Full case report

Abbey v Gilligan

Reference [2012] EWHC 3217 (QB)
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 20 Nov 2012


Summary

Privacy- Confidence- Media Law – Public Interest – Abuse of Process – Whether a consultant to a company had title to sue in respect of company emails obtained by the Defendants and used in the publication of an article – whether the obtaining of the emails was a breach of confidence or misuse of private information – whether the publication of the article was a breach of confidence or misuse of private information – whether there was a public interest in publishing emails – whether the action was an abuse of process


Facts

C was a business consultant who helped companies set up, find investors and float on the stock market. On 17 March 2005, prior to London being selected to host the Olympic Games, he assisted Lord (Sebastian) Coe in setting up Sebastian Coe Ltd, whose principal activity was the exploitation of Lord Coe’s intellectual property rights. Shortly after London won the right to host the Games, he assisted Lord Coe in the setting up the Complete Leisure Group which bought Sebastian Coe Ltd and was planned to float on AIM.

In September 2007 Dispatches broadcast a programme dealing with, amongst other things, the earning capacity of Lord Coe in the context of his role in relation to the London Olympics. It looked at CLG and Lord Coe’s relationship with C. In the period immediately before the broadcast a journalist working on the Dispatches programme came into possession of copies of emails about CLG which he had been given to him by a confidential source. Time did not permit Dispatches to use the emails and he passed them to D1 who wrote an article based on the emails in the Evening Standard on 14 September 2007.

No complaint was made by C until a letter of claim was sent, four years later, on 5 August 2011. It alleged that the Ds were guilty of criminal offences relating to e-mail hacking and demanded damages in respect of those offences. The letter also alleged that the article had caused C to lose his business and be forced into bankruptcy. The claim, funded on a CFA, was issued on 10 November 2011. The Particulars of Claim averred that either the emails had been obtained by email hacking or had been received by the Ds from someone who had improperly obtained them from the C. The hacking allegation was withdrawn on 22 August 2012 and was not pursued at trial.


Issue

(a) Whether C had a claim in breach of confidence or misuse of private information;

(b) If so, whether there was a public interest justification for publishing the emails;

(c) Whether the claim was an abuse of the process of the court.


Held

Dismissing the claim:

(a) C had no reasonable expectation of privacy and the Ds had no duty of confidence in regard to information contained in the emails merely by reason of the fact that it was contained in emails. Furthermore, the Ds had no prior relationship with C and could not owe C any duty or obligation of confidence in respect of these e-mails. Any duty, if it existed, would be owed to CLG. The C had no title to sue in respect of these emails which were CLG emails. He was only a consultant to the company. For the same reasons the information in all but one of the emails was not private to him. In relation to the email which was private or confidential to C, the court stated that a journalist considering whether or not to publish information must, in many cases, have an opportunity to read the information to make that decision. The court should not in such cases readily find that the obtaining or reading of the information is a breach of confidence or misuse of private information. In this case, D1’s reading of the single personal email was not actionable.

(b) Although it was not necessary to consider any justifications for publication, the publication of the article was justifiable in the public interest. Lord Coe was a public figure. The article corrected false statements put out by Lord Coe’s solicitors about C’s role within CLG; it contributed to a debate of public importance in raising whether Lord Coe kept business and public issues separate; it raised serious questions about Lord Coe’s ability properly to carry out his Olympic role by demonstrating that CLG was unable to pay its professional advisers and other debts as they fell due; it was proper to question Lord Coe’s decision to entrust matters to C in 2007 and called into question his own private and public judgment.

(c) The claim was an abuse of the process of the court. The making of baseless threats to report a defendant to the police in order to induce a defendant to settle a case otherwise than on the basis of its merits can be an abuse of civil process. On the facts, this case was an attempt at extortion and hence an abuse of process. Further, C never had a realistic prospect of obtaining substantial damages for breach of any duty of confidentiality or misuse of private information owed or any prospect of obtaining the declaration he sought. The claim served no useful purpose and was an abuse for the reasons given in Jameel v Dow Jones [2005] QB 964.


Comment

The judgment is likely to be of most interest for the findings on abuse of process. It contained a strong and unequivocal finding that C sought settlement by improper means which included the making of baseless allegations of criminality and was described as “an attempt at extortion” by the Judge.


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Instructing Solicitors

PSB Law for Claimant; RPC for the Defendants