McKennitt v Ash

Background

1. I set out no more than is necessary to understand the issues in the appeal. Much of what follows is taken largely verbatim from the judgment of Eady J, which was described by the constitution of this court that granted permission to appeal as detailed and careful. The case before Eady J was heard in private. The claim seeks to prevent the further publication of certain material, so this was a case where a public hearing would have defeated the object of that hearing, one of the cases for privacy that is provided by CPR 39.2(3) (a) . The judge enjoined further publication of a significant part of the work complained of. He dealt with the problem of publicity in the course of litigation by (if I may respectfully say so, very skilfully) , delivering an open judgment that described the objectionable material in general terms, but appended a confidential appendix in which the actual enjoined material was fully described.

2. Before us, an application was made to hear in private those parts of the appeal that required reference to the material in the appendix. We granted that application, for the same reason as the judge had sat in private. However, we were able without undermining the judge's order to hear the major part of the appeal, including all of the legal argument, in public. That was achieved by the care exercised by Mr Price and by Mr Browne QC in presenting their arguments, and we are grateful to them for their skill and co-operation in that respect.

3. The First Claimant 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. The Second and Third Claimants (who play no active role in the proceedings) are 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.

4. The proceedings are based upon alleged breaches of privacy or of obligations of confidence, said to arise either by implication of law or, in some instances, from express contractual provisions. The case concerns the publication in 2005 of a book "Travels with Loreena McKennitt: My life as a Friend" ["the book"]. 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. That tour followed the release of an album in 1997 called "The Book of Secrets". It was to promote this album 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 (which equally plays no active part in them) 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.

6. The nub of Ms McKennitt's claim is that a substantial part of the book reveals personal and private detail about her which she is entitled to keep private. That claim is brought against the background that Ms McKennitt is unusual amongst world-wide stars in the entertainment business, in that she very carefully guards her personal privacy. The judge rightly saw that to be a matter of great importance, such as to require him to make findings about it at the very start of his judgment. In §§ 6–8 of the judgment he said:

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.

The course of the appeal

7. There is an extant appeal to this court in relation to the judge's costs order, which this judgment does not address. Otherwise, the judge refused permission to appeal against his substantive order, and that refusal was repeated by a single Lord Justice on paper. However, on an ex parte application by Mr Price (who had by then taken over the matter, Ms Ash having represented herself at, though not up to, the trial) permission to appeal was granted, the Lord Justice who delivered the judgment on that occasion observing that

this is an important and developing area of law where an appeal on these facts may help to clarify and define some of the relevant principles even if it does not alter the outcome

Possibly emboldened by that indication, the argument in this appeal has ranged widely, and certainly beyond the narrow limits of the facts of the case. While necessarily addressing some considerable part of that argument, I will need later in the judgment to bring us down to ground to the actual issues in this case. And also, alarmed by what appeared to be on foot, a representative range of media organisations, including Times Newspapers Ltd, the Press Association and the BBC, applied to intervene. We suggested that that matter could be managed not by a formal intervention but by our taking note, and asking the parties to take note, of the detailed submissions in the application to intervene, and the authorities there set out. The media parties (as I will refer to them) were good enough to agree to that course. We also received a letter from the Publishers Association, which we indicated to the parties that we had read. We took those steps without prejudice to the law or practice on intervention by commercial as opposed to public or public interest parties, which law and practice remains in a state of some uncertainty.

A taxonomy of the law of privacy and confidence

8. It will be necessary to refer to the underlying law at various stages of the argument, and it would be tedious to repeat such reference more than is necessary. Since the content of that law is in some respects a matter of controversy, I set out what I understand the present state of that law to be. I start with some straightforward matters, before going on to issues of more controversy:

i) There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office [2004] 2 AC 406 [28]-[35].

ii) Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be "shoehorned": Douglas v Hello! (No3) [2006] QB 125 [53].

iii) That feeling of discomfort arises from the action for breach of...