Reference:  EWHC 232 (KB)
Court: King’s Bench Division, Media and Communications List
Judge: Johnson J
Date of judgment: 17 Jan 2023
Summary: Misuse of private information – interim injunction – return dates
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Appearances: William Bennett KC - Leading Counsel (Applicant) Godwin Busuttil (Applicant) Adam Wolanski KC - Leading Counsel (Respondent)
Instructing Solicitors: Simon Burn Solicitors (Claimant/Applicant), Wiggin LLP (Defendant/Respondent)
The Claimants, who were a husband and wife who ran a company supplying PPE to the NHS and private hospitals, were photographed in Barbados. The Claimants obtained an urgent interim injunction restraining The Sun from publishing two photographs of their boat and second home. However, the judge refused to restrain publication of two photographs of the Claimants themselves, arriving at a restaurant on a public beach. The next day, The Sun published these two photographs.
At the return date, the Claimants sought to restrain publication of the published photographs until trial. The Defendant contended that the application sought in part to re-litigate issues that had been decided at the urgent hearing, but the Claimants argued that that hearing had proceeded on an erroneous basis because the photograph of Mrs Stoute that was published showed more of her body than the cropped version that was before the court at the earlier hearing.
(1) Should the application be entertained?
(2) Were the Claimants likely to succeed at trial including in proving that the photographs amounted to private information?
(3) Did the balance of convenience fall in favour of granting injunctive relief?
(1) Yes, the application was not an abuse of process. Whilst ordinarily if a claimant failed to secure an injunction their remedy was to appeal, the court had discretion to entertain a repeat application for an injunction at the return date if it considered there was good reason to do so.
In this case, a combination of features provided “good reason” to permit the repeat application: (i) the application had been made using the urgent procedure at very short notice; (ii) the Defendant disclosed the photographs less than 24 hours before publication; and (iii) if the Claimants had been informed that the disclosed photographs were cropped versions of the photographs that were to be published, they would have put different evidence before the court (namely, further evidence as to the circumstances in which the photographs were taken). Therefore, the application should be considered afresh rather than by way of review.
(2) No. The information contained in the photographs was what any person present at the place (a public beach) would have seen, and there was no additional element of inherently private information. Further, there was a “demonstrative and performative element” to the Claimants’ arrival at the beach by jet ski. The fact that more of their bodies were shown in the published photographs than the cropped versions did not make a material difference.
It was relevant that: (i) the Claimants did not consent to the photographs being taken, (ii) the photographs were taken by magnified telescopic lens, and (iii) the photographers had pursued the Claimants for two or three days. However, these factors were not present to a degree or extent which made it likely that the court would conclude they had a reasonable expectation of privacy.
(3) No. The photographs had already been published. Even if the Claimants could show that they had a reasonable expectation of privacy and were likely to succeed at trial, the balance fell against the grant of injunctive relief and in favour of maintaining the status quo. If the judge did not grant an injunction and at trial it was determined that the publication was unlawful, any further damage could be taken into account when assessing damages. By contrast, if the judge did grant an injunction and it was determined at trial the publication was lawful, there would have been a significant and unjustified interference with the Defendant’s right to freedom of expression.
This judgment contains useful analysis about the purpose of a return date, and circumstances in which it might be used to consider the application afresh. It also illustrates the current state of privacy law on photographs taken in public places. See in particular the list of examples in para 33 of cases which contain an “additional element” engaging the “inner zone” of privacy recognised in Peck v United Kindom  36 EHRR 41 at .