Michael Douglas and Another v Hello! Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindsay |
| Judgment Date | 11 April 2003 |
| Neutral Citation | [2003] EWHC 786 (Ch) |
| Docket Number | Case No: HCO100644 |
| Court | Chancery Division |
| Date | 11 April 2003 |
[2003] EWHC 786 (Ch)
The Honourable Mr Justice Lindsay
Case No: HCO100644
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
RoyalCourts of Justice
Strand, London, WC2A 2LL
Mr M. Tugendhat Q.C. and Mr D. Sherborne 1st to 3rd Defendants
Miss H.T.M. Mulcahy (Solicitor Advocate of Messrs Reed Smith) for the 4th and 5th Defendants (instructed by Messrs Theodore Goddard) for the Claimants
Mr J. Price Q.C. and Mr G. Fernando (instructed by Messrs Charles Russell) for the 1 st to 3 rd Defendants
Miss H.T.M. Mulcahy (Solicitor Advocate of Messrs Reed Smith) for the 4 th and 5 th Defendants
Hearing dates : 3 rd–5 th February 2003, 7 th February 2003, 10 th-14 th February 2003, 17 th-21 st February 2003, 24 th-26 th February 2003, 3 rd March -7 th March 2003, 10 th March -12 th March 2003
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.
Mr. Justice Lindsay
Mr Justice Lindsay
An outline
The well-known film stars Mr Michael Douglas and Miss Zeta-Jones married at the Plaza Hotel in New York on the 18 th November 2000. It was, said one witness, the event of the year. Extensive security arrangements had therefore been made, intended to ensure that access to the ceremony and reception would be denied to all but the family members and friends who had been invited and the attendant staff, who had been put on terms to keep the wedding confidential. The bride and groom hired their own selected photographers and it was made plain that other photography was not to be permitted. In making such arrangements the bride and groom were doing as they were bound by contract to do as they had sold exclusive photographic rights of the event to OK! magazine, although they had retained control over the selection of such pictures, taken by their own photographers, as they should choose to release to OK!. The security arrangements thus were intended to serve the three-fold purposes of confining the event to family and friends, of ensuring that only authorised photographs were taken and of preserving the exclusivity of the photographic rights for which OK! had paid £1m.
The wedding passed off as a great success, enjoyed by all present but, unknown to any as the events unfolded, it soon thereafter transpired that one intruder, a photographer, had eluded security and had surreptitiously taken relatively poor photographs which were then bought for publication in OK!'s rival magazine, Hello!. The Douglases and OK! , then, as now, represented by Mr Tugendhat Q.C. and Mr Sherborne, quickly moved in England for an injunction to restrain publication and they obtained that relief. However, the Court of Appeal acceded to Hello!'s arguments and lifted the injunction, leaving the Claimants to claim in damages.
In the result, Hello! published the unauthorised photographs on the same day as that on which OK!, having had to bring its arrangements forward, published parts of the full authorised portfolio of photographs covering the event, approved by the Douglases, for which it had paid.
As the litigation developed other parties were added as defendants and other causes of action beyond the initial claims were added. The parties to the action now, as Claimants, are, as they were from the outset, Mr Douglas and Miss Zeta-Jones (now Mrs Douglas) as 1 st and 2 nd Claimants and the publishers of OK!, Northern & Shell plc, as 3 rd Claimant. It will be convenient to refer to the 3 rd Claimant simply as "OK!".
On the Defendants' side, Hello! Limited, the 1 st Defendant, is a subsidiary of the 2 nd Defendant, Hola SA; the 2 nd Defendant publishes Hello! magazine and the 1 st Defendant distributes it in the United Kingdom. The 3 rd defendant is Eduardo Sanchez Junco, a director of and controlling shareholder in Hola SA and Editor-in-Chief of Hello! magazine. I will call the first three Defendants "the Hello! Defendants". They appear by Mr James Price Q.C. and Mr Fernando. The 4 th defendant, the Marquesa de Varela, is a person who has frequently supplied features for use in Hello! magazine and in Hola, its Spanish sister publication. The 5 th defendant is a company owned by the Marquesa de Varela. They appear by Miss Mulcahy. The 6 th defendant, Philip Ramey, is a paparazzo photographer who also has a photographic agency in California. He was not the photographer of the unauthorised photographs but it was he who sold them to the Hello! Defendants. He has not been represented and has taken no part before me. The Claimants propose to move against him later and do not seek relief against him at this stage.
