Peter Abbey v (1) Andrew Gilligan (2) Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 20 November 2012 |
| Neutral Citation | [2012] EWHC 3217 (QB) |
| Docket Number | Case No: HQ11X04220 |
| Court | Queen's Bench Division |
| Date | 20 November 2012 |
[2012] EWHC 3217 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11X04220
William Bennett & Chloe Strong (instructed by PSB Law LLP) for the Claimant
Desmond Browne QC & Adam Speker (instructed by RPC ) for the Defendants
Hearing dates: 30, 31 October 1 November 2012
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.
On 10 November 2011 the Claimant (Mr Abbey) issued a claim form claiming damages for breach of confidence, or misuse of private information, in relation to the obtaining and publication by the Defendants of a number of E-mails ("the E-mails"). Extracts from the E-mails had been published in The Evening Standard ("ES") over four years earlier, in the issue dated 14 September 2007 ("the Article"). The text of the Article had been posted on its website until August 2011. The E-mails were sent by and to Mr Abbey. Save for one (from which no part or information was published) they contain information relating to the affairs of Complete Leisure Group Ltd ("CLG").
The background to this litigation is the announcement on 6 July 2005 that London would be the venue for the Olympic Games in 2012. Lord (Sebastian) Coe KBE had headed the bid. He is, as is well known, a winner of Olympic Gold medals, a former Member of Parliament and a very well known figure in public life.
On 17 March 2005 Sebastian Coe Ltd ("SCL") had been incorporated (under a different name), that is a few months before 6 July 2005. SCL's principle activity was the provision of speakers, product endorsements and consultancy advice on sports related activities. The directors, so far as relevant to this action, were Lord Coe and Mr A Dix FCA.
On 22 July 2005 CLG was incorporated (under a different name) as a public company. In the Report of the Directors for the year ended 31 December 2006 it is stated that the principle activities of CLG and its subsidiary, SCL, was "the exploitation of the intellectual property and image rights relating to Lord Coe and the provision of consultancy advice on sports related activities".
On 3 October 2005 Lord Coe was appointed chairman of the London Organising Committee of the Olympic Games ("LOCOG"). The role of LOCOG was to organise and stage the 2012 Olympic Games and Paralympic Games. LOCOG was a private limited company, of which the only two shareholders were the Secretary of State for Culture, Media and Sport and the Mayor of London.
In November 2005 SCL commenced trading.
On 8 November 2005 CLG (at that time named Complete Sports Company Ltd) issued a document stating that it proposed to raise up to £1m by way of subscription by investors for ordinary shares at a price of £1 per share. The document before the court is a draft. It was obtained by the makers of the Programme (referred to below) from an investor. The document stated that the company had reached agreement in principle to acquire SCL, and that it had two other subsidiaries (neither of which is relevant to the present litigation). As at 8 November 2005 Lord Coe, Mr Abbey and Mr Dix each held one third of the 1.2m issued share capital. The document stated that CLG expected to issue to Lord Coe 2.8m shares as consideration for the sale of SCL to it, and, assuming this was done, that the subscription shares were expected to represent approximately 20% of the issued share capital of the company.
As at 2 August 2007 there were 53,158,000 shares in CLG issued to 36 shareholders. There was one original director who resigned on 19 October, having played no part in the trading of the company. The Directors and shareholders of CLG who are named in this judgment are as follows:
| Appointed director | Resigned as director in 2007 | Shareholding ('000) 2 August 2007 | |
| Lord Coe | 19 October 2005 | 32,000 | |
| Mr A Dix FCA | 19 October 2005 | 21 March | 4,000 |
| Mr T Howland | 19 October 2005 | 1 June | 50 |
| Sir Robin Miller | 1 March 2006 | 7 December | |
| Mr HP Tillman | 5 June 2007 | 2,650 | |
| Mr AM McKenzie | 16 August 2007 | ||
| Berkeley Consultants Ltd | 3,000 | ||
| Mr & Mrs Crawhall | 150 | ||
| Mr L Davis | 300 | ||
| Mr N Greenstone | 250 |
The increase in the share capital to this amount followed the issue of a further document dated 29 August 2006. By this document CLG invited subscription for up to 3,333,334 shares at a price of £0.15 per share to raise £500,000.10. It stated that "SCL has a projected turnover of £850,000 for the year ended December 2006". The document also stated that it had been retained as a consultant to Anschutz Entertainment Group ("AEG"), which operated the O2 (formerly the Dome) in London. In this document it is stated that "The directors … believe that the Chairman, Lord Coe, and the management team are establishing a well-connected international company". The document before the court is again a draft from an investor. It was sent to Mr Gilligan by Channel 4 on 12 September.
