Full case report
Hannon v News Group Newspapers Ltd
Reference  EWHC 1580 (Ch)
Court High Court (Chancery Division)
Judge Mann J
Date of Judgment 16 May 2014
Striking out – cause of action – defamation – privacy
The First Defendant to these two actions applied to strike out claims which alleged that the Claimant’s rights to privacy and confidentiality had been infringed by D1’s journalist paying a policeman for information which was then published in The Sun.
For the purposes of the applications, the pleaded facts in each case were assumed to be true, both involving an arrest and subsequent release without charge (for full facts, see - of the judgment).
D1 argued that the claims ought to have been brought in defamation, if brought at all. Reputation was an aspect of private life which was protected by Article 8, but the only cause of action which protected reputation was defamation. It argued that the Court should not allow a party to sidestep the protections provided by the law of defamation (including the one year limitation period) by framing a claim for damage to reputation in a different cause of action. D1 asserted that any defamation claims the Cs had were either statute barred or an abuse of process and that damages for any non-reputation damage would be minimal if not nominal. In addition, D1 argued that the privacy claims were flawed because there was no reasonable expectation of privacy in relation to both the arrests of the Cs and the reasons for these.
The applications were brought before D1 had served its Defences. D2 had served Defences making extensive admissions.
1. Whether the present claims (so far as they were good) lied solely in defamation
2. Whether the claims were really claims for damage to reputation
3. Whether damage to reputation could be the subject of a confidence or privacy claim
4. Whether damages would be too small to justify the proceedings
5. Whether the Cs had a reasonable expectation of privacy
Finding for the Cs, dismissing D1’s applications:
In order to succeed, D1 had to establish on the basis of the pleaded facts that the claims were unarguable as a matter of law, or an abuse. This was a high hurdle to surmount.
There was a heavy reputation element to the Cs’ claims, but this did not describe the essence of their claims. There were other claims as well, and these were not de minimis. It was not possible to describe the “nub” or reality of the claims as claims based on damage to reputation only. Not all of the enhanced embarrassment (enhanced because of the publication) could necessarily be ascribed to reputational damage.
It was not clear, as a matter of principle, that a claim based on damage to reputation could only be bought in defamation and not on the basis of confidence or privacy, such that the present claim was an abuse of process. The authorities relied on by D1 (see - of the judgment) did not suffice to establish this proposition. D1 had an argument, but not a sufficiently conclusive one. The point remained open to be argued at trial.
It followed that the possibility of recovering for damages to reputation could not be excluded. It was therefore unnecessary to consider D1’s submission that the maximum allowable damages would be so small that the case was an abuse.
The key authority relied on by D1 – Axel Springer AG v Germany (2012) 55 EHRR 15 – did not support an absolute right of the press to publish the fact of an arrest and its circumstances. As with a large number of disputes under Convention rights, this would be a question of fact and degree and highly fact sensitive.
The Judge considered the public nature of the central events in each case, suggesting that an aircraft cabin was no more a private place than the interior of a bus, where members voluntarily collect together, but not in the expectation of any privacy (see  of the judgment).
Although not reaching a conclusion on the matter, Mann J noted that the issue of whether damage to reputation could be the subject of a confidence or privacy claim was a serious one, capable of going to the heart of the cause of action in confidence and the newly developing wrong relating to the invasion of privacy. Judgment on this matter would indeed be significant and capable of leaving long-standing principles – such as the rule in Bonnard v Perryman – in considerable flux.
Atkins Thomson for the Claimants, Wiggin LLP for the First Defendant, Directorate of Legal Services for the Second Defendant
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