Reference:  EWHC 787 (QB)
Court: High Court, Queen's Bench Division
Judge: Nicol J
Date of judgment: 11 Apr 2016
Summary: Privacy - Misuse of Personal Information - Breach of Confidence - Reasonable Expectation of Privacy - Vicarious Liability - Limitation - Operation Elveden
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Appearances: Christina Michalos KC (Defendant)
Instructing Solicitors: Government Legal Department
The Claimant (C) was the Commanding Officer of a Royal Navy warship. Complaints were made he had bullied junior officers on the ship resulting in an Equal Opportunities Investigation (EOI) which upheld the complaints. On 10th December 2004, C was ordered to hand over command of the ship (which was returning from deployment in the Gulf) to his second-in-command and return to London. In a letter of 13th December 2004, he accepted that his position as Commanding Officer was untenable and did not oppose his permanent removal; he was formally removed from command on 15th December 2004.
On 14th December 2004, the Sun newspaper published an article with the headline “Mutiny on Gulf warship: ‘Bully’ Captain is kicked off” about his removal and two further articles on 15th and 17th December 2004. C remained in the Navy until 2007 when he resigned his commission.
In 2013, C was informed by the police (Operation Elveden) that an employee of the Ministry of Defence had received payment from The Sun for a story in connection with the C. The MOD employee was subsequently prosecuted for misconduct in public office to which she pleaded guilty.
In 2014, C brought proceedings against the MOD for misuse of private information and/or breach of confidence in respect of the disclosure to The Sun of his information in relation to the EOI. The MOD brought a third party claim for a contribution and/or an indemnity against News Group Newspapers (publishers of The Sun).
- Did the Claimant have a reasonable expectation of confidence and / or privacy in the relevant information at the relevant time?
- Did the MOD employee disclose any or all of C’s pleaded information to the Sun?
- Did the disclosure of this information constitute a breach of confidence and/or misuse of private information and/or a breach of Article 8 of the ECHR?
- Was the MOD vicariously liable for the acts of its employee?
- Was any damage suffered by C caused as a result of the disclosure of the C’s information by the MOD employee?
- Is the claim statute barred under the Limitation Act 1980?
- Could C rely on Article 8 to the extent any of the damage is loss of reputation which is a foreseeable consequence of his own actions?
- Was C’s claim for damage to reputation an abuse of process?
Dismissing the claim and finding for the Defendant:
1. C had no reasonable expectation of privacy in the information. The fact his role was a public position was an important context and his removal from command was a public fact. Misconduct was relevant to the question of whether C had a reasonable expectation of privacy as well as relevant to the balancing of interests under Articles 8/10 ECHR. The evidence was removal of a ship’s commander during deployment was highly unusual which indicated C’s misconduct was regarded as serious but also that it was bound to become public. There was an important distinction to be drawn between stage when an EOI was being conducted and when it was completed with conclusions accepted. C’s acceptance in cross examination that his conduct as bully could not be expected to be kept secret was also relevant. Friend v UK, R (Countryside Alliance v AG, Axel Springer AG v Germany and In Re JS applied.
2. There was no separate claim for breach of confidence because C could not show that the MOD employee owed him any duty. The duty was owed to the Crown/MOD.
As a consequence of dismissal of the Claim, this issue of an indemnity on the Third Party claim did not arise. The Court also expressed obiter views on other issues including:
3. There was no breach of Article 8 by disclosure of the information as C did not have reasonable expectation of privacy.
4. C could not show necessary casual links between the wrong complained of and the damage; even in the absence of leak, the fact of C’s removal from command and the reasons why would have become public knowledge. Following AG v Guardian Newspapers (No 2), even if the MOD had brought a claim for breach of confidence against its employee, it would have needed to show disclosure was contrary to the public interest which it would have been unable to do.
5. If C had succeeded, the features of the case did not preclude vicarious liability for the MOD’s disclosure.
This case joins a relatively small number of authorities in which the Court has dismissed a claim on the basis of no reasonable expectation of privacy at all in respect of the information in issue (rather than finding in the second stage balancing process that competing interests outweighed the Claimants rights). The Court drew a distinction between private employment and public functions, noting that it was “significant that the Claimant was discharging a very public function, was in charge of a warship and had by his offensive conduct imperilled the fighting effectiveness of the ship.”
The Defendant and Third Party had also argued that the claim was a purely reputational claim and framing it as misuse of private information was an abuse of process (as considered in Hannon v MGN). The Court described this issue as “not straightforward” and considered it was not necessary to express a view. Similarly, the Court declined to express a view on the Defendant’s argument (relying on Axel Springer) that the Claimant could not rely on Article 8 to the extent the damage to reputation flowing as foreseeable consequence of his own actions. Practitioners may find the obiter discussions of the limitation arguments of interest.