Mr Abbey describes himself in the Particulars of Claim as "a shareholder in and consultant to" CLG. In fact, Berkeley Consultants Ltd ("BCL") held the shares in which he was interested. In his witness statement he states that he has for many years acted as a consultant to companies. He helps to set up companies, to find investors, to float companies on the market, and generally to assist companies with their business affairs as and when required. Such assistance includes the introduction of lawyers, accountants, brokers and public relations advisers.
He introduced to CLG Halliwells, solicitors, and Adler Shine LLP, chartered accountants and business advisers. Mr Rakesh Patel is a partner in Adler Shine, and had known Mr Abbey for a long time. Mr Abbey also introduced investors, as related below.
Mr Abbey describes in his witness statement how he assisted in the setting up of SCL and CLG. Their registered and business offices were both stated to be at One Great Cumberland Place, London W1. That is the address from which he conducted his business. At one point in his witness statement he stated that he "had been heavily involved raising investments for" CLG. At another point he stated that he acted as consultant for CLG as follows:
"I advised generally and helped to secure investments for the company. Berkeley Consultants Limited also held shares in CLG. I cannot be sure about the dates but I recall holding shares for the same period as I was consultant. Both were from around October 2005 until sometime between July 2006 and July 2007. I had no other role at CLG, I was neither a director nor an employee".
As noted above, this part of Mr Abbey's statement contains inaccuracies. He was never a shareholder in CLG, otherwise than through his interest in BCL. And BCL was shown as a shareholder as at 2 August 2007. Mr Abbey does not disclose when that shareholding was disposed of.
The central figure in this litigation is Lord Coe. It is because of his position in public life that the ES published the Article. The Article is headed "Email from Coe investors: we want our money back". And it is illustrated by a large photograph of Lord Coe.
But neither he nor CLG is a party to the claim. Nor have they been represented. In an e-mail of 29 October 2012 at 16:00, sent to him through the publishers of his recently published autobiography, solicitors for the Defendants stated that the court might enquire what the position of Lord Coe is in relation to this litigation, and asked what Lord Coe would like them to tell the court. At 18:32 they received a reply from his personal assistant, Ms Susie Black, as follows:
"… Peter Abbey is no longer associated with Lord Coe or CLG and has not been for some time. Seb has had no involvement in the privacy claims being pursued by Peter Abbey and no information of relevance to this and he has nothing to add to the comments made by LOCOG at the time, as quoted in the article, concerning the separation between CLG and LOGOG business".
It follows that nothing in this judgement should be taken as a finding by the court which is adverse to Lord Coe or CLG. The court has to decide lawsuits on the evidence adduced by the parties. The evidence has therefore been adduced by Mr Abbey and the Defendants, and not by Lord Coe or CLG.
There is now no dispute that the E-mails were obtained by the Defendants from another journalist, Mr Howker. Mr Howker is a freelance journalist. In 2007 he had worked as Assistant Producer of a programme entitled "The Olympic Cash Machine" which was commissioned by Channel Four Television as part of its series "Dispatches" ("the Programme"). It was broadcast four days before the Article, that is on 10 September 2007. Mr Howker had obtained them from a source whom he and the Defendants have declined to identify (as is their right). He obtained the E-mails after the time at which the Programme was "locked", that is to say, at a time when it was too late to alter the Programme before it was broadcast. So there was no mention of the E-mails in the Programme.
THE PROGRAMME
The Programme was introduced by Kate Hoey, MP and former Sports Minister, and the main speaker was Antony Barnett. The transcript includes the following (with numbering added):
(1) "Kate Hoey: It is very important that people involved in any aspect of the Olympics makes sure that what they do is totally transparent and that the public generally know when they themselves by virtue of other undertakings that they are...
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