestic law. However, the basic principles of substantive law are now well-settled. In Re:S (a child)(Identification: Restrictions on Publication) [2005] 1 AC 593, at paragraph 17, Lord Steyn extracted four propositions from Campbell v MGN Ltd [2004] 2 AC 457:
“First, neither Article [ 8 or 10] has as such precedence over the other. Secondly, 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. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test.”
So far as Article 8 is concerned, the ambit of private life was explained by Lord Nicholls in Campbell (at paragraph 21):
“Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”
The authorities were rigorously reviewed by Buxton LJ in McKennitt v Ash [2008] QB 73, [2006] EWCA Civ 1714, where he said (at paragraph 11):
“… in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by Article 8? If ‘no’, that is the end of the case. If ‘yes’, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10? The latter inquiry is commonly referred to as the balancing exercise.”
He had previously (at paragraph 8) described that case as “what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply the purloining of private information”. The present case can be so categorised.
In his judgment, Eady J adopted a distinction drawn by Lord Hoffmann (dissenting) in Campbell (at paragraph 60) where he said:
“The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too obtrusive and demeaning.”
So far as “salacious details” are concerned, Eady J considered that the court “should make every attempt to recognise” Lord Hoffmann's distinction and grant relief accordingly in relation to facts of a sexual nature or other intimate personal details about a past relationship. He added that
“… these would be matters in respect of which the Applicant would have a reasonable expectation of privacy, unless it could be shown that there was a countervailing...
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