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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 (20 May 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/554.html Cite as: [2013] WLR(D) 189, [2013] EWCA Civ 554 |
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ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MRS JUSTICE NICOLA DAVIES DBE
HQ11X00412
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE RYDER
____________________
AAA (BY HER LITIGATION FRIEND BBB) |
Appellant |
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- and - |
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ASSOCIATED NEWSPAPERS LIMITED |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Desmond Browne QC and Ms Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Respondent
Hearing dates: 29 & 30 April 2013
____________________
Crown Copyright ©
The Master of the Rolls:
Introduction
The article published on 16 July 2010
The grounds of appeal
The role of the Court of Appeal
The first ground of appeal: failure to consider the claimant's best interests
"46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."
"In cases involving children under 16, editors must demonstrate an exceptional public interest to override the normally paramount interests of the child."
"The Code goes to exceptional lengths to safeguard children by raising the thresholds on disclosure and defining tightly the circumstances in which press coverage would be legitimate.
For the most part, this applies up to the age of 16 …
Children of the famous: the rules apply equally to children of parents from all walks of life."
"113. I have little difficulty accepting the claimant's submission that the paternity of this young child is a matter which engages her rights pursuant to Article 8. The provisions of a statute, yet to be enforced, provide little by way of counter argument.
114. As to the paramount nature of a child's interests in any subsequent balancing exercise, the defence rightly stated that this case was not conducted as a "best interests of the child" hearing. Had that course been taken I would have expected other evidence to be called, including expert evidence. I note that in the written submissions received following the hearing it was stated on behalf of the claimant that the "child's best interests are not paramount in a sense that they must always prevail over all other concerns however powerful." I attach considerable weight to the claimant's interests but I do not regard them as being so powerful as to override, without more, the competing interests involved in any balancing exercise.
115. The approach which I have adopted is that having identified that the claimant's Article 8 rights are engaged, to then ask whether she has a reasonable expectation of privacy in respect of the matter of her paternity. Of itself, I accept that this issue is one in respect of which this young claimant would have a reasonable expectation of privacy such as would allow her mother the time to decide when it would be appropriate to tell her who her father is. However, a real difficulty in this case has been the manner in which the claimant's mother has, on identified occasions, chosen to deal with the question. I refer to her conversations with friends, but in particular the events of the country weekend (Private Appendix 5), the process leading up to and the publication of the interview in the magazine (Private Appendix 6) and to my findings."
"A. I don't
Q. You don't?
A. I don't necessarily think it is in her best interests, I just think it is in the best—I don't want it discussed in the newspapers. I do not think that is right. It is up to me as a parent and it is up to her other parent to decide when and how we tell her about her paternity."
The second ground of appeal: the judge was wrong to hold that the reasonable expectation of privacy was weakened by the two events.
General
"The question whether a child in any particular circumstances has a reasonable expectation of privacy must be determined by the court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children's lives should remain private … The court can attribute to the Appellant reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing."
"The claimant's mother is an intelligent professional woman. She chose to speak and act as she did. In my view, the result has been to compromise the claimant's reasonable expectation of privacy upon the issue of her paternity. I do not find that the claimant has no reasonable expectation, rather the weight to be attached is of a lesser degree than would have been the case had nothing been said or permitted to be said upon this matter."
The country house weekend
"In his closing submissions, Mr Price QC made the point, which I accept, that this was a private house party. However, [the mother] was not talking to an old or close friend. She had never met Nicholas Coleridge prior to that evening. Her evidence, that she did not know he was President of Condé Nast was surprising, given the circles in which [the mother] moved. The question asked by Nicholas Coleridge, namely was [the mother's partner] the father of the claimant, could have been shortly answered in the negative by [the mother]. If it was the wish of the claimant's mother to stop gossip or speculation, no more was required to be said. It raises the question of why it was [the mother] chose to volunteer the information in the manner in which she did. In my view it points to an inconsistency or ambivalence in her approach to the issue of speculation concerning the paternity of her daughter."
