A v B Plc and Another

CourtCourt of Appeal
Docket NumberCase No: A2/2001/2086
Judgment Date11 Mar 2002
JurisdictionEngland & Wales
Neutral Citation[2002] EWCA Civ 337

[2002] EWCA Civ 337

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(MR JUSTICE JACK)

Before

The Lord Chief Justice of England and Wales

Lord Justice Laws and

Lord Justice Dyson

Case No: A2/2001/2086

Between
A
Appellant
and
B & C
Respondents

Mr richard spearmAN QC (instructed by Marcus Partington, Solicitor) appeared on behalf of the Appellant

MR ALASTAIR WILSON QC, MR STEPHEN BATE AND MR JEREMY REED (instructed by George Davis Solicitors) appeared on behalf of the First Respondents

The Second Respondent did not appear and was not represented

Lord Woolf CJ: This is the judgment of the Court

THE BACKGROUND

1

The case involves two linked appeals. They relate to four interim judgments which Jack J gave in the same proceedings. The substantive appeal is against the fourth judgment of 10 September 2001 which granted A an interim injunction against B and C. That injunction had been previously granted on 27 April 2001 in different terms by Jack J for reasons which he set out in his first judgment of 30 April 2001. The second appeal is an appeal against the third judgment of Jack J. The third judgment was given on 5 July 2001. That decision reversed his second judgment of 20 June 2001 which had discharged the injunction which Jack J had originally granted on 27 April 2001.

2

A is a footballer with a premier division football club. B is a national newspaper. C is one of two women with whom A, who is a married man, had affairs. The injunction was granted to restrain B from publishing the stories which C and the other woman, D, had sold to B recounting their affairs with A. In using initials to describe the parties we are following the course adopted in the court below to protect the identity of A. D has taken no part in the proceedings.

3

Since the coming into force of the Human Rights Act 1998 ("the 1998 Act") there has been an increase in the number of actions in which injunctions are being sought to protect the claimants from the publication of articles in newspapers on the grounds that the articles contain confidential information concerning the claimants, the publication of which, it is alleged, would infringe their privacy. Such actions can be against any part of the media.

4

The applications for interim injunctions have now to be considered in the context of articles 8 and 10 of the European Convention of Human Rights ("ECHR"). These articles have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court's approach to the issues which the applications raise has been modified because under section 6 of the 1998 Act, the court, as a public authority, is required not to act "in a way which is incompatible with a Convention right". The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.

5

The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. As the headnote makes clear, in Argyll v Argyll [1967] Ch 302 Ungoed-Thomas J decided that "a contract or obligation of confidence need not be express, but could be implied, and a breach of contract or trust or faith could arise independently of any right to property or contract (other than any contract which the imparting of the confidence might itself create); and that the court in the exercise of its equitable jurisdiction would restrain a breach of confidence independently of any right at law". In Stephens v Avery [1988] 1 Ch 449, Sir Nicholas Browne-Wilkinson V-C made it clear that this approach could be extended to other relationships apart from that between husband and wife, though it would not necessarily apply in the same way.

6

The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account.

7

Actions for breach of confidence are usually brought at short notice and are followed by an immediate application for an interim injunction (as happened here) which has to be heard urgently without adequate time either for preparation or for the hearing of the application. If an interim injunction is to be granted it is essential that it is granted promptly because otherwise the newspaper will be published and then, from the claimant's point of view, the damage will have been done. Notwithstanding these constraints of time, the applications for injunctions in this class of action are frequently marked by the citation of very large numbers of authorities which the unfortunate judge has to do his best to digest prior to announcing his decision as to where the balance falls in the particular case.

8

In the present appeals the parties have placed before us three lever arch files of authorities. In addition, during the course of the hearing we were handed a number of other domestic and Strasbourg decisions. Finally we have another file which contains what was described as "Press Complaints Commission Material", which includes 17 decisions of the Press Complaints Commission, as well as the Code of Practice of the Commission and a further judgment. It is understandable that, in what is a developing area of the law, citation of authority is necessary, but we would hope that the law has now, at least at the level below the House of Lords, become sufficiently clear to make the citation of authority on this scale unnecessary. This comment is not to be understood as a criticism of the counsel appearing before us on these appeals. They were seeking guidance as to the proper approach to the granting of injunctions in this sort of action. We do, however, hope that as a result of our decision the citation of authorities on this scale will be regarded as unnecessary and not accepted by judges of first instance who have to hear these applications. This action on the part of judges is necessary and part of their responsibilities because of the overriding objective to deal with cases justly in accordance with CPR Part 1.1 (2). The need for control of the excessive citation of authority should be borne in mind in deciding questions of costs since it leads to disproportionate expense which can in turn make litigation beyond the means of the ordinary person.

9

The authorities largely fall into two categories. The first category consists of the decisions of the Strasbourg Court on articles 8 and 10. These decisions are valuable sources of the principles which the articles embrace. The decisions do however tend to repeat the same principles in successive cases in order to apply them to different situations. The citation of a single case may therefore be all that is required. The application of the principles to the facts of a particular situation is largely unhelpful because that is primarily the task of the domestic court. The other category of cases are decisions given in this jurisdiction. If they are authorities which relate to the action for breach of confidence prior to the coming into force of the 1998 Act then they are largely of historic interest only.

10

The citation of authorities on the present scale adds hugely to the costs of litigation which is already inevitably high. It also creates huge problems for the judges hearing the applications, particularly in view of the urgency with which they have to be dealt. In order to assist the parties we now set out guidelines which are intended to assist the judiciary and the parties to deal with the majority of these applications in a more proportionate manner.

THE GUIDELINES

11

We suggest that if judges direct themselves in accordance with the following paragraphs in many cases they will not need to be burdened by copious reference to other authorities:

i) The consideration of this type of application should generally begin with recognition that what is being considered is an interim application for an injunction. This means that whether any injunction is granted at all is a matter of discretion for the judge, to be exercised in accordance with what are now well-established principles which include the need to establish, as we will explain later, that after a trial it is likely that an injunction would be granted after a substantive hearing, while recognising that the grant or refusal of an interim injunction could well determine the outcome of the entire proceedings.

ii) The fact that the injunction...

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