Lord Browne of Madingley v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 03 April 2007 |
| Neutral Citation | [2007] EWCA Civ 295 |
| Docket Number | Case No: A2/2007/0402 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2007 |
[2007] EWCA Civ 295
Sir Anthony Clarke MR
Lord Justice Buxton and
Lord Justice Keene
Case No: A2/2007/0402
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Eady
James Price QC and Matthew Nicklin (instructed by Schillings) for the Claimant
Victoria Sharp QC, Catrin Evans and Aidan Eardley (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates: 5 and 6 March
PUBLIC JUDGMENT
Approved Judgment
This is the judgment of the court to which all members of the court have contributed.
This judgment
As is explained much more fully below, in these proceedings Lord Browne of Madingley seeks to enjoin on grounds of breach of confidence the publication by the Mail on Sunday of various items of information or allegations. The proceedings are still at an interlocutory stage, and Eady J, from whom the appeal is brought, was therefore constrained, as we are, by the rule in section 12(3) of the Human Rights Act 1998. We have concluded that Eady J was right in holding that the publication of some, but not all, of the matters alleged by the newspaper should not be enjoined. That means that in preparing our judgments explaining our decision we are constrained by various considerations.
First, the general rule is that hearings must be in public unless there is good reason to take another course: Scott v Scott [1913] AC 417, and CPR 39.2(2). In this case, in order to protect the subject-matter of the appeal until determination we exercised the power given by CPR 39.2(3)(a) to sit in private, as had the trial judge. And under the same rubric we have prepared, solely for the information of the parties and not for any further use, a private judgment that sets out in full the facts of the case and our conclusions on them.
Second, however, we now have to recognise the imperative of public justice and the need to explain the outcome of the appeal, while continuing to accord proper protection to the appellant until trial. In that connexion it is clear that matter that the court has ruled should not be published until trial should not be set out in this judgment. However, on the other hand, granted that the judgment relates to some matters concerning the parties, there is no good reason why they should continue to be referred to anonymously, a course to be avoided unless justice requires it: R v Legal Aid Board ex p Kaim Todner [1999] QB 966.
The most difficult question arises in respect of the handling of the matters that we have concluded are publishable by the newspaper in advance of trial. That question has been addressed by the House of Lords in Cream Holdings v Banerjee [2005] 1 AC 263. At [5] of the leading speech Lord Nicholls of Birkenhead indicated the nature of case:
In January 2001 Cream dismissed Mrs Banerjee. When she left she took with her copies of documents she claims show illegal and improper activity by the Cream group. She passed these to the 'Echo' with additional information…..On 13 and 14 June 2002 the 'Echo' published articles about alleged corruption involving one director of the Cream group and a council official. On 18 June 2002 the Cream group sought injunctive relief to restrain publication by the newspaper of any further confidential information given it by Ms Banerjee.
The House discharged that injunction in respect of information already supplied by Ms Banerjee to the newspaper, but not otherwise. That was because the allegations about Cream raised matters of serious public interest, and Cream was not likely to succeed at trial in rebutting those public interest arguments in support of publication.
The House then considered what it should say in its judgment about that conclusion. Lord Nicholls said this at his [26]:
I recognise that without reference to the content of the confidential information this conclusion is necessarily enigmatic to those who have not read the private judgments of the courts below. But if I were to elaborate I would at once destroy the confidentiality the Cream group are seeking to preserve. Even if the House discharges the restraint order made by the judge, it would not be right for your Lordships to make public the information in question. The contents of your Lordships' speeches should not pre-empt the 'Echo's' publication, if that is what the newspaper decides now to do. Nor should these speeches, by themselves placing this information in the public domain, undermine any remedy in damages the Cream group may ultimately be found to have against the 'Echo' or Ms Banerjee in respect of matters the Echo may decide to publish.
The present judgment respects that guidance. In doing so, we note that it does not follow that the principle of open justice has to be trespassed on to the extent that a judgment is not merely enigmatic but incomprehensible. As we have seen, in Cream the House set out the general nature or category of the information sought to be enjoined, and the broad reason why that injunction was not in law available. We have taken that course in explaining our decision in this judgment, by referring in broad terms to the kind of information that the newspaper is entitled to publish, but not in any way going on to the degree of detail that may appear in any published report.
We have invited the comments of the parties on a draft of the present judgment and have taken note of what they have said. That step was without prejudice to the determination of what should appear in the judgment being a matter for the court.
Introduction
On 6 January 2007 Underhill J, on the application of the claimant, Lord Browne of Madingley, granted an injunction in wide terms restraining the defendant ('the newspaper') from publishing any details of the relationship between the claimant and Mr Jeff Chevalier ('JC') and any confidential or private information that JC had obtained in the course of that relationship, including 15 specific items of information. On 12 January, which was the revised return date, Eady J continued the injunction, pending the filing of further evidence. A full inter partes hearing took place on 23 January and on 9 February Eady J ('the judge') made the order against which the claimant seeks permission to appeal. By that order he maintained the injunction in part but refused to do so in important respects. He refused the claimant's application for permission to appeal. The claimant renewed the application on paper and I adjourned it to be heard on notice to the newspaper, with appeal to follow if permission was granted. Eady J said that the case gives rise to relatively novel and intricate questions. We agree and for that reason we grant permission to appeal.
Background facts
We can take the relevant background facts primarily from the judgment. The claimant is the Group Chief Executive of BP, which is of course a major international company based in London, has many thousands of employees and is large even in global terms. He and JC were partners, living together in a homosexual relationship, from about the end of 2002 until early 2006. While the relationship lasted JC adopted the claimant's lifestyle and was provided with food, travel, clothes and accommodation at a fairly luxurious level. The claimant also gave JC substantial sums of money either in cash or by cheque. The judge said that the relationship seemed to have become fairly widely known (although no mention was made of it in the media). JC accompanied the claimant at various social events and on trips, including events connected with the claimant's business activities. JC is a Canadian whose visa was due to run out early on in the relationship. So the claimant took various steps to enable him to remain in the country, including paying for a university course from 2003 so that he would acquire student status. The claimant also helped to set up a company for him to trade in mobile phone ring-tones. The claimant and another executive from BP became directors. The company secretary of this new company was also one of the claimant's colleagues from BP.
When the relationship ended, JC found himself in financial difficulties and having to adjust to a drastically reduced lifestyle. JC said that the claimant provided him with funds towards a twelve month lease on a flat in Toronto and the cost of furnishings. According to JC, at a meeting in June 2006, the claimant also agreed:
“… that if needed, [he] would assist in the first year of me transitioning from living in multi-million pound homes around the world, flying in private jets, five star hotels, £2,000 suits, and so on to a less than modest life in Canada”.
As the judge put it in paragraph 8 of his judgment, JC's plight was compounded by the fact that he had been out of the employment market for several years. He had some experience in IT work but had left that career path during the period when he was effectively being “kept” by the claimant.
There were various communications from JC towards the end of 2006 seeking further financial assistance from the claimant. On 24 December 2006 JC sent the claimant an email which included the following:
“… I have nothing left to lose … I am facing hunger and homelessness after 4 years of sharing your lifestyle … the least I am asking for is some assistance … please respond … I do not want to embarrass you in any way but I am being cornered by your...
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