"It appears to us that there is potentially an important distinction between information which is made available to a person's circle of friends or work colleagues and information which is widely published in a newspaper."
See also K v News Group Newspapers Ltd at paras 10(3) and 11 of the judgment of Ward LJ.
The article in the T magazine
"[the mother] has not confirmed, and will not confirm, at this stage, that [the father] is the baby's father. 'Because it's private' she says. 'It's private for all sorts of reasons. And it is very important to me to protect my child's privacy and to ensure that she is allowed to grow up without intrusion. Neither her father nor I will speak publicly about her. She can't speak for herself.'"
"25. I am satisfied that at the lunch on 9 September 2010 [the mother] had the choice of proceeding with the [magazine] article or stopping the process. The mother chose to go ahead with an article that she must have been aware would include reference to her daughter and inevitably speculation as to her daughter's paternity. I accept the evidence of [the mother] that in proposing amendments to draft, she would direct her attention to matters of particular concern. Given her stated aim in these proceedings, it is surprising that the focus of efforts was directed to possible concerns of her mother, information relating to her sisters and to [her partner] and his activities.
26. On behalf of the claimant, it is said that by this time information relating to the claimant and allegations as to paternity were already in the public domain. I accept the point. However, in agreeing to an interview with [the magazine], which inevitably was going to contain information upon these matters, [the mother] was playing a part in the perpetuation of facts and the speculation which is at the core of these proceedings. No doubt that is why [the mother's] solicitors advised her not to do the interview, advice which she chose not to follow. [The mother] is an intelligent, professional woman, she knew what she was doing. It is not enough to say that this claim is brought on behalf of the claimant and not her mother. Given her young age, the claimant's reasonable expectation of privacy is affected by her mother's conduct of what is her private life. The fact that her mother contrary to advice from solicitors acting on behalf of her daughter chose to go ahead with an article which she knew would contain information about her daughter and speculation as to her daughter's paternity demonstrates an ambivalence on her part, to the matters which are at the core of this application.
27. The inconsistency in the approach of [the mother] to disclosure of facts relating to the paternity of her daughter has been an issue in these proceedings. I have reached a view as to its core. [The mother] loves and is rightly proud of her daughter. She feels strongly that her daughter's conception was not and should not be perceived as the "drunken mistake" so described by a "friend" in first article. [The mother] is understandably concerned that such a perception is not one of which her daughter should learn.
28. The identity of the father of her daughter is a matter upon which [the mother] is not without some pride. I believe [the mother] is torn between two competing factors:
(a) A wish to inform certain individuals, if not of the father's identity, then at least to point them in a certain direction in order to "set the record straight; and
(b) The stated aim in these proceedings which is, for the present, to keep the matter a secret save for family and close friends.
29. It is the wish identified in 28 (a) which, I believe, prompted [the mother] to volunteer the unnecessary information to Nicholas Coleridge, is the explanation for her behaviour as described by [the editor] of the magazine [at their lunch on 9 September] and was a factor in her cooperation with the [magazine] interview. Having seen and listened to the evidence of [the mother], I am not confident that she has resolved this particular conflict."
The third ground of appeal: challenge to the judge's balancing of the rights under article 8 and 10 of the ECHR.
"118. The Article 10 rights of the defendant must be recognised by the court in carrying out the balancing exercise as between the claimant's Article 8 rights and the defendant's Article 10 rights. The test required to justify publication is a high one, "exceptional public interest". It is undisputed that there is a public interest in the professional and private life of the claimant's supposed father. His professional position speaks for itself. As to his private life, he is man who has achieved a level of notoriety as result of extramarital adulterous liaisons. Of itself, the fact of an extramarital affair does not render inevitable the publishing of information that, as a result, a child was conceived. However, the claimant is alleged to be the second such child conceived as a result of an extramarital affair of the supposed father. It is said that such information goes to the issue of recklessness on the part of the supposed father, relevant both to his private and professional character, in particular his fitness for public office. I find that the identified issue of recklessness is one which is relevant to the professional and personal character of the supposed father. Specifically, I find that it goes beyond fame and notoriety.
