Murray v Big Pictures (UK) Ltd

JurisdictionEngland & Wales
JudgeMR JUSTICE PATTEN,Mr Justice Patten
Judgment Date07 August 2007
Neutral Citation[2007] EWHC 1908 (Ch)
Docket NumberCase No: IHC 168/07
CourtChancery Division
Date07 August 2007

[2007] EWHC 1908 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Mr Justice Patten

Case No: IHC 168/07

HC05C01669

Between
David Murray (by His Litigation Friends Neil Murray and Joanne Murray)
Claimant
and
(1) Express Newspapers Plc
(2) Big Pictures (Uk) Limited
Defendant

Mr Richard Spearman Q.C and Mr Godwin Busuttil (instructed by Schillings) for the Claimant

Mr Mark Warby Q.C and Mr Jonathan Barnes (instructed by Solomon Taylor & Shaw) for the Second Defendant

Hearing dates: 20,21 and 22 June 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.

MR JUSTICE PATTEN Mr Justice Patten

Introduction

1

The Claimant is the infant son of his litigation friends, Dr Neil Murray and Mrs Joanne Murray (who is better known as J.K Rowling, the author of the Harry Potter series of books). He was born on 23 March 2003. His parents also have a daughter, Mackenzie, who was born on 23 January 2005 and Mrs Murray has a daughter, Jessica, by a previous marriage who was born on 27 July 1993.

2

The Second Defendant, Big Pictures (UK) Limited (“BPL”) carries on the business of a photographic agency and licences photographs it has taken or acquired from members of the public for use both in the UK and internationally. The images can be ordered by telephone or from an online catalogue which it operates.

3

On 7 November 2004 a colour photograph was taken by BPL of the Claimant and his parents in a public street in Edinburgh. It shows him being pushed along in a buggy by his father with his mother walking alongside. At the time the photograph was taken she was pregnant with her daughter Mackenzie. The photograph shows the Claimant's face in profile, the clothes he is 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. The Claimant and his parents were unaware that the photograph was being taken and did not give their consent.

4

On 3 April 2005 the photograph appeared in the Sunday Express magazine published by the First Defendant accompanied by the headline “My Secret” and the text of a quotation attributed to the Claimant's mother in which she sets out some thoughts on her approach to motherhood and family life. The accuracy of the quotation is not disputed but the pleaded case is 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.

5

On 24 June 2005 the Claimant issued proceedings against the Defendants seeking an injunction to restrain further publication of the photograph or any other or similar photograph of him taken without his consent and for damages or an account of profits for breach of confidence, the infringement of his right to privacy and the misuse of private information resulting from the taking, recording, holding and publication of the photograph. There is also an alternative claim for relief under the Data Protection Act 1998.

6

The First Defendant has compromised the claim against it and the action continues only against BPL. Despite attempts to settle it, the claim has continued and I think it is fair to say that it is seen by the Claimant's parents as something of a test case designed to establish the right of persons in the public eye (such as the Claimant's mother) to protection from intrusion into parts of their private or family life even when they consist of activities conducted in a public place.

7

The case is unusual in that the Claimant himself is a child who was less than two years' old when the photograph was taken and is not alleged to have suffered any individual distress from the taking of it. It is obvious that he is not in any sense a public figure and that he was only photographed because of the identity of his mother. The issue for the Court in these proceedings and most of the argument on this application is centred on the degree of protection which someone who is well known or of public interest is entitled to in respect of their private family life. The reality of the case is that the Claimant's parents seek through their son to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities wherever conducted.

The application

8

The pleadings in the action are now closed and orders were made at a CMC in March for disclosure and the exchange of witness statements. However, on 7 March 2007 BPL issued an application seeking summary judgment in the action or alternatively an order striking out the claim under CPR Part 3.4 on the ground that the statement of case discloses no reasonable grounds for bringing the claim. Master Moncaster gave directions for the application on 28 March 2007. For BPL to succeed on its strike out application it has to show that the facts as pleaded do not disclose any legally recognised claim against it and for that reason that the Claimant's case has no real prospect of success. The application for summary judgment under CPR Pt 24 raises essentially the same issue.

9

There are, of course, obvious disadvantages in seeking to resolve proceedings of this kind short of a trial. The matters relied upon by the Claimant in his statement of case as founding his claim to privacy include factual assertions which are in issue. Similarly, BPL has raised various defences denying its responsibility for the publication of the photograph in the Sunday Express and in the alternative seeking to justify the taking of the photograph and its subsequent publication as a legitimate piece of journalism necessary for the maintenance of a well informed and interesting press.

10

Issues such as responsibility for publication can only be resolved at the trial. Similarly, the Court is being invited to form a view about the Claimant's prospects of success in the action based on what are currently assumed facts about the way in which his parents have sought to protect their children and their family life from the publicity which has attended his mother as an author. It may be that at a trial of the action facts will emerge which give a different picture of the position of the Claimant and his family or which in any event exculpate BPL. But Mr Warby Q.C on behalf of BPL contends that even if the trial establishes all the facts and other matters relied upon by the Claimant in his statement of case (so that the case can be put at its highest) there has been no interference with his rights to privacy or any abuse of confidence and no breach of duty under the Data Protection Act.

11

Mr Spearman Q.C on behalf of the Claimant was resistant to this attempt to resolve the issues in the action at this stage but did not press his opposition to the point of submitting that I should reject the application out of hand simply on procedural grounds. Both sides have submitted detailed skeleton arguments on the law and I believe that I am as well placed as the trial judge will be to decide whether the Claimant has on the authorities as they now stand, a reasonable prospect of securing the relief he seeks assuming that the facts as pleaded are made out. BPL's case (at least on privacy and breach of confidence) is essentially that the English courts have refused to recognise the right to an individual not to be photographed in a public place absent some other special circumstance such as harassment, distress caused to a child, or the disclosure through the photograph of some private or confidential information notwithstanding that the picture was taken in a public place. Absent special circumstances of this kind there is, they say, no reasonable expectation of privacy or if it exists nothing which effectively outweighs the rights of BPL or the press to freedom of expression. But in terms of the authorities, the issue is whether and to what extent the application of the principles set out by the House of Lords in Campbell v MGN Limited [2004] 2 AC 457 need to be re-considered or amended in the light of the more recent Strasbourg jurisprudence and in particular the decisions of the ECHR in Von Hannover v Germany [2004] EMLR 21 and Sciacca v Italy (2006) 43 EHRR 20.

12

One argument which sometimes surfaces in relation to the trial of issues of law on an interlocutory basis is that the judgment should be deferred until after a full trial because of the difficulty of applying the principles of a developing part of law to a set of assumed facts. In the case of an application for summary judgment under CPR Part 24 the existence of unresolved factual issues may in itself be an answer to the application. But in this case it is difficult to see how oral evidence would assist the Court to decide whether the taking of the photograph was or was not a breach of the Claimant's rights if it did no more than to confirm the facts pleaded in the Particulars of Claim. On the more limited basis on which this application is made I would not be assisted by such evidence. The only purpose of a trial would be to enable BPL to substantiate its own pleaded case. In these circumstances, the Court has to apply the law as it sees it to the facts on which the Claimant relies. There is nothing to suggest that the principles to be applied will change materially between now and a trial and BPL is, I think, entitled to test the Claimant's case as a matter of law on the basis of how things now stand. In the recent case of HRH The Prince of Wales v Associated Newspapers Ltd [2007]3 WLR 222 the Court of Appeal felt able to determine the Prince's claim to confidentiality in his journals under CPR Part 24 by applying the law to largely uncontested facts. Although the facts in this case...

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