Full case report

Hutcheson v News Group Newspapers Ltd

Reference [2011] EWCA Civ 808; [2012] EMLR 2; [2012] UKHRR 1329
Court Court of Appeal (Civil Division)

Judge Lord Neuberger MR, Etherton & Gross LJJ

Date of Judgment 19 Jul 2011


Summary

Privacy – Injunction – Public interest –  s 12(3) Human Rights Act


Facts

C, Christopher Hutcheson, was the father-in-law and recently dismissed business partner of Gordon Ramsay. Both C and Ramsay had given interviews to the press making allegations against each other over their falling-out.

C appealed the refusal of Eady J to grant an interim injunction to prevent the publishers of The Sun, The Mirror and the Daily Mail from reporting the information that in addition to his wife and four children, he had a second family of two children from an extra-marital relationship. The Sun wished to publish the story in support of an allegation that C’s dismissal by Ramsay was connected with an allegation of misuse of company funds for private purposes connected with the second family.  C maintained the allegation was untrue and without any  proper factual foundation.

The second family, including two children, had been kept secret from the first family for many years, but  no longer. All children of both families were adults. C’s evidence was that he had played as full part as possible in the circumstances in the upbringing of the secret children, but that no one outside the families and his professional advisers were otherwise aware of their existence. C said he did not care for the potential effect on his reputation should the information be published, but wished to protect both families from unwarranted intrusion. No evidence was relied on by C from any family member.

The Judge had held there was no reasonable expectation of privacy as to the fact of the second family but, if there was, The Sun‘s public interest argument, together with public statements by C in relation to his dispute with Gordon Ramsay, brought the balance down in favour of freedom of speech. In the absence of any evidence of an intention to publish or threat to do so on the part of The Mirror and the Daily Mail, C’s application against those newspapers had been dismissed.


Issue

(1)  Whether the Judge’s finding that Art. 8 was “engaged” determined that there was a reasonable expectation of privacy in respect of the information;

(2)  Whether there was a reasonable expectation of privacy in the fact of C’s second family;

(3) Whether there was a sufficient factual foundation established by The Sun for an allegation of wrongdoing to support its public interest argument for being entitled to publish the fact of C’s second family; and

(4) Whether there was a threat to publish by The Mirror and the Daily Mail such as to support injunctions against them.


Held

(1)  The fact that Art 8 may be, in principle, applicable (or “engaged”) does not by itself mean there has been a breach of its provisions. While it may often be as or more convenient to treat the question of the ‘engagement’ of Art. 8 as encompassing the question of its infringement as well, the Judge could not be faulted for approaching the issue in stages.

(2)  It was not necessary in the circumstances to reach a conclusion as to whether the Judge was right to find no reasonable expectation of privacy given the Court of Appeal’s view on the balancing exercise. On the assumption that C did have a reasonable expectation of privacy, his privacy claim was, at best borderline.

(3) The Sun had established a strong claim to freedom of expression in the public interest and a real likelihood that C would fail at trial. The Judge had correctly held that it was neither necessary nor proportionate to restrain The Sun‘s freedom of expression.

(4) In the circumstances the CA did not need to decide C’s appeal against the refusal of injunctions against The Mirror and the Daily Mail.


Comment

This decision contained a potentially significant new angle on freedom of the press, with the CA identifying as an arguably relevant factor the real commercial concerns for sections of the media from developments in privacy law impinging on their ability to publish matters of sexual conduct. In this regard, the CA referred to the general public interest in having a thriving and vigorous newspaper industry, representing all legitimate opinions. Whilst the legal framework dictated that  the starting point must be the right to privacy, that right must not be read so widely that its claims become unreal and unreasonable. Moreover, there was an important distinction between the desire to keep information private and invoking the full panoply of the Court’s jurisdiction in order to do so. It is and should remain a strong thing to impose a prior restraint on publication.

As to reasonable expectation of privacy, the CA noted the sexual and family nature of the relationship to be protected but that this was a “bare fact” or “fact of relationship case”, that there was the unavoidably public nature of certain aspects of the life of the second family and that the first family now having knowledge of the second family removed much of the rationale for the claim to privacy.

The CA regarded it as noteworthy that there was no evidence from any family members (first or second) in support of the claim for injunctive relief when, as Tugendhat J observed in Terry v Persons Unknown at [65], if practicable the family members should have spoken for themselves, or their failure to do so been explained.


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Instructing Solicitors

Schillings for C; Farrers for News Group Newspapers; Davenport Lyons for The Mirror; Reynolds Porter Chamberlain for the Daily Mail