119. For the reasons identified I find that the claimant's reasonable expectation of privacy is to be accorded less weight than would have been the position had the claimant's mother said or done nothing. In balancing the claimant's expectation of privacy against the public interest in the supposed father and in particular the recklessness, relevant to his character and fitness for public office, I find that the publication of the fact of the claimant's birth in the circumstances alleged was justified. As to the claimant's mother's appointment by the claimant's supposed father at a time when she was pregnant, of itself that would not have been of sufficient weight to justify publication, it was a matter of which account could be taken in making a decision to publish."
"It could be, but there is an additional element to this, which is the charge against [the father] which has been levelled in relation to this case and previously, which is of recklessness. Self-evidently it is possible to have an extra marital affair and ensure that there is not a child. Extreme recklessness of this type was already on [the father's] record, as we all know. There was a previous affair which resulted in the lady concerned having an abortion. That caused him great personal and professional discomfort, and this story appeared to suggest that history in his case was repeating itself, which made explaining the child's part in the story and indeed demonstrating that the child looked an awful lot like [the father] very important."
"You suggest that the information that [the father] may have fathered a child as a result of the affair adds nothing to the pubic interest story of the affair. We do not agree. It is a telling fact about the character of [the father] that he may have fathered a child outside his own marriage, in the course of what appears to have been a casual affair with a woman who was, at that time, living with another man and that he has neither confirmed nor denied paternity of the child. It is also relevant to an assessment of his character that this is the second time that he has (or may have) caused a woman who was not his wife to become pregnant, with potentially serious consequences both for the woman concerned and his own wife and family. One may reasonably judge a man differently on these facts than one would if the story were simply one of a discrete, isolated affair which had not consequences for either party."
The fourth ground of appeal: the judge was wrong to hold that an injunction restraining publication of the private information would serve no useful purpose .
"129. As at the date of trial, a considerable amount of information regarding the claimant's mother's affair with the supposed father, the claimant's birth and her supposed paternity was in the public domain. The claimant's case is that all the articles which followed the first article were triggered by it. I do not regard the position as being so straight forward for the following reasons:
i) This was a story which was going to be published. If the defendant had not done it, another newspaper would;
ii) No one can stop the claimant's mother's ex-boyfriend speaking to the press;
iii) Following the first article, letters were written by solicitors on the claimant's behalf to media organisations including the defendant. No proceedings were issued until months later by which time numerous articles had been published upon the matter. No explanation has been given for the delay of nearly one year following the publication of the first article and service of proceedings upon the defendant. The trigger for the institution of proceedings appears to have been the republication of the photograph of the claimant accompanying the eighth article as this was perceived as a breach of the assurance/undertaking given by the defendant not to publish any photographs of the claimant. Of note is the fact that when the claimant's mother and litigation friend were asked about identified articles no issue was taken with the content of the articles. Significantly, the litigation friend used the word "permissible" to describe the content.
iv) The troubling matter of the claimant's mother's interview with the magazine. The claimant's mother had input into the editing of the final article which contained information about the claimant and speculation as to her paternity.
130. For the reasons stated I do not accept that all subsequent publications of this story went ahead by reason of the publication of the first article. If there had been a wish on the part of those acting on behalf of the claimant to prevent publication of similar articles, action could and should have been taken much earlier.
131. So much information is now in the public domain that an injunction to prevent any further publication upon this topic would serve no real purpose. That said, the defendant's undertaking not to publish any further photographs of the claimant save in certain circumstances can be accepted by the court and included in an order."
Conclusion
Lord Justice Tomlinson:
Lord Justice Ryder: