Reference: [2008] EWHC 2341
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 1 Jul 2008
Summary:
Privacy - Reasonable expectation of privacy - Public interest -Footage of sexual activities - Public figure – Allegations of Nazi role-play - Exemplary damages
Appearances: David Sherborne (Claimant)
Instructing Solicitors: Steeles Law for M; Farrer & Co for NGN
Facts
M, the President of the Federation Internationale de l’Automobile, the governing body of motor sport worldwide, was filmed engaging in sado-masochistic activities with five dominatrices in a private flat. An edited version of the footage was made available on NGN’s website in connection with a News of the World article entitled ‘F1 boss has sick Nazi orgy with 5 hookers’. M accepted that the events shown occurred but claimed that their disclosure infringed his right to privacy. He also denied any Nazi element. An interim injunction was denied on the basis that the footage was by that stage widely accessible. M brought proceedings for invasion of privacy. At the time of the hearing M had not elected whether to pursue damages or an account of profits. NGN sought to strike out the claim for exemplary damages before commencement of the trial.
Issue
Whether the claim in relation to exemplary damages should be struck out on the grounds that:
(1) in principle exemplary damages were not an obtainable remedy in a claim for infringement of privacy where this remedy had not previously been recognised;
(2) the claimant’s pleaded case did not raise a sufficient foundation of fact to establish the elements essential to recovering exemplary damages in other analogous areas of tort law.
Held
(1) That to recognise the availability of exemplary damages as a remedy for infringement of privacy would involve something of a departure and, in the absence of existing authority, it would require an extension by analogy. As Arts 8 and 10 were engaged Eady J was obliged to consider whether it was necessary and proportionate to recognise the availability of exemplary damages in privacy cases; he found this not to be the case. However, the application was refused on the grounds that privacy was a developing area of law and therefore the judge was bound to allow the damages issue to proceed in order that the Court could make factual findings at trial prior to a final ruling on the matter.
(2) That the Claimant’s case on this issue should be re-pleaded to expand upon allegations already pleaded in more general terms.
Comment
The Judge went on to rule at trial that exemplary damages were not available to the Claimant: see Mosley v News Group Newspapers Limited.