Nihal Mohammed Kamal Brake v Geoffrey William Guy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Asplin,Lord Justice Lewison |
| Judgment Date | 02 March 2022 |
| Neutral Citation | [2022] EWCA Civ 235 |
| Docket Number | Case No: CA-2021-000586 and 000587 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 235
Lord Justice Lewison
Lady Justice Asplin
and
Lord Justice Baker
Case No: CA-2021-000586 and 000587
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
HH Judge Matthews
BL-2019-BRS-000028
Royal Courts of Justice
Strand, London, WC2A 2LL
Heather Rogers QC and Jonathan Price (instructed by Seddons Law LLP) for the Claimants
Andrew Sutcliffe QC and William Day (instructed by Stewarts Law) for the Defendants
Hearing dates: 2 and 3 February 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Wednesday 2 March 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
This is an appeal against an order dismissing a claim by Nihal and Andrew Brake against Dr Geoffrey Guy and two of his companies, Chedington Court Estate Ltd and Axnoller Events Ltd (“AEL”), sometimes referred to below as “the Guy Parties”, for a final injunction and damages for misuse of private information and breach of confidence. The information said to be private was contained in emails sent and received by the first claimant, Mrs Brake, via an email account, enquiries@axnoller.co.uk (“the enquiries account”), which was set up and operated by AEL in circumstances described below. The judge held that the claimants had no reasonable expectation of privacy and no right of confidentiality in respect of those emails. The claimants argue that his decision was wrong in law and/or on the facts.
Core legal principles
Before summarising the facts, I shall set out the basic legal principles relevant to this appeal. In addition to the authorities cited here, the parties referred to a number of other reported cases, some of which are considered later in this judgment.
A fortnight after the hearing of this appeal, the Supreme Court handed down its judgment in Bloomberg LP v ZXC [2022] UKSC 5. The central issue in that case, as summarised in paragraph 1 of the judgment, was whether a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. The facts of the case were very different from those arising in this appeal and, although the judgment, which has attracted considerable comment, sets out the law relating to privacy in some detail, it does not herald any development in the legal principles applied by the judge in this case. Nevertheless, at our invitation, counsel helpfully prepared short supplemental written submissions on the Bloomberg decision, some of which have been included in the following summary.
The modern law now recognises “two distinct causes of action, protecting two different interests: privacy and secret (‘confidential’) information” (per Lord Nicholls of Birkenhead in OBG Ltd v Allan [2007] UKHL 21 at [255]). The equitable right in the confidentiality of information was recognised by the Court of Chancery in the nineteenth century ( Prince Albert v Strange (1849) 2 De.G & Sm.652). In contrast, the common law tort of misuse of private information is a modern creation, having been developed since the incorporation of the ECHR into our law.
The tort was identified by the House of Lords in Campbell v MGN Ltd [2004] UKHL 22. At [20] – [21] Lord Nicholls of Birkenhead observed:
“20. …. Article 8(1) [of ECHR] recognises the need to respect private and family life. Article 8(2) recognises there are occasions when intrusion into private and family life may be justified. One of these is where the intrusion is necessary for the protection of the rights and freedoms of others. Article 10(1) recognises the importance of freedom of expression. But article 10(2), like article 8(2), recognises there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life.
21. Accordingly, in deciding what was the ambit of an individual's ‘private life’ in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”
The two elements of the tort are therefore, first, whether there is a “reasonable expectation of privacy”, that is to say whether the information is protected by article 8, and, secondly, whether any interference with the right was justified.
As to the first element, Lord Hope in Campbell at [99] said:
“The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.”
In Murray v Express Newspapers PLC [2008] EWCA Civ 44, [2009] Ch 481 at [36], this Court observed:
“the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.”
These so-called “ Murray” factors have been applied in subsequent cases and endorsed by the majority in the Supreme Court in In re JR28 [2015] UKSC 42, [2016] AC 1131 and now in Bloomberg. In the latter case, the Court observed at [51] that the Murray factors were “not exhaustive” and added at [144]:
“it is important to recognise that not all of them will be relevant to every conceivable situation and that the examination of the factors must be open textured without being given any pre-ordained weight.”
As a general rule, or “legitimate starting point”, certain types of private information will normally be regarded as giving rise to a reasonable expectation of privacy (including information about a person's health, private finances and personal communications and correspondence), whereas other types will not (including involvement in criminal activity): see Gatley on Libel and Slander (12 th ed) at paragraph 22.5, cited in Bloomberg at [52] to [53]. But this is subject to important qualifications expressed in Bloomberg in these terms:
“67. First, the general rule or legitimate starting point is not a legal rule or legal presumption, let alone an irrebuttable presumption. The determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry.
68. Second, the general rule or legitimate starting point does not invariably lead to a finding that there was objectively a reasonable expectation of privacy in the information….
69. Third, the general rule or legitimate starting point does not obviate the need for the claimant to set out and to prove the circumstances establishing that there was objectively a reasonable expectation of privacy ….”
As for the second element in the tort, the question is as summarised by Buxton LJ in McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 at [11]:
“in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter inquiry is commonly referred to as the balancing exercise ….”
In carrying out that exercise, the approach is as summarised by Lord Mance in PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 108 at [20]:
“(i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see e.g. In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, para 17, per Lord Steyn….”
The elements of a claim for breach of confidence were summarised by Megarry J in Coco v AN Clark (Engineers) Ltd [1968] FSR 415 at p419:
“three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, MR in [ Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203] on page 215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
In Imerman v Tchenguiz [2010] EWCA Civ 908, [2011] Fam 116, the claimant husband shared an office with his wife's brother, the defendant. When the marriage broke down, the defendant, fearing the husband might conceal assets from the wife, accessed his computer and copied information and documents. The husband was granted an injunction restraining the defendant from disclosing the information to third parties, including the wife and her solicitors. In...
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