Lord Browne of Madingley v Associated Newspapers Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeTHE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady
Judgment Date09 February 2007
Neutral Citation[2007] EWHC 202 (QB)
Docket NumberCase No: HQ07X0078
Date09 February 2007

[2007] EWHC 202 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before

The Hon. Mr Justice Eady

Case No: HQ07X0078

Between
Lord Browne of Madingley
Claimant
and
Associated Newspapers Ltd
Defendant

Richard Spearman QC (instructed by Schillings) for the Claimant

Victoria Sharp QC and Aidan Eardley (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing date: 23 January 2007

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.

THE HON. MR JUSTICE EADY The Hon. Mr Justice Eady

Introduction

1

The Claimant in these proceedings is attempting to restrain publication by Associated Newspapers Ltd of allegations (most of which are said to be false or misleading) on the ground that they are matters in respect of which he has a “reasonable expectation of privacy” and/or because they have been communicated to journalists in breach of a duty of confidence arising from an intimate personal relationship. The claim is not founded upon defamation, although the initial complaint did make reference to the allegations being defamatory as well as being in breach of confidence.

2

The case gives rise to relatively novel and intricate questions. These include the extent to which it is possible (there being no relevant contract) to resort to “privacy” rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms in order to prevent revelations which are primarily about one's conduct in business matters. There is also a need to consider the inter-relationship between the rule in Bonnard v Perryman [1891] 2 Ch 269 (as recently confirmed in Greene v Associated Newspapers Ltd [2005] QB 972) and the increasing recognition that the courts can, in appropriate circumstances, prevent publication of false allegations on matters in respect of which there would be a reasonable expectation of privacy: see e.g. McKennitt v Ash [2006] EWCA Civ 1714. Here some of the more significant allegations (unlike most of those in McKennitt) would at least arguably give rise to a claim in defamation and, for the most part, it would be the newspaper's wish, if necessary, to prove them to be true. This judgment which is intended to be available publicly is a slightly redacted and amended version of that handed down in private on 9 February 2007. That is because it contained some information of a private character which there is no need to reveal.

3

The Claimant has a relatively high public profile as the Group Chief Executive of BP, which has many thousands of employees and is large even in global terms.

4

During 2002 the Claimant and a Mr Jeff Chevalier became partners. The partner relationship seems to have lasted until early 2006. During that time Mr Chevalier adopted the Claimant's lifestyle and was provided by him with food, travel, clothes and accommodation at a fairly luxurious level. In addition, the Claimant also made substantial payments to him over the period in cash or by cheque. Their relationship seems to have become fairly widely known (although no mention was made of it in the media). It is significant that Mr Chevalier accompanied the Claimant at various social events and on trips, including events connected with the Claimant's business activities.

5

Mr Chevalier is a Canadian whose visa was due to run out early on in the relationship and 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. He 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.

6

When the relationship ended, Mr Chevalier found himself in financial difficulties and also having to adjust to a drastically reduced lifestyle. He said that the Claimant provided him with funds towards a twelve month lease on a flat in Toronto and to help with furnishings. At a meeting in June, according to Mr Chevalier, 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”.

7

His 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.

8

There were various communications from Mr Chevalier towards the end of 2006 seeking further financial assistance from the Claimant (referring to his claim that he had agreed to give him help in adjusting to a very different way of life). I was shown e-mails, including one of 24 December 2006, in which Mr Chevalier said that he was facing hunger and homelessness after four years of sharing the Claimant's lifestyle. He asked for “some assistance” backed by what could be interpreted (although Mr Chevalier denies it) as a thinly veiled threat:

“I do not want to embarrass you in any way but I am becoming concerned by your lack of response to my myriad attempts at communication”.

The need for an injunction

9

It then appears that Mr Chevalier, shortly afterwards, decided to go to the press and “spill the beans” in various ways. The Claimant's company press officer contacted him while he was on holiday in the Caribbean because the office had received a communication from a journalist from the Mail on Sunday. The first contact was made by telephone on 5 January 2007. It became clear that it was intended to publish an article based on information from Mr Chevalier falling into various categories. No draft of the article has been supplied, but certain specific allegations were raised for possible comment. An application was therefore made to Underhill J on the evening of Saturday, 6 January, and an injunction was granted addressing certain specific areas which it was then thought were likely to the subject of coverage. The application was made on the telephone by Mr Spearman QC, on the Claimant's behalf, with Miss Sharp QC participating on behalf of the Defendant. Both also appeared before me.

10

On 12 January (the original return date) I renewed the injunction and, with some reluctance, granted an adjournment of the substantive hearing so that the Defendant could have more time to put in evidence. On 23 January the matter came back before me. At that stage the Defendant indicated that the allegations it wished to publish were more limited in scope than those which had been discussed before Underhill J.

11

It has long been recognised that intimate personal relationships, including those of a homosexual nature, can in themselves give rise to obligations of confidence (and correspondingly to a “reasonable expectation of privacy”) in respect of information gained in the course of them: see e.g. Argyll v Argyll [1967] 1 Ch 302; Stephens v Avery [1988] 1 Ch 449. I shall need to consider the various categories of information in issue here and determine a number of questions:

i) Whether a prima facie duty of confidence would arise in respect of each of them by virtue of the fact of the relationship;

ii) Whether the information is such that there would, in any event, arise a “reasonable expectation of privacy”, so as to engage the Claimant's Article 8 rights;

iii) If so, whether in any event the information was to a significant extent in the public domain already;

iv) Whether there is a public interest in any of the information, sufficient to justify publication – even if the law would otherwise afford the Claimant protection;

v) If it is defamatory, whether the Bonnard v Perryman principle should come into play so as to preclude injunctive relief in respect of any particular allegation;

vi) Whether, in other respects, the Defendant's Article 10 rights should be given priority over any right of privacy or confidence to which the Claimant might otherwise be prima facie entitled;

vii) Whether, in the light of s.12 of the Human Rights Act 1998, the Claimant is “likely” in respect of any or all of the categories to succeed in obtaining a permanent injunction at trial.

It is obvious that these questions overlap in significant respects.

The relevance of the Claimant's lie to the court

12

There is another issue which has to be addressed, and to which I shall return later; that is to say, what should be the consequences of the fact that the Claimant promulgated a lie which was relied upon by his counsel, unwittingly, before Underhill J and before me. Miss Sharp QC (citing Armstrong v Sheppard & Short Ltd [1959] 2 QB 384, 397) suggests that he should be deprived of any equitable remedy because he has not come with clean hands; alternatively, to adopt more modern terminology, because he has deliberately sought to mislead the court and thereby committed a criminal contempt of court or, perhaps, attempted to pervert the course of justice.

13

The particular lie to which the Claimant eventually admitted, just before the 23 January hearing, was to the effect that he had originally met Mr Chevalier by chance, while exercising in Battersea Park. It may be thought that the distinction between that and the true position is of little materiality to the primary issues in the case. On the other hand, what matters is that the Claimant clearly thought it important at that time and quite deliberately, and casually, chose to lie to the court about it.

14

It is true that he has now apologised, albeit after the true position was revealed in paragraph 23 of Mr Chevalier's witness statement of...

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