Douglas v Hello! (No 8)

JurisdictionEngland & Wales
JudgeMr Justice Lindsay
Judgment Date07 November 2003
Neutral Citation[2003] EWHC 2629 (Ch)
Docket NumberCase No: HCO100644
CourtChancery Division
Date07 November 2003
Between:
(1) Michael Douglas
(2) Catherine Zeta-jones
(3) Northern & Shell Plc
Claimants
and
(1) Hello! Ltd.
(2) Hola, S.A.
(3) Eduardo Sanchez Junco
(4) The Marquesa De Varela
(5) Neneta Overseas Ltd.
(6) Philip Ramey
Defendants

[2003] EWHC 2629 (Ch)

Before:

The Honourable Mr Justice Lindsay

Case No: HCO100644

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr A. Wilson Q.C. and Mr D. Sherborne (instructed by Addleshaw Goddard) for the Claimants

Mr J. Price Q.C. and Mr G. Fernando (instructed by Charles Russell until 27 October 2003 then M Law) for the 1 st to 3 rd Defendants

Mr Justice Lindsay

Mr Justice Lindsay :

A. Introduction and the events

1

The hearings in this action were, at the wish of some parties, split as between questions relating to liability and, should the need arise, those relating to quantum of damages. In the course of a long judgment which I delivered in April 2003 I held that the first 3 defendants were liable to all 3 claimants under the law as to confidence. A further hearing as to quantum thus became necessary to determine what sums, if any, all or any of the first 3 defendants ("Hello!") are to be required to pay either the first 2 claimants, Michael Douglas and his wife Catherine Zeta-Jones, or the 3 rd claimant, Northern & Shell plc (the publisher of OK! magazine and for convenience referred to merely as "OK!") or both. That quantum hearing spread itself over 12 days and this is the judgment in respect of those 12 days.

2

Although the hearing concluded at the end of July, some detailed questions later arose as to the computation of loss suffered by OK. Those questions were dealt with in sequential but informal written submissions from both sides, the last of which was dated 31 st October.

3

I am not in this judgment concerned with the position of the 4 th and 5 th Defendants, the Marquesa de Varela and Neneta Overseas Ltd They were found not to be liable to the claimants in the April judgment and have taken no part in this quantum hearing. Nor, either, has the 6 th defendant, Philip Ramey, the paparazzo photographer, who is being proceeded against separately in default proceedings.

4

I shall not, in this judgment, set out the narrative background to the case, which is to be found in my April judgment to which this judgment is an adjunct. However, there are some facts which require to be repeated for the understanding of the chronology and its consequences as to quantum. They are these.

5

The well-known film stars Mr Michael Douglas and Miss Catherine Zeta-Jones were to marry at the Plaza Hotel, New York on Saturday 18 th November 2000 in the early evening. Just over a week earlier, on 10 th November 2000, they had made a contract with OK! giving that magazine exclusive rights to the coverage of the wedding. Extensive arrangements were made to ensure that only those truly invited would gain entry to the wedding but, despite that, an unauthorised photographer, Rupert Thorpe, found a way in. He was working, it seems, in some loose association with the 6 th Defendant, Philip Ramey. His photographs – some 15 or so – were offered by Mr Ramey to Hello!, who bought them for £125,000 on Sunday 19 th November. On the morning of Monday 20 th November OK! learned that the unauthorised photographs were on the market. It wished itself to buy them so as to take them off the market but found that they had been sold to Hello!. Mr and Mrs Douglas were told of the existence of the unauthorised photographs and that it was believed (as was the case) that Hello! had purchased them for publication in its magazine. They were distressed at the news. The Claimants decided to seek an injunction against publication of the pictures by Hello! and on the evening of Monday 20 th November they obtained one ex parte from Buckley J. over the following day. On 21 st November, the Tuesday, Hunt J extended the injunction over trial or earlier further order at an inter partes hearing. Hello! determined to appeal and moved before a two-man Court of Appeal, Ward and Walker LJJ. on the afternoon of the 21 st. At the close of argument that Court indicated that its members could not agree and arrangements were made for a hearing before a three-man Court of Appeal to begin the following day, Wednesday the 22 nd.

