Steve Mcclaren v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LINDBLOM |
| Judgment Date | 05 September 2012 |
| Neutral Citation | [2012] EWHC 2466 (QB) |
| Court | Queen's Bench Division |
| Date | 05 September 2012 |
[2012] EWHC 2466 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Hugh Tomlinson QC (instructed by Schillings) for the Claimant
Richard Spearman QC (instructed by Simons Muirhead & Burton) for the Defendant
Judgment Approved by the court
Hearing date: 18 August 2012
On the evening of Saturday, 18 August 2012 I heard an urgent application made on behalf of the claimant for an interim non-disclosure order to restrain the publication by the defendant of private information relating to what was described as a "sexual encounter" between the claimant and a third party, to whom I shall refer as SA. The application was made on notice to the defendant, which intended to publish an exclusive about the claimant and SA the following morning in the Sunday edition of one of its newspapers, "The Sun". The hearing was conducted on the telephone. The parties had agreed that it should take place in private (under CPR rule 39.2(3)(a), (c) and (g)). In the circumstances I saw no alternative to that course. This, however, is a public judgment (in accordance with paragraph 45 of the Master of the Rolls' "Practice Guidance: Interim Non-Disclosure Orders", issued in July 2011, and Article 6 of the European Convention on Human Rights and Fundamental Freedoms). Both parties were represented by leading counsel — the claimant by Mr Hugh Tomlinson QC, the defendant by Mr Richard Spearman QC. At the beginning of the hearing the claimant's solicitors undertook to produce a full note of the proceedings (to comply with Practice Direction 25A, paragraph 9.2(2)). This they duly did. Having heard counsel's submissions, I dismissed the application. I now give my reasons for doing so.
The basic facts of the case can be shortly stated.
The claimant is married. He and his wife have three children, the oldest of whom is 24, the others 20 and 15. He is a professional football manager, now managing FC Twente, a club in the Dutch football league. He used to be the manager of England's international team.
The encounter about which the defendant wanted to publish its story happened on Monday, 13 August 2012, when the claimant and SA were alone together in her flat in Manchester. The claimant did not deny his relationship with SA. According to her, they had met in June 2012 in the Lowry Hotel in Manchester. Their relationship had then developed on the telephone and in text messages. She had told the defendant that they had met several times in the course of the following weeks. Although her version of events was not admitted by the claimant, he did not dispute that he had gone with her to her flat on 13 August. A journalist had taken a photograph of them walking along the street on their way there. The defendant had the photograph and was going to print it.
On the morning of Saturday, 18 August a journalist from "The Sun" had told FC Twente, who in turn had told the claimant, that the defendant proposed to run its story the next day. The claimant's solicitors promptly sought an undertaking from the defendant that it would not publish. The defendant declined to give that undertaking. The application for injunctive relief was then made.
Exactly how the story had come into the hands of the defendant was not clear. The claimant believed that SA had given or sold her account of their affair to the defendant, and Mr Spearman confirmed that this was so. Whatever part SA had played in exposing her relationship with the claimant, it was plain that she did not resist the publication of the defendant's article about it. Indeed, Mr Spearman said she wanted the story of her relationship with the claimant to come out.
About six years ago the claimant had another extra-marital relationship. This was revealed when an article about it was published in "The Sun". At the time the claimant was in the running for the England manager's job. On that occasion, it seems, he did not attempt to prevent publication by seeking an injunction. Mr Spearman told me the claimant had deliberately put that affair into the public domain, selling his statement through the publicity agent, Max Clifford, for £12,500. On 29 April 2006 "The Sun" had carried an exclusive story about his affair with a secretary, which he said had taken place during a brief separation from his wife. The article had ended with him saying that this had been a lapse, and that he wanted to draw a line under it and concentrate on his family and his job as manager of Middlesbrough Football Club. He had said it ought not to affect his credentials for the post of England's manager. Mr Spearman also told me that since then the claimant had twice spoken publicly about his family. In an interview with "The Guardian" in May 2010 he had said they had allowed him to take his present job in Holland. And in November 2011 "The Independent" had reported him saying that his children were resilient to his working abroad.
