McKennitt v Ash

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeTHE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady
Judgment Date21 December 2005
Neutral Citation[2005] EWHC 3003 (QB)
Docket NumberCase No: HC05C02569
Date21 December 2005

[2005] EWHC 3003 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before:

The Hon. Mr Justice Eady

Case No: HC05C02569

Between:
Loreena Mckennitt
Hampstead Productions Ltd
Quinlan Road Ltd
Claimants
and
Niema Ash
Purple Inc Press Ltd
Defendants

Desmond Browne QC and David Sherborne (instructed by Carter-Ruck) for the Claimant

The first Defendant appeared in person and represented the second Defendant

Hearing dates: 21st to 29th November 2005

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

INDEX

1

Paragraphs 1 -5

2

Ms McKennitt's attitude to privacy

Paragraphs 6 -8

3

The remedies sought

Paragraphs 9 – 10

4

The five categories of "confidential information"

Paragraphs 11 -12

5

The specific passages complained of

Paragraphs 13 —39

6

Ms Ash takes her stand against censorship

Paragraph 40

7

The extent of publication

Paragraphs 41 -45

8

A need to balance Convention rights

Paragraphs 46 – 49

9

The increasing scope for protecting private life

Paragraphs 50 – 53

10

The modern approach to public interest

Paragraphs 54 – 62

11

How to decide whether Article 8 is engaged

Paragraphs 63 – 67

12

The nature and content of Ms Ash's book

Paragraphs 68 – 76

13

Why should Ms Ash not be able to tell her own story?

Paragraph 77

14

The relevance of inaccuracy

Paragraph 78

15

The public domain argument

Paragraphs 79 – 81 16. The relevance of "Travels with my Daughter"

Paragraphs 82 – 86

17

The lack of opportunity for Ms McKennitt to comment before publication

Paragraphs 87 – 93

18

The public interest argument

Paragraphs 94 – 105

19

The property dispute and the Chancery proceedings

Paragraphs 106 – 127

20

The relevance of the contractual provisions

Paragraphs 128 – 130

21

My conclusions on the five areas of complaint

Paragraphs 131 – 158

22

The need for an injunction

Paragraphs 159 —161

23

Damages

Paragraph 162

The Hon. Mr Justice Eady
1

The parties

1

The First Claimant in these proceedings is Loreena McKennitt, a Canadian citizen, who has for many years run a business around her composition and performance of folk and folk-related music. She has sold millions of recordings and has from time to time toured various parts of the world playing live concerts.

2

The Second and Third Claimants are, respectively, Hampstead Productions Ltd and Quinlan Road Ltd. These are companies incorporated under the laws of Ontario which are owned and controlled by Ms McKennitt. The copyright in the musical and literary works comprised in her songs, as well as that in the sound recordings of her performances, is owned by various corporate entities.

3

The present proceedings are based upon alleged breaches of privacy, and/or of obligations of confidence, said to arise either by implication of law or, in some instances, express contractual provisions. The hearing took place in private but the contents of this judgment have been so drafted as to avoid intruding, so far as possible, on any of the more intimate detail which the Claimants wished to protect. I took the view that the judgment should therefore be publicly accessible in its entirety.

4

The particular focus of the Claimants' concern is the publication of a book earlier this year with the title "Travels with Loreena McKennitt: My life as a Friend". This was written by the First Defendant, Niema Ash, who was formerly a friend of Ms McKennitt. She and her long term partner, Mr Tim Fowkes, had often socialised with Ms McKennitt and entertained her while she was in England. Moreover, they had sometimes worked closely with her in connection with her business here and abroad and accompanied her on a contractual basis on one foreign tour in particular. This followed the release of an album in 1997 called "The Book of Secrets". It was to promote this album primarily that a European and American tour took place in 1998, in connection with which Ms Ash agreed to carry out the services of a merchandise supervisor and she was retained for that purpose by the Second Claimant company.

5

The Second Defendant in these proceedings is a company called Purple Inc Press Ltd, which was incorporated in this jurisdiction in April 2005 for the purpose of publishing the book in question. The sole director is Ms Ash.

