Murray v Big Pictures (UK) Ltd

JurisdictionEngland & Wales
JudgeSir Anthony Clarke MR:
Judgment Date07 May 2008
Neutral Citation[2008] EWCA Civ 446
Docket NumberCase No: A3/2007/2236
CourtCourt of Appeal (Civil Division)
Date07 May 2008
Between
David Murray (by His Litigation Friends Neil Murray And Joanne Murray)
Appellant/Claimant
and
Big Pictures (uk) Limited
Respondent /Defendant

[2008] EWCA Civ 446

[2007] EWHC 1908 (Ch)

Before:

Sir Anthony Clarke Mr

Lord Justice Laws and

Lord Justice Thomas

Case No: A3/2007/2236

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

THE HON. MR JUSTICE PATTEN

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Richard Spearman QC and Mr Godwin Busuttil (instructed by Messrs Schillings) for the Appellant

Mr Mark Warby QC and Mr Jonathan Barnes (instructed by Messrs Solomon Taylor & Shaw) for the Respondent

Hearing dates: 10 and 11 March 2008

Sir Anthony Clarke MR:

This is the judgment of the court.

Introduction

1

Dr Neil Murray and Mrs Joanne Murray are the parents of David Murray. Mrs Murray is the author of the Harry Potter books which, as everyone knows, she wrote under the name JK Rowling. David was born on 23 March 2003. On Monday 8 November 2004 Dr and Mrs Murray were out walking in an Edinburgh street some time after 9 o'clock in the morning. Dr Murray was pushing a buggy with David in it. The respondent ('BPL') took a colour photograph of the family group which was subsequently published in the Sunday Express magazine on 3 April 2005 ('the Photograph').

2

On 24 June 2005 proceedings were issued in David's name through his parents as his litigation friends against the publishers of the Photograph, Express Newspapers Plc as first defendant and against BPL as second defendant. The action against the first defendant was settled leaving BPL as the sole defendant. In the action David asserts an infringement of his right to respect for his privacy contrary to article 8 of the European Convention on Human Rights ('the Convention'). He also puts his claim under the Data Protection Act 1998 ('the DPA').

3

BPL applied for an order striking out the claim under CPR 3.4 or for summary judgment under CPR 24. The application was heard by Patten J ('the judge') on 20, 21 and 22 June 2007. By an order dated 7 August 2007 the judge struck out the claim and gave judgment for BPL. In reaching his conclusion he assumed that the facts alleged in the particulars of claim were true. This appeal is brought with the permission of the judge, who gave permission on the ground that the case raises an important point about the relationship between the decision of the House of Lords in Campbell v MGN [2004] UKHL 22, [2004] 2 AC 457 and that of the ECtHR in Von Hannover v Germany (2005) 40 EHRR 1.

The facts

4

We can for the most part take the facts from the judgment. However, on 4 December 2007, which was of course after the order of the judge but before the hearing of the appeal, BPL disclosed a CD ROM on which were stored copies of digital versions of the Photograph and five further photographs of David and his parents taken on the same day. As a result of that disclosure the appellant has produced draft amended particulars of claim and it has been agreed that we should consider the appeal on the footing that the facts alleged in that draft are true. It was also agreed that the court could take account of the contents of a witness statement by Dr Murray in which he described the events of the morning of 8 November.

5

David's parents have a daughter, Mackenzie, who was born on 23 January 2005 and with whom Mrs Murray was pregnant at the time the photographs, including the Photograph, were taken. Mrs Murray also has another daughter, Jessica, by a previous marriage, who was born on 27 July 1993. When the Photograph was taken the Murrays were walking from their flat to a local café. They were accompanied by a security officer, Ms de Kock. Shortly after they arrived at the café Ms de Kock noticed that they were being observed by a man in a car parked opposite. As they left the café some time later, Ms de Kock saw the man take a long lens camera from the boot of the car and apparently take some photographs. It is inferred on behalf of the appellant that the camera was used to take photographs of the family. Of the six photographs, the first two, which include the Photograph, were taken while they were on their way to the café, whereas the remaining four show them crossing the road and returning to the flat.

