Full case report

Spelman v Express Newspapers (No. 2)

Reference [2012] EWHC 355 (QB)
Court High Court, Queen's Bench Division

Judge Tugendhat J

Date of Judgment 24 Feb 2012


Summary

Injunction – Privacy – Public Interest –  Bonnard v Perryman –  Minors – Article 8 – Article 10


Facts

C is a 17 year old who played Rugby for England in the U16 and other squads and for Harlequins Rugby Club on a number of occassions. The C  applied for an injunction via his parents acting as his litigation friends to restrain publication by the Defendant of certain confidential information. His mother (and one of his litigaton friends) is an MP and Secretary of State for the Environment, Food and Rural Affairs. On Saturday 11 February 2012, an injunction was granted by the judge hearing out of hours applications restraining publication of confidential information but declined to grant C anonymity. C applied for continuation of that injunction on the return date. C contended that as a minor he had a reasonable expectation of privacy and the information was inherently private.The information in issue related to the Claimant’s sporting achievements and aspirations.  The Court classified the information into (a) that of the D’s First Source  (b) that of the D’s second source and (c) information provided by C’s solicitors and in the hearing papers. The D resisted the application on the grounds that (a) the injunction was contrary to the rule in Bonnard v Perryman prohibiting prior restraint in defamation cases (b) the information was not private and there was no reasaonble expectation of privacy and (3) the public interest was in favour of publication.


Issue

(1) whether the claim was in essence a defamation claim prohibited by the rule in Bonnard v Perryman;

(2) whether the C had a reasonable expectation of privacy as a minor;

(3) whether C’s Article 8 rights outweighed the D’s Article 10 rights in publication such that it could be said it was more likely than not an injunction would be granted at trial.


Held

The Judgment was in 3 parts – an open judgment; closed judgment Part 1 (to be published if there is no appeal) and a closed judgment Part 2 (which cannot be published without C’s consent or the permission of the Court.

In discharging the injunction (pending any application by C to the Court of Appeal), it was held:

1.  The fact that C was 17 years old was of limited support to a reasonable expectation of privacy. C was nearly 18 and was an international sports player. Discussion of his sporting life and the effect it may have upon him is a discussion that contributes to a debate of general interst about a person who is to be regarded as exercising a public function.

2. There was a real propsect of success in the argument that there might be a legitimate story about C regardless of the identity of his parents.

3. Althought the place in which the activity was happening was private, it’s effects could not be confined to one place and it could not be said there would be no potential effects on other people.

4. There was no evidence that it was more likely than not that C would suffer unlawful instrusion, harassment or libel if no injunction were granted.

5. The Court was unable to conclude that the applicant was more likely than not to establish at trial that he has a resonable expectation of privacy.

6. It was not possible to discuss the issue of public interest in any detail in the open judgment. The newspaper had a good prospect of establishing that a publication could be in the public interest.  C’s status as a child supported the public interest debate about how institutions who have responsiblity for children perform their functions.

7. If a remedy in damages is to be effective, then the amount that the court may award must not be subject to too severe a limitation. It can no longer be assumed that  damages at the low level of cases like Campbell are the limit of the Court’s powers.

8. In the circumstances, there was no need for the Court to resolve the important point of principle raised in respect of whether the injunction was prohibited in Bonnard v Perryman.


Comment

The injunction remained in force pending C applying for permission to appeal. The judgment contains an analysis of the law of privacy relating to children and the importance of public debate about the welfare of children generally. The decision indicates that the age of a Claimant cannot be regarded as a sole or overriding factor in the grant or refusal of an injunction. The judgment at paragraphs 115 –  117 makes an interesting reference to the approach in French Courts in granting remedies for privacy actions including payments in advance in respect of damages, noting that French Courts do not regard an injunction as the only effective remedy for an invasion of privacy.


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Instructing Solicitors

Manches for C; Express Newspapers for D