2

Ms McKennitt's attitude to her privacy

6

Ms McKennitt has vehemently asserted in these proceedings that she has always sought to keep matters connected with her personal and business life private and confidential. It was confirmed in evidence before me that, whenever a press conference or interview takes place, it is impressed upon those concerned that enquiries about her personal life are very much off limits. Indeed, it seems to have been accepted by Ms Ash (at least on page 313 of her book) that she protected her reputation and her privacy "with the iron safeguard of a chastity belt".

7

In so far as there have been exceptions to her primary rule of protecting her privacy, Ms McKennitt has emphasised that she has occasionally released some information which "she felt comfortable with", and in respect of which she was able to control the boundaries herself. This has apparently occurred mainly in connection with a charity which she founded and promoted in connection with water safety and the prevention of boating accidents. This followed a tragedy in 1998 when her fiancé (together with his brother and a friend) died in a drowning accident in Canada. She has accepted that, for these purposes, it is sometimes necessary to provide personal detail in order to bring home to people the risks inherent in sailing and the need to take precautions. The personal impact upon her highlights the dangers, she believes, in a way that could not be achieved by general and impersonal safety warnings. When, in this connection, Ms McKennitt has spoken about the death of her fiancé, she has done so on a controlled and limited basis with which, again, she "feels comfortable".

8

Ms McKennitt, therefore, places at the centre of her present claim the proposition that her private life and indeed her business affairs are entitled to protection on the basis of a duty of confidence, and are not in the public domain by reason either of her fame in itself or of the limited revelations to which I have referred.

3

The remedies sought

9

Against that background, the Claimants seek a declaration that by publishing and disclosing certain identified information contained in her book Ms Ash and her company have acted in breach of confidence and/or in breach of the terms of the confidentiality agreement. It is disputed that either Defendant is bound by any such duty. Alternatively, it is said that there has been no breach because the information contained in the book is so banal, inconsequential or anodyne as not have about it the "quality of confidence".

10

An injunction is sought also to restrain the Defendants from selling, disclosing, publishing, disseminating, promoting or communicating certain specified information, which has been identified and subsequently narrowed down in a schedule of items from the book. It is not sought to restrain publication of the book in its entirety, but obviously the effect of the orders sought would be that it could only be published following substantial revision and amendment. Although there is also a claim for damages, the Claimants recognise that they are unlikely to recover much from the Defendants, in view of their financial circumstances, but a claim is made nevertheless.

4

The five categories of "confidential information"

11

At this stage I should identify the particular matters in respect of which the Claimants seek restraint. As narrowed and defined, they fall into the following categories:

i) Ms McKennitt's personal and sexual relationships.

ii) Her personal feelings and, in particular, in relation to her deceased fiancé and the circumstances of his death.

iii) Matters relating to her health and diet.

iv) Matters relating to her emotional vulnerability.

v) The detail of an unhappy dispute between Ms McKennitt, on the one hand, and Ms Ash and Mr Fowkes on the other, concerning monies advanced to them by Ms McKennitt to assist in the purchase of a property in 1997 and the subsequent litigation in the Chancery Division (which was settled on the basis of a Tomlin order without ever coming to a public hearing).

12

It is this dispute over the acquisition of Ms Ash's home which is said primarily to motivate the revelations in the book. It is submitted on Ms McKennitt's behalf that this motivation can be inferred from the disproportionate amount of space given to it in the book (which is unlikely to be of much interest to outsiders) and the tendentious terms in which it is described. It also emerges, so it is said, from certain answers given in the course of evidence in this case.

5

The specific passages complained of

13

Be that as it may, I should now turn to the specific allegations in respect of which protection is now claimed. The complaints are numbered in accordance with the original schedule.

14

First, there are short passages in chapter 2 of the book on pages 6 and 7 which hint quite strongly at a relationship with a friend of Ms Ash at about the first time she met her in the early 1980s. The Defendants' response, drafted by her former counsel Mr Elliott, is that the information is trivial and anodyne and not such as to attract a duty of confidence.

15

Secondly, in chapter 5 there is reference to Ms McKennitt having been taken ill while at Heathrow Airport and Ms Ash having made arrangements for her to be transported to hospital and given treatment. There is no objection to recording the mere fact of her...

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