Ery v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] EWHC 2760 (QB) |
| Docket Number | Case No: HQ16X03591 |
| Court | Queen's Bench Division |
| Date | 04 November 2016 |
[2016] EWHC 2760 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ16X03591
David Sherborne and Julian Santos (instructed by Lee and Thompson) for the Claimant
Andrew Caldecott QC and Adam Wolanski (instructed by Reynolds Porter Chamberlain) for the Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is a redacted and abbreviated version of a judgment which I gave in private. The alterations from the private judgment have been made to preserve the anonymity of the Claimant.
This is an application for the continuation of an injunction granted by Dove J. as the Out of Hours Judge on 15 th October 2016. He granted the injunction until the hearing of the Claimant's application for its continuation. Simply to preserve the position until I was able to rule on the application, and without opposition from the Defendant, I continued the injunction on a temporary basis until further order.
The Claimant is a businessman.
The Defendant is the publisher of the Mail on Sunday, the Daily Mail and MailOnline amongst others.
The Claim Form seeks to restrain the Defendant from using, publishing, communicating or disclosing confidential or private information about the Claimant.
The Claimant's company (Company A) was in a business relationship with another company (Company B).
Earlier this year officers from a police force outside London, investigating allegations of financial crime, searched the premises of Companies A and B.
The Claimant was later interviewed by police under caution. It is the information that he was interviewed under caution and, more generally, that the police are investigating his suspected involvement into financial crime which the Claimant says is private and confidential information that the Defendant should be restrained from publishing.
Mr Wellington's witness statement (which is dated 18 th October 2016) says that the Mail on Sunday does not intend to publish the allegation that the Claimant has been interviewed under caution. Mr Wellington says that if that present intention changes, the Defendant would give the Claimant 24 hours advance notice before publishing anything about the interview. The Mail on Sunday does wish to publish an article referring to the police investigation of Company A, for possible financial crime. It would make clear that no person has yet been charged with any offence and no person employed by it had been arrested (as long, I assume, as that remains the position at the time the article is prepared for publication).
The Claimant's position is that a Court order is still necessary despite what Mr Wellington says as to the Mail on Sunday's intentions. Mr Sherborne, on his behalf argues (in brief summary):
i) When asked by me if the Defendant was prepared to give an undertaking not to publish any reference to the Claimant's interview under caution, Mr Caldecott QC, on the Defendant's behalf, declined to do so. Mr Sherborne argues that the Defendant's unwillingness to do so means that the Claimant's fear that such publication will take place remains justified. He refers me to the approach of Dingemans J. in Weller v Associated Newspapers Ltd [2014] EWHC 2127 (QB).
ii) In any event, 24 hours' notice of any change in that intention is inadequate.
iii) But, in any case, even if the Claimant's interview under caution is not mentioned, the Claimant fears that a story that is ostensibly about the investigation of Company A will be written in such a way as to convey the impression (explicitly or implicitly) that the Claimant as an individual is also under investigation. Mr Sherborne invites me to consider how past articles by the Defendant have emphasised the personal role of the Claimant in Company A. Mr Sherborne argues that, so far as the police are investigating the Claimant's involvement in financial crime, that is a matter in which he has a reasonable expectation of privacy. His rights under Article 8 of the European Convention on Human Rights ('ECHR') are therefore engaged. He accepts that the injunction would constitute an interference with the Defendant's rights under Article 10 of the ECHR, but in the present circumstances he submits the balance comes down firmly in favour of the Claimant. Consequently, I should find that the Claimant would be likely to succeed at trial and so an interim injunction would be compatible with s.12 of Human Rights Act 1998.
iv) The Claimant alleges that the fact that he is being investigated by the police is also confidential information and the publication of that information by the Defendant would be a breach of confidence. The Defendant will not say who its source was, but if it was someone in the police (contrary to the Defendant's denial that this was the case) or someone who worked for Company A, the disclosure to the Defendant would have been in breach of confidence. However, Mr Sherborne did not submit that the claim in confidence gave the Claimant any greater protection (on the present facts) than the claim based on intrusion on his reasonable expectation of privacy.
For the Defendant, Mr Caldecott (again in summary) submits:
i) The Defendant has made its intention clear. Moreover, in the course of the hearing, he accepted that publication of the fact that the Claimant had been interviewed under caution would engage the Claimant's rights under Article 8 and he would not submit (as matters presently stood) that the Defendant's Article 10 rights should prevail. The inevitable conclusion of these concessions was that, as matters presently stood, Article 8 would preclude publication of the fact of the interview under caution.
ii) The position of Associated Newspapers Ltd in the Weller litigation was different. It had there contested the Article 8 claim. In any event, while the Court of Appeal did not overturn the injunction, it reached this decision on the narrow basis that its grant was not outside the Judge's discretionary area of judgment even though his reasons for granting it were not 'compelling' – Weller v Associated Newspapers Ltd [2016] 1 WLR 1541 at [81] – [88]. In view of the Defendant's open position in the present case, the Claimant could not show sufficient grounds for his fear that the fact of the interview under caution might be published to justify the grant of an interim injunction.
iii) 24 hours' notice of any change in the Defendant's intention regarding non-publication of the fact of the interview under caution would be sufficient for the Claimant to invoke the assistance of the Court, if that was what he wished.
iv) There was a public interest in knowing that the police were investigating financial crime into the industry in which Company A trades and the Defendant should be able to report this. However, the Claimant's role in Company A was so prominent that a reference to the company was likely to be taken as, or to include, a reference to him personally. Such inferential reference was a common feature in libel litigation. The risk for the Defendant though, if the injunction as sought was granted, was that it might be held in contempt. Injunctions had to be drafted with precision. In a libel context, a publisher might try to avoid an inferential reference by expressly excluding the individual from the defamatory imputation. That was not possible in the present context. It would be untrue for the Defendant to say that the police investigation was into Company A and not the Claimant.
The facts in further detail
The Claimant has children. The eldest child attends a nursery and the Claimant is concerned that information about the police investigation of him by the Defendant (and other media who pick up the story) is bound to be repeated at her nursery and have a damaging effect on the child.
For various reasons put in private before the Court, the threatened publication was likely to have an adverse effect on the Claimant's health.
The raids by the police on the premises of Company B and Company A were reported locally. It appears to have involved a large number of police officers. A number of people were arrested in what was described as an 'ongoing financial investigation'.
According to Mr Wellington, thereafter a Mail on Sunday journalist, spoke to a legal representative of the Claimant who said that there were contentious issues between Companies A and B.
A further article then published in the local press said that the arrests had been on suspicion of financial crime and the investigation was supported by the National Crime Agency.
Thereafter, a third journalist with the Daily Mail, emailed the Claimant's public relations representative asking for the Claimant's response to the police investigation into Companies A and B, the police raid and arrests made, the steps the Claimant would be taking as a result given the relationship and whether the Claimant would be helping the police with their inquiry.
The Claimant's public relations representative provided an on the record response.
Thereafter, the Defendant published an article on MailOnline referring to the police investigation and quoting from the press statement provided by the Claimant's public relations representative.
Mr Wellington says that on the same day, a journalist working for the Defendant spoke again to a legal representative of the Claimant who spoke of the internal investigation being carried out by Company A. According to Mr Wellington, the Claimant's legal representative was adamant that the police investigation was into...
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