6

In the meantime Hello!'s issue No. 639 featuring 6 of the unauthorised photographs and with a cover which included one of them and which in large print bore the words "From New York: the full story – Catherine and Michael's wedding" had been printed and flown by specially chartered aircraft from Spain, where it was printed, to England. The cover said it had "Exclusive Photographs". Hello! intended to put it on sale to the public on Tuesday 21 st in London and on Wednesday 22 nd in the rest of the country, that being its usual pattern for sales of Hello!, which, like its great rival, OK!, was and is a weekly magazine. The injunction granted disturbed those intentions; Hello! took steps to suspend distribution and only some 15,750 out of a print run of 755,900 – a larger run than usual reflecting that Hello! expected the Douglas Wedding issue to capture unusually large sales – were distributed. The rest were embargoed to await the outcome of the litigation.

7

By now, either by way of the distribution of the 15,750 copies of Hello! or by reason of the hearings before Hunt J. and the two-man Court of Appeal, the Press had learned of the contest between OK! and Hello! and of the nature of the unauthorised photographs.

8

The hearing of the three-man Court of Appeal began before Brooke, Sedley and Keene LJJ. on Wednesday 22 nd November 2000. Argument ran into the next day, Thursday 23 rd, and as it then ended the Court indicated that the appeal would be allowed, that the injunction was lifted and that reasoned judgments would be given later. Hello! decided to publish; it informed distributors that the embargo was lifted and its issue No. 639 went on full sale to the public on Friday 24 th November.

9

In paragraph 12 of my April judgment I said, of OK!, that it normally came out on Thursdays in London and on Fridays throughout the rest of the U.K No party sought to correct that and, for the purposes of the April judgment, the normal weekly dates of publication were of only marginal relevance. They are, though, of more significance for my present purposes and, despite the inconsistency, which I was at first minded to avoid, on the evidence I hold that OK! is usually published on Fridays in London and on Saturdays in the rest of the country. In the ordinary way its issue 241 would therefore have been on U.K.-wide sale on Saturday 25 th November. During the liability hearing there had been some evidence of, but no dispute as to, OK!'s plans and in paragraphs 87 and 88 of the April Judgment I held (referring to the then-understood normal dates for publication) as follows:

"87. Until the news arrived of Hello!'s acquisition of unauthorised pictures OK! had planned not to put wedding pictures in Issue 241, due to go on general sale on Friday the 24 th November, but to spread Douglas wedding items over to later issues, number 242 for publication on the 30 th November (London) and 1 st December (the rest of the United Kingdom) and number 243 a week later. Now, simultaneously, two decisions were made; one was to bring forward some wedding coverage into Issue 241. That meant that the Douglases would have to select which photographs they approved for publication very quickly.

88. The Douglases set about that task. It had been thought that it would be a leisurely, unhurried and pleasant process; now it had to take place in priority to everything else and in some haste. They spent hours and hours sitting on the floor going through photographs in a mad rush, said Miss Zeta-Jones. Eventually the agreed photographs were taken by Mr Burry to London. Expenses were incurred by reason of the need for expedition, expenses that would not have been incurred otherwise."

10

Now, though, Hello!, by Mr James Price Q.C. and Mr Fernando, argues for and directs evidence in support of a conclusion that OK!'s original intention was never to have 2 Douglas wedding issues but only 1. Mr Alastair Wilson Q.C., now appearing with Mr Sherborne for the Claimants, has not argued that my earlier April conclusion bars further examination of this issue, which I shall need to revert to later. In the event, OK!'s issue 241, of some 186 pages and containing some Douglas wedding pictures, went on public sale in London on Friday 24 th, the same day as Hello!'s issue 639, and on Saturday in the rest of the country. OK!'s No. 241 included on its cover a photograph not only of the bride and groom but also of their baby, of Michael Douglas' father, Kirk Douglas, and of his wife and the bride's parents, Mr and Mrs Jones. The cover added "The first real wedding pictures and exclusive interview"; "OK! World Exclusive" and "In friendship and co-operation with Catherine, Michael and their families". OK!'s second Douglas wedding issue, No. 242, of some 2pages, had a close-up of bride and groom on the cover and offered, it said, "All new pictures –the complete private wedding album" and "Official – and only in OK!". Together issues 241 and 242 completed OK!'s own coverage of the wedding but OK! had very widely syndicated the authorised photographs and some or all appeared in many publications all over the world.

11

On Friday 24 th November The Sun newspaper printed 5 of the 6 unauthorised photographs which Hello! had put into its issue 639 and also reproduced Hello!'s cover in very small size. On the same day the Daily Mail reproduced Hello!'s cover to its issue 639 and on Saturday 25 th November reproduced 4 of the 6...

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