Reference:  EWHC 3308
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 16 Dec 2010
Summary: Privacy - Breach of confidence - Interim injunction - Article 8 ECHR - Right to private life - Article 10 ECHR - Freedom of expression - Public interest - Balancing exercise - Anonymity of parties
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Desmond Browne CBE QC - Leading Counsel (Claimant)
Instructing Solicitors: David Price Solicitors & Advocates for the Claimants
C1 was a television personality married to C2. They had teenage children and guarded their private lives closely. D2 was a single mother who had suffered from mental health problems from time to time. C1 and D2 conducted an “on and off” relationship between March 2009 and February 2010 by means of telephone, texts, email and tweets and had met each other face to face on two occasions. D2 wished to sell her story to the Sunday Mirror, published by D1. The Cs brought actions in breach of confidence and misuse of private information against the Ds.
There was evidence that D2 was initially reluctant to sell her story. She had met with her public relations advisor to try and prevent publication and had told Cs’ solicitor that she did not want the story to come out. However, on the view taken by the judge at the interim stage, the evidence, which was disputed, suggested that D2 was eventually persuaded by a journalist working for D1 and that the journalist had denigrated Cs’ solicitor without basis and may have manipulated and pressurised D2 into selling the story.
There was also disputed evidence to suggest that the journalist had forcibly concocted a ‘public interest’ argument in order to ‘get round’ developments in the law. The principal public interest argument that emerged was that a powerful ‘celebrity’ had knowingly preyed on and exploited a vulnerable ‘victim’ with mental health issues. D2 had initially denied that this was the case but now supported that interpretation.
Whether an interim injunction should be granted preventing disclosure of the relationship pending trial.
Granting an injunction:
(1) There was no doubt that the Article 8 rights of both the Cs and their family, as well as the Article 8 rights of D2’s family were engaged. The Ds’ Article 10 were also in issue and had to be weighed in the balance.
(2) It was unclear whether D2 really wanted to sell her story. The evidence suggested that D2 had changed her mind because she had been made to believe that the story would get out in any event, whether or not she withheld her cooperation. The pressure that had been exerted on her by the journalist, and the misrepresentations that had been made to her about Cs’ solicitor, was to be borne in mind by the court when carrying out the balancing exercise.
(3) There was insufficient evidence to support the public interest argument that C1 had exploited a vulnerable woman for his own gratification. The evidence showed quite clearly that D2’s participation in the exchanges had been willing and enthusiastic. It was only when the journalist had perceived this possible angle that D2 took this position. It was a unilateral interpretation which D1 and its lawyers now sought to place upon what had happened. It is for the court to decide whether the facts give rise to a public interest and in this case, the Ds were unlikely to be able to establish the facts giving rise to the public interest argument at trial.
(4) It was necessary and proportionate to withholds the identities of the parties to ensure, so far as possible, that the private information would not be revealed pending trial.
It is for the court to decide whether a public interest argument can be supported on the facts. At the interim stage, where there may still be conflicts of evidence and interpretation, the court has to decide what was “likely” to happen at trial on the basis merely of what was so far available (applying Cream Holdings v Banerjee). Defendants may superimpose their own interpretation of events, in order to construct a viable public interest argument – however, it is ultimately for the court to decide whether that interpretation is the true one and whether there is in fact a public interest in the disclosure of the information.