A split trial was ordered so at this stage I am concerned only with whether there is liability in one or more of the first five defendants to one or more of the Claimants. If I find there to be such a liability I shall not be concerned with attempting to ascribe some monetary figure to that liability or even with determining how that should be done.
The procedural history
The procedural history is more complicated than one might expect as, quite apart from collateral skirmishes, there have been, as I shall relate below, two interlocutory hearings at first instance followed by one abortive appeal to a two man Court of Appeal and then a successful appeal to a three man Court of Appeal. Then, a good deal later and only shortly before the trial began, there was an unsuccessful application to the Vice-Chancellor for the striking out of the defences of the Hello! defendants, an application on which Senor Sanchez Junco and three witnesses for the Hello! Defendants were cross-examined.
Paparazzi
As I shall explain in the course of the narrative, the photographer who took the unauthorised photographs, a Mr Rupert Thorpe, was in some form of loose association, the details of which are not known, not only with the 6 th defendant, Mr Ramey, but also with two others, Frank Griffin and Randy Bauer. All carry on business as paparazzi, a term especially used and which I shall use to include those photographers whose business it is to take photographs of events and celebrities where access to photographers generally to the event is forbidden or limited and where the consent of the celebrities to be photographed is known or likely to be refused and is thus dispensed with by the paparazzi concerned. In varying degrees, as may become necessary for them to obtain the photographs they seek, they turn to deception, to intrusion and, occasionally, to unlawful behaviour. Mr Ramey, in particular, has a reputation of being able to get in where others were unlikely to be able to.
Intrusion, in context
These proceedings have already attracted a good deal of public and press attention such that there are two points that I should mention as to be borne in mind. The first is the extent to which celebrities of the status of Mr Douglas and Miss Zeta-Jones, whilst, of course, welcoming much of the publicity that surrounds them, can also find their privacy or ordinary life severely curtailed. Thus the undisputed evidence before me includes, for example, that Miss Zeta-Jones has been frightened by a photographer jumping out of a doorway at night to photograph her, that on another occasion she swerved her car into a lamp-post trying to escape from a paparazzo and that the Press got hold of and published the fact of her pregnancy even before she had had all the medical tests she had wanted to take and before even she had told her close family of it, including her mother. When she was in hospital after the birth of her son, journalists tricked their way into the hospital by pretending to be members of her family. When she was wheeled from the delivery room back to her room in the hospital she was covered by a sheet to avoid being photographed by the photographers who had tricked their way in. In one remarkable incident when her son was only one week old he, with his nanny, was in a car driven in California by Miss Zeta-Jones. Photographers for a British tabloid newspaper deliberately ran into the car. Under Californian law Miss Zeta-Jones had to get out of the car to exchange details. Her evidence continues, of the photographers:-
"They immediately jumped out of their car and took photographs of me looking furious at the side of the road. They then published them in an article about me being consumed by road rage."
Hardly surprisingly, her evidence continued:-
"This incident made me very angry."
It is easy to see, against such a background, how celebrities may become especially defensive, though I add that this case is nothing to do with photography of either Mr Douglas or Miss Zeta-Jones in public.
The other point I make is that whilst the Claimants' case is now chiefly for money it was not always so and it was not by their choice that it became so. What all Claimants first moved for was an injunction to restrain publication. The case only became chiefly for monetary compensation after the three-man Court of Appeal had ruled that the existing injunction was to be undone and that the Claimants would have to be satisfied with claims in damages.
The Magazines
Hola has been published in Spain for over 50 years and the three versions, "Hola" in Spanish, "Hello!" in English and "Oh La" in French are sold in almost 60 countries. Hello! has been circulated weekly in the United Kingdom for some 12 years and is bought by an average of some 456,000 people per week, leading, it is said, to a readership of some 2.2 million people per week. It is sold through about 55,000 outlets in the...
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