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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D v L [2003] EWCA Civ 1169 (31 July 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/1169.html Cite as: [2004] EMLR 1, [2003] EWCA Civ 1169 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
His Honour Judge Norris QC
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALLER
and
LORD JUSTICE CARNWATH
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D |
Appellant |
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- and - |
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L |
Respondent |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Rajeev Thacker, Ms Shanti Mauger (instructed by the Bar Pro Bono Unit and assisted by Freshfields Bruckhaus Deringer solicitors) for the Respondent
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Crown Copyright ©
Lord Justice Waller :
"They [the tapes] feature in this case because D fears that in the course of an argument L or D may have said something about his sexual preferences or adventures that could be used to his disadvantage. He has had all of the tapes since shortly before the trial and no such passage has been drawn to my attention. Mr Duckworth submits that, nonetheless, as a matter of principle (and without reference to the contents) I can order the delivery up of tapes belonging to L, of conversations to which she was a party, in property occupied by her, to the other party to the conversations, they must be confidential and because his privacy has been invaded. I do not consider that it is a breach of confidence for one party to disclose (or even publish) the content of a conversation with another. Something more than those bare facts is required."
He then referred to A v B plc [2003] QB 195 at 204ff in order to identify "the something more" citing various propositions:
"(a) The claimant (A) must have some interest of a private nature worthy of protection; examples of such interests are health, personal relationships, finances, behaviour that a reasonable person would understand was meant to be unobserved;
(b) There must be some duty of confidence to which the defendant (B) is subject, and such a duty will arise whenever B is in a situation where he knows or ought to know that B can reasonably expect his privacy to be respected;
(c) If there is an intrusion (e.g. by the use of surveillance techniques) in a situation where A reasonably expects his privacy to be respected then that intrusion will be capable of giving rise to liability to an action for breach of confidence, but the publication of the information will not necessarily be injuncted;
(d) Between sexual partners outside marriage there is an especially acute conflict between the claims of privacy and the claims of freedom of expression. Where there is a shared confidence which B does not wish to preserve, A's right to have the confidence respected is not extinguished, but it is undermined: the extent to which it is undermined will vary with the nature (particularly stability) of the relationship.
(e) A public figure is entitled to a private life, but his actions will be more closely scrutinised by the media: and if he has courted publicity has less ground for objection to the intrusion.
(f) In drawing the balance sheet between the respective interests the Court does not act as an arbiter of taste; and it may often not be required to adopt a technical approach.
(g) Once the balance sheet is drawn, it may not point clearly in either direction, and if this is the position interim relief should be refused."
(i) The judge said he was being asked to rule in the abstract, there being no indication of what L intended to do, and no evidence of an intention to abuse her freedom of expression; L was entirely free to tell her side of the story and "it is accepted (recorded the judge) that she is free to say that D has admitted interest in and participation in [his proclivities including 'the additional aspect']"; it should not be decided in the abstract whether she should be deprived of proving the truth of her assertion, before the court knows what L intended to say, to whom and in what manner.
(ii) The tapes simply contained an admission of D's sexual proclivities. D had given evidence as to certain aspects. The judge had recorded in his main judgment L's evidence relating to "the additional aspect". Both were now in the public domain, and indeed to some extent published in the press; the only function of the injunction would be for D to be able to deny in public the truth he admitted in private, and to deprive L of her ability to prove the truth of admissions made to her.
(iii) Since the balance did not come down clearly on D's side, the injunction should be refused; the judge added that did not give L carte blanche; he was not prejudging an application that D might make in certain circumstances; he was not prepared to grant an injunction covering all circumstances for all time.
"The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged."
Thus either surreptitious behaviour or breach of a confidential relationship can give rise to a duty of confidence which would be protected by the court. This is also emphasised in the judgment of Keene LJ in Douglas v Hello! [2001] QB 967 paragraph 167.
"…if the present case concerned a truly private occasion, where the persons involved made it clear that they intended it to remain private and undisclosed to the world, then I might well have concluded that in the current state of English law the claimants were likely to succeed at any eventual trial."
If the court had been satisfied as to the existence of the obligation of confidence there is little doubt that they would have granted an injunction. However it appears that the court felt there might well be circumstances where the Douglases would not establish the behaviour necessary for a breach of confidence claim at the trial and thus considered the Douglases prospects by reference to a possible tort of privacy. This formed the main subject matter of Sedley LJ's judgment.
"(ix) If there is an intrusion in a situation in which a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be justified –A-v-B at paragraph 11(x).
…………..
(xiii) It can be right to regard unauthorised photographs as "information" for the purposes of the law of confidence. In the case before me the unauthorised photographs have been said to convey the information "This is what the wedding and the happy couple looked like" – Douglas supra at paragraph 138 per Sedley LJ. The law of confidence can well encompass photographs of such an event and no less so because the event could have been described in words or by drawings. The photographs:-
"… conveyed to the public information not truly otherwise obtainable, that is to say, what the event and its participants looked like. It is said that a picture is worth a thousand words. Were that not so, there would not be a market for magazines like Hello! and OK! The result is not obtainable through the medium of words alone, nor by recollected drawings with their inevitable inaccuracy. There is no reason why these photographs inherently should not be the subject of a breach of confidence."
per Keene LJ in Douglas supra at paragraph 165.
(xiv) It is a familiar course for Chancery Judges to grant injunctions to restrain the publication of photographs taken surreptitiously in circumstances such that the photographer is to be taken to have known that the occasion was a private one and that the taking of photographs by outsiders was not permitted – Douglas supra at paragraph 68 citing Creation Records Ltd –v- News Group Newspapers Ltd [1997] EMLR 444 and Shelley Films Ltd –v- Rex Features Ltd [1994] EMLR 134.
(xv) It is well settled that equity may intervene to prevent a publication of photographic images taken in breach of confidence. If, on some private occasion, the prospective claimant makes it clear, expressly or impliedly, that no photographic images are to be taken of them, then all those present will be bound by the obligation of confidence created by their knowledge (or imputed knowledge) of that restriction – Douglas supra at paragraph 71 per Brooke LJ."
Carnwath LJ :
Lord Phillips MR :
i) The judge held that the respondent made the tape recording for her own protection and that finding has not been challenged;
ii) The respondent has done nothing that indicates that she intends to publish the matters on the tapes which the appellant does not wish to be disclosed;
iii) Those matters have already been brought into the public domain;
iv) Those matters are a small part, and in my view an insignificant part, of the personal information that the respondent has obtained about the appellant in the course of or as a result of their relationship. No injunction has been sought in relation to the remainder of this information and the respondent has not published, or threatened to publish it;
v) The appellant has written letters of a nature which would, in any event, have made me reluctant to afford him equitable relief.