Douglas v Hello! Ltd (No 1)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BROOKE,LORD JUSTICE SEDLEY
Judgment Date21 Dec 2000
Judgment citation (vLex)[2000] EWCA Civ J1221-14
Docket NumberCase No: Proforma

[2000] EWCA Civ J1221-14

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(Hunt J)

Royal Courts of Justice

Strand, London,

WC2A 2LL

Before :

Lord Justice Brooke

Lord Justice Sedleylord Justice Keene

Case No: Proforma

Michael Douglas
Catherine Zeta-jones
Northern & Shell Plc
respondents/claimants
and
Hello! Limited
appellants/defendants

Michael Tugendhat QC and David Sherborne (instructed by Theodore Goddard for the Respondents) Henry Carr QC and Giles Fernando (instructed by Charles Russell for the Appellants)

LORD JUSTICE BROOKE
1

On 22nd and 23rd November 2000 we heard an appeal by the defendants Hello! Ltd against an injunction granted by Hunt J on 21st November restraining them until trial or further order from publishing or further publishing photographs of the first and second claimants Michael Douglas and Catherine Zeta-Jones taken at their wedding at the Plaza Hotel New York on 18th-19th November 2000. The judge's order also granted the claimants other relief, the precise details of which are immaterial for the purposes of this judgment.

2

We discharged the injunction at the end of the hearing of the appeal and said that we would give our reasons for allowing the appeal in due course.

3

The defendants are the proprietors of Hello! magazine. The third claimants Northern & Shell plc are the proprietors of OK! magazine. These two magazines are rivals in the same market. At the time we heard the appeal the most recent circulation figures from the Audit Bureau of Circulation ("ABC") showed that they were neck and neck, with Hello! showing an average weekly circulation of 458,663, and OK! lagging slightly behind at 455,162. Mr Ashford, who is the editorial director of OK!, has told the court that the ABC rating at the end of the ABC year has an enormous effect on the rates which magazines can charge advertisers over the next six months, so that the magazine which has the highest rating has a significant advantage over its rival(s). Mr Ashford added that the Douglas wedding, for which OK! had secured exclusive rights, was the last important feature before the end of the ABC year.

4

Three matters need to be made clear at the outset of this judgment. The first is that this is not the trial of the action. The court is not concerned to decide whether, as the claimants contend, Hello! has acted unlawfully. If at the trial it is held that Hello! has acted unlawfully, it is likely that it will have to pay the claimants very substantial sums of money, whether as damages or as a consequence of any account they may be ordered to make in relation to all the profits it has received as a result of its unlawful acts. Since it decided to proceed with the publication of Issue 639 of its magazine after we discharged the injunction, and after it had had the opportunity of reading all the evidence which the claimants placed before the court, it could have no possible excuse for its behaviour if it were held that it has acted unlawfully.

5

We are not concerned with matters of this kind. Our sole concern is to decide whether in accordance with well established principles an injunction restraining this publication should be continued in force until trial, thereby in effect "killing" this weekly issue of Hello!.

6

Secondly, this judgment is given in the context of litigation conducted at great speed. Mr Maninder Gill, who is the third claimants' head of legal affairs, first heard at 7.30pm on the evening of Monday 20th November that Hello! were likely to publish the disputed photographs the following morning. Leading counsel obtained injunctive relief from Buckley J over the telephone later that evening. The hearing before Hunt J took place the following day, when three witness statements on behalf of the claimants (Martin Kramer, Maninder Gill and Martin Ellice) and two witness statements on behalf of the defendants (Sally Amanda Cartwright and Timothy Moore) were placed before the court. The defendants immediately appealed to a two-judge division of this court (which was unable to agree) and when we started to hear the appeal the following day we decided that it would be fair to allow both sides to adduce further evidence on the clear understanding that we realised that the other side had had no opportunity, or no sufficient opportunity, to rebut any of this new evidence if it had wished to do so. We therefore admitted four more witness statements on behalf of the claimants (Stanley Sydney Myerson, Paul Anderson, Paul Ashford and Martin Smith) and three more witness statements on behalf of the defendants (Sally Amanda Cartwright 2nd, Christopher Hutchings and Maria-José Doughty).

