Reference:  EWHC 3527 (QB)
Court: High Court, Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 12 Dec 2012
Summary: Privacy - strike out - Jameel - abuse of process - Article 8 - Article 10
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Appearances: Aidan Eardley KC (Claimant)
Instructing Solicitors: Archerfield Partners LLP for C; David Price Solicitors and Advocates for D
C was Katie Price, D3 was her ex-husband Peter Andre. D4 was a former friend and close confidant of C. D1 was the MD of D2, a company providing public relations and celebrity management services, formerly providing them to D3 and C but after the divorce only to D3. The claim against D4 related to an affidavit which was prepared for her by solicitors acting for D3 in 2009. It covered C’s relationship with two men, Mr A and Mr B.
The affidavit contained detailed information about C’s relationship with Mr A, with whom she had had a business relationship, and with whom it had been claimed she had also had a sexual relationship. D4 commented on the relationship as it appeared to her, and set out information which she claimed C had communicated to her. It also contained a statement that C had communicated to her the identity of Mr B, who she claimed had raped her.
C claimed damages, delivery up of documents, and the disclosure of the names of those to whom the information had been disclosed. She pleaded that the information in the affidavit was private, and that she had a reasonable expectation of privacy in respect of it. She also alleged that D1 and D4 had entered into negotiations with the News of the World for publication of it.
D4 admitted meeting the newspaper to discuss an article about C, and that the information regarding Mr A was mentioned at the meeting. D4’s defence was that the extent of C’s publication of material about her own private life meant that her expectation of privacy was overridden, and any communications by D4 were justified. D4 also pleaded a public interest defence with reference to the PCC Code, and that there were no grounds to apprehend repetition of the information.
The application before the court was by D4 that the claim against her be struck out pursuant to CPR 3.4 (2) (b) and/or the inherent jurisdiction of the court. The main ground for the application was the court’s jurisdiction to strike the claim out as a Jameel abuse, on the basis that there was no real and substantial tort so as to constitute a substantial interference with the Claimant’s privacy rights. The further bases for it were that it served no legitimate purpose, that there were no advantages to it that outweighed the disadvantages involved, and that the claim constituted an unnecessary interference with D4’s freedom of expression.
Should the claim against D4 be struck out as an abuse of process under the court’s Jameel jurisdiction?
Dismissing D4’s application:
It would be wrong for the court to form a view on the papers about the sensitivity of the Claimant to interference with her privacy at the interlocutory stage. The Judge accepted the Claimant’s submission that her evidence of the hurt and upset she had suffered could not be dismissed summarily.
In relation to the details of A and B’s identities, this was information in respect of which C had a reasonable expectation of privacy, albeit that C had made disclosures of it to the public.
D4’s Article 10 rights were engaged by the fact that C had brought the claim. At the stage of the balancing exercise a court would have to take account of the fact that there was no threat by her to make further disclosures.
Although the court has found cases to have ceased to be worth pursuing, this was not one of them, the Judge accepting the Claimant’s submission that in privacy claims there is little room for a finding that the claim contains allegations serious enough to pass the threshold for the engagement of Art 8, but for there nevertheless to be no real or substantial tort.
Comments by the Judge underline that there are circumstances where a Jameel strike out application may be appropriate in a privacy claim. The potential to make such an order is enlarged by the possibility of it being conditional. This was alluded to in Jameel itself, and a conditional order was made in a libel claim by the Court of Appeal in Cammish v Hughes.
The Judge said that the refusal of the Court of Appeal to strike out the claim on Jameel grounds in White v Withers LLP was distinguishable on the basis that the defendants in White were solicitors. However, the failure of the application here ultimately points to this step in a privacy action generally being more difficult for a defendant than the more conventional Jameel strike out made in a libel claim.