The relevant legal principles governing applications such as this are well-established. Counsel reminded me of the two-stage test referred to in McKennitt v Ash [2008] QB 73. The first stage is to consider whether an applicant's rights under Article 8 of the Human Rights Convention are engaged, in that he had a reasonable expectation of privacy. The second stage involves a balancing exercise between the right to respect for private and family life under Article 8 and the right to freedom of expression under Article 10. As was emphasized in Re S (A Child) [2005] 1 AC 593, neither article takes precedence over the other. Where the values under them are in conflict, the court has to focus intensely on the comparative importance of the specific rights being claimed in the individual case. It must take account of the claimed justification for interfering with or restricting each right. And to each of the two rights the test of proportionality must be applied. Section 12(3) of the Human Rights Act 1998 provides that no relief is to be granted to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. There is no single, immutable standard by which to judge every application for an interim restraint order. In some circumstances, however, a temporary remedy may be necessary to enable the court to consider an application for interim relief pending trial (see Cream Holdings Ltd v Banerjee [2005] 1 AC 253). Relief can be granted to protect a short-lived relationship as well one that has gone on for some time.
Mr Tomlinson submitted that, because the claimant and SA had not at any stage conducted their relationship in public, his Article 8 rights were clearly engaged. And those rights were now at risk of being violated not merely by his relationship with SA being made known to a small number of people but by its being revealed in a sensationalist way to millions. There would be an impact on him, on his wife and on his children. It would cause serious harm to his family life and to his own well-being. Even if the story had nothing indecent in it, the fact of the relationship itself was private information, which the court should take care to protect — the more so if the relationship had lasted as long as the defendant was saying it had. The photograph the defendant wanted to publish was itself private.
As to the second stage, when the balance with the defendant's rights under Article 10 had to be struck, Mr Tomlinson submitted that this was not a case in which any public interest could be discerned. It had been suggested that the defendant's article would lay bare the claimant's hypocrisy. But this was not so. The claimant had made no public statement to the effect that he was someone who would not commit adultery. The question of his being a hypocrite did not arise. In the article published in "The Sun" in 2006 the claimant had not been quoted saying he was going to remain faithful to his wife. He had said that he was happily married and that his marriage would survive. Nor should one assume that this had necessarily been a voluntary disclosure. The claimant might have been heading off publication by somebody else. The comments he had later made in the press were not about sexual relationships. Mr Tomlinson said this case was not parallel in its facts to Ferdinand v MGN Ltd [2011] EWHC 2454 (QB). The claimant was not a public figure. As a one-time manager of England's football team, he was in no sense a role model. He had no such status. There was, therefore, no public interest at all in the defendant's story. This was purely a case of "kiss and tell". The claimant was therefore entitled at least to an interim order with a return date of Thursday, 23 August 2012, when the factual and legal issues in contest could be properly explored. Such relief would cause no real prejudice to the defendant.
Mr Tomlinson said the form of the proposed order complied with the guidance given by Lord Neuberger MR in JIH v News Group Newspapers Ltd [2011] 1 WLR 1645. This would not be a superinjunction; the defendant would be able to say that an injunction had been granted but not to identify the claimant. The usual undertakings as to the issuing of a claim and the provision of evidence in a witness statement would be given.
Mr Spearman began his submissions by placing them in the context of the claimant's past. He referred to the episode in April 2006, when "The Sun" had published the claimant's account of his previous affair. He submitted that what the claimant had disclosed then he had disclosed knowing the effect it would have on his family. It had been the claimant's choice then to sell his story. And it had been his choice to talk publicly about his family...
To continue reading
Request your trial
-
The Wife and Children of Omar Othman v The English National Resistance and Others
...not mean that the Claimants has to show that it is more likely than not that he will succeed at trial. 45 Lindblom J explained in McClaren v Newspapers Limited [2012] EWHC 2466 (QB) that: "8 There is no single, immutable standard by which to judge every application for an interim restraint ......