7

The third preliminary matter is that even if we had not decided to admit all this new evidence, we would have had to exercise our discretion afresh on the hearing of this appeal because we have virtually no idea what matters the judge took into account and what he did not take into account when he exercised his discretion to continue the injunction. After a long hearing we were told that he simply said that he had no doubt that these images were confidential and that the defendants were in breach of confidence, and probably contract and malicious falsehood as well, and that he would continue Buckley J's order. The defendants appealed against his order on nine separate grounds, all of which appear to me well founded. The essence of their complaint is set out in the first ground of appeal:

"(1) The learned Judge failed to give any or sufficient reasons in support of his decision to continue the injunction granted without notice by Mr Justice Buckley on Monday 20 November."

8

This court has said repeatedly in recent years that the giving of reasons forms an important part of the judicial function. See, in particular, Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381–2. Like the defendants, we do not know why the judge decided that the nine photographs of which the claimants make complaint were without doubt published in breach of confidence. We do not know why he concluded that the photographs contained information possessing the necessary quality of confidence. We do not know what he identified as the necessary elements of malicious falsehood or the tort of interference with contractual relations, or why he concluded that those elements would in each case probably be proved by the claimants at trial.

9

There is no indication that he weighed the injustice likely to be caused to the defendants in continuing the injunction against the injustice likely to be caused to the claimants if he refused to continue it. Nor did he say whether he gave any or any proper weight to the fact that the continuation of the injunction was to cause the defendants to be unable to distribute almost the entirety of one of its weekly issues. Because he failed in all these respects, this court, as I have said, has had to exercise its own discretion in deciding whether or not to continue the interim injunction granted by Buckley J. I wish to stress that a judge does not have to give long reasons. The error made by Hunt J was that for all practical purposes he did not give any reasons at all, with the result that neither an appellate court nor the parties are able to understand precisely why he exercised his discretion in the way he did.

10

I turn now to the evidence. It is common ground that Hello! is published in the London area on Tuesday of each week and in other parts of the country on Wednesdays. OK! follows in each respect three days later. While OK! complain that Hello! behaved improperly on the occasion which is at the centre of this appeal, Hello! adduced evidence which purported to show that this was merely a case of the pot calling the kettle black, and that OK! had been no stranger to similar spoiling tactics in the past. The evidence on these matters must be approached with care, prepared as it was on each side with great speed and not tested in cross-examination. None of it was before the judge. It ran along the following lines.

11

In September 1998 Hello! paid a very substantial sum for the right to publish an exclusive feature about the wedding of Gloria Hunniford, the television personality. Its agreement with Miss Hunniford contained a confidentiality clause which had the purpose of achieving full exclusive coverage for Hello!

12

On that occasion OK! published its Issue 128 a few days before Hello! published its wedding photographs. OK! magazine that week bore the banners "OK! ALWAYS FIRST FOR WEDDINGS" and "GLORIA HUNNIFORD'S EXCLUSIVE WEDDING DAY" on its cover, which also boasted "COMPLETE COVERAGE & BEAUTIFUL PICTURES INSIDE". Six pages of wedding photographs appeared on pages 42–47. Hello! complain that these pictures were obviously not authorised by Hello! or by the married couple, and that they must have been obtained in similar circumstances (ie surreptitiously) to those of which OK! make complaint in this action.

13

In its response OK! does not suggest that it did not know that Hello! had exclusive rights to the Hunniford wedding coverage. It contents itself with saying that there had been no international publicity identifying the possessor of the exclusive media rights in advance of the Hunniford wedding. There was no security operation equivalent to that conducted at the Douglas wedding. The guests at the Hunniford wedding were issued with disposable cameras and encouraged to take photographs by the bride and groom, who had agreed to pose for pictures on public ground in their wedding attire. OK! also says that it understands that the sums paid for the right of coverage for the Hunniford wedding were far smaller. It...

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