6

The Photograph shows Mrs Murray walking alongside the buggy and shows David's face in profile, the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. It was taken covertly by a photographer using a long range lens. Neither David, who was about 19 months old, nor his parents were aware that the photograph was being taken. His parents were not asked for their consent to any of the photographs being taken.

7

On 12 January 2005 the Daily Record and the Western Daily Press published copies of photographs which formed part of a series taken by BPL on 8 November 2004. As we understand it, the Western Daily Press published a copy of the Photograph. In any event the family's solicitors ('Schillings') wrote to BPL on 17 January complaining about the photographs, which they understood to be the property of BPL, in so far as they depicted David and asked for an undertaking not to publish or permit the publication of such photographs in the future. On 21 and 25 January BPL wrote offering certain undertakings. On 26 January Schillings wrote complaining that one of the photographers “camped outside our client's home” was from BPL. On the same day BPL replied denying the allegation but asserting that a named news agency, a named freelance photographer and two named newspapers did have photographers outside the house. On 27 January Schillings wrote with regard to the undertakings referred to in the communication of 21 January. They in effect accepted the undertakings but sought an undertaking from BPL to write a letter to certain newspapers and magazine companies. They also sought costs. On 1 March Schillings wrote again asking to see copies of the letter and asking for a response on costs. On 4 March BPL wrote saying that they were willing to write the letter but that they were not willing to pay costs.

8

That was how matters were left when, on 3 April, the Photograph appeared in the Sunday Express accompanied by the headline “My Secret” and the text of a quotation attributed to Mrs Murray in which she set out some thoughts on her approach to motherhood and family life. As the judge put it, the accuracy of the quotation was not disputed but the pleaded case was that it related to Jessica, was made several years earlier and was not provided for publication in that edition of the Sunday Express or in conjunction with the Photograph. It is plain that, as at the date of the publication, BPL was aware that the Murrays had not given consent to the publication of the Photograph. Moreover, although the judge does not expressly so conclude, it is at least arguable (and we would have thought plain) that it was made clear in the correspondence, in so far as the letters were written on behalf of David, that the Murrays positively objected to the publication of any photographs of David.

9

On 11 April Schillings wrote to BPL on behalf of the Murrays, including David, referring to the earlier correspondence and setting out what they said were the undertakings given by BPL as follows:

1

“We undertake not to further publish, license or sell the images in question”; (letter dated 21 January 2005).

2

“We cannot undertake to return the images to you. We can however undertake to delete the images from our database and our website;” (letter dated 25 January 2005).

3

“We are willing to contact all publishing companies to inform them that the pictures in question are no longer available for publication”; “(21 January 2005)”; and then “We are more than happy to carry out our undertakings with regards to informing our clients that those pictures are no longer available for publication; (letter 4 March 2005).”

Schillings added that BPL was in breach of some at least of the undertakings and sought further performance of them, an apology and costs.

10

BPL replied on 13 April saying that it had no intention of further publishing, licensing or selling “the images of JK Rowling in question”. It added that it had contacted its clients who might have the pictures in their own library and instructed them not to publish them and that the pictures remained unavailable on their website. It further said that it was unfortunate that pictures of JK Rowling were published in the Sunday Express magazine on 3 April but BPL was doing what it could to see that that did not re-occur. Finally it offered an apology and a contribution of £400 towards costs, given its understanding that payments had been received from the publications that ran the pictures.

11

On 23 June Schillings sent a letter before action on behalf of David's parents as his litigation friends, saying among other things that they would be seeking delivery up of all the offending photographs and not merely those published and that the action would be brought in the interests of preventing future taking and publication of photographs “of our client”. In our view that letter made it clear that the action was to be brought solely by David. So it was that this action was commenced on 24 June on David's behalf.

The action

12

It is in our opinion of some importance that the action was brought by David's parents only on behalf of David and not on their own behalf. Mr Spearman submits that that fact was not sufficiently recognised by the judge, whom he submits treated the action as...

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