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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Browne v Associated Newspapers Ltd  EWHC 202 (QB) (09 February 2007)
Cite as:  EWHC 202 (QB),  EMLR 515
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Lord Browne of Madingley
|- and -
|Associated Newspapers Ltd
Victoria Sharp QC and Aidan Eardley (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 23 January 2007
Crown Copyright ©
The Hon. Mr Justice Eady :
" that if needed, [he] would assist in the first year of me transitioning from living in multi-million pound homes around the world, flying in private jets, five star hotels, £2,000 suits, and so on to a less than modest life in Canada".
"I do not want to embarrass you in any way but I am becoming concerned by your lack of response to my myriad attempts at communication".
The need for an injunction
i) Whether a prima facie duty of confidence would arise in respect of each of them by virtue of the fact of the relationship;
ii) Whether the information is such that there would, in any event, arise a "reasonable expectation of privacy", so as to engage the Claimant's Article 8 rights;
iii) If so, whether in any event the information was to a significant extent in the public domain already;
iv) Whether there is a public interest in any of the information, sufficient to justify publication even if the law would otherwise afford the Claimant protection;
v) If it is defamatory, whether the Bonnard v Perryman principle should come into play so as to preclude injunctive relief in respect of any particular allegation;
vi) Whether, in other respects, the Defendant's Article 10 rights should be given priority over any right of privacy or confidence to which the Claimant might otherwise be prima facie entitled;
vii) Whether, in the light of s.12 of the Human Rights Act 1998, the Claimant is "likely" in respect of any or all of the categories to succeed in obtaining a permanent injunction at trial.
It is obvious that these questions overlap in significant respects.
The relevance of the Claimant's lie to the court
i) It may be enough to justify the injunction being discharged.
ii) It may be that it should be addressed as contempt or as some other form of criminal offence.
iii) It is potentially relevant as undermining the Claimant's credibility and thus to the issue of whether he is able to persuade me that he is likely to succeed on the merits at a trial.
The categories of information originally sought to be protected
i) Business plans and ideas or potential business plans and ideas of the Claimant or any company with which the Claimant is or has been involved including BP where the Claimant is currently Group Chief Executive;
ii) The Claimant's relationships with colleagues at BP;
iii) Discussions about business ideas between the Claimant and Gordon Brown, the Chancellor of the Exchequer;
iv) Discussions at private and/or confidential meetings or dinner between the Claimant and Tony Blair, Peter Mandelson and others;
v) The Claimant's personal relationships with any other individual or individuals;
vi) Information relating to the Claimant's private investments and properties for example the purported information that:a) The Claimant discussed with the government/Tony Blair/Gordon Brown the prospect of BP potentially taking an important strategic decision.b) The Claimant discussed with Gordon Brown the possibility of a scheme for the benefit of BP's customers and Gordon Brown opposed the idea.c) There was a dinner with the Claimant and Tony Blair which a woman called Ms Hunter had organised on 8 June 2005 and at that dinner Tony Blair discussed life after government and aspects of his own character.d) There was another dinner with the Claimant, Mr Chevalier, Ms Hunter, Peter Mandelson and the latter's Brazilian boyfriend at the time (referred to as "Reinaldo"), which was held at one of the Claimant's homes, and at which they discussed European Union policy and Chinese textile quotas.e) There was another dinner with Peter Mandelson at which Mr Chevalier was present, but Peter Mandelson's boyfriend was not, at which Peter Mandelson made certain observations.f) Allegations about remarks supposedly made by the Claimant about colleagues in BP.g) The Claimant bought a flat in Venice several years ago and used the same agent to buy it as had Mr and Mrs David Beckham. Builders who had conducted renovation works presented him with two bills, one of which did not include VAT. The Claimant allegedly paid cash for that bill and "dodged" his tax bill (strongly denied by him).h) [The circumstances in which the Claimant and Mr Chevalier met]i) The Claimant did not wish certain aspects of his private life to be revealed as he thinks it will reflect badly on BP and its brand.j) Mr Chevalier and the Claimant had a dispute about certain valuable items of personal property following their break up.k) The Claimant paid for Mr Chevalier's studies at university.l) The Claimant paid Mr Chevalier a large sum of money over a four year period.m) The Claimant and Mr Chevalier stayed at a well known entertainer's flat in Venice in 2005.n) While he was watching a programme on television, the Claimant jumped up and made an observation about his personal investment strategy.o) On the two occasions when the Claimant visited Colonel Gadaffi in Libya he was accompanied by a secret service agent or a former secret service agent.
The allegations which the newspaper now wishes to publish
a) The allegation about BP strategy being discussed with a third party.
b) The alleged misuse of BP's resources and manpower to support or assist Mr Chevalier:
i) Mr Chevalier's personal use, with the Claimant's knowledge and permission, of BP computers, and of its support staff.
ii) The involvement of BP's personnel in setting up and eventually winding up a company created by the Claimant for Mr Chevalier to run.
iii) The use of a senior BP employee to run a personal errand for the Claimant by delivering cash to Mr Chevalier.
c) The bare fact of the past relationship between Mr Chevalier and the Claimant.
d) The alleged breach of confidentiality by the Claimant in discussing with Mr Chevalier confidential BP matters and showing him confidential BP documents (the newspaper would wish to identify such matters generally, by reference to the documents and topics discussed, rather than revealing the detail).
e) The Claimant's relationships with colleagues in BP.
The possible impact of Bonnard v Perryman
" Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Article 10 and any countervailing convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal".
"It may be legitimate to bring a misuse of private information claim in respect of information which the Claimant claims is substantially false, but in such a case an interim injunction will not be granted if:
a) the claimant's essential concern is to protect his reputation and the defendant indicates that he intends to prove that the information is true; and/or
b) truth or falsity is a material issue in the case (for example because, as here, the claim is made that the information is false in order to undermine an anticipated defence that publication would be in the public interest) and the court is unable to conclude what will probably be established at trial on this issue. In that case, a claimant is simply unable to satisfy the court that he will probably succeed at trial, and therefore fails to surmount the threshold for the grant of interim relief laid down in s.12(3) of the Human Rights Act 1998".
"The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years ever since Bonnard v Perryman. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out. As the court said in that case
'The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done'
There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication."
"If it could be shown that a claim in breach of confidence was brought where the nub of the case was a complaint of falsity of the allegations, and that was done in order to avoid the rules of the tort of defamation, then objections could be raised in terms of abuse of process. That might be so at the interlocutory stage in an attempt to avoid the rule in Bonnard v Perryman: "
Miss Sharp boldly submits that Buxton LJ was "wrong" to speak in terms of abuse of process, since that view would not accord (she submits) with the decision of another constitution of the Court of Appeal in Joyce v Sengupta  1 WLR 337 (not referred to in McKennitt). I need not comment on that point, but what emerges clearly is that one cannot obtain an easier route to an injunction preventing publication, where the gravamen of the complaint is as to reputation, by merely choosing another cause of action: see also Service Corporation International v Channel Four Television  EMLR 83, 89-90, Lightman J. As will emerge shortly, this issue is not critical to my determination on the facts of the present case.
Assessing conflicts of fact in the context of "public interest"
"With some hesitation I too agree that the appellant is entitled to have that factual issue decided by a jury. I hesitate in reaching this conclusion because, in common with the judge below, I regard the claimant's case on the facts as singularly unconvincing and as highly likely to fail at trial. All the probabilities appear to me to favour the respondents.
All that said, I do not think that the court's r.24 power properly extends to denying a claimant the chance of persuading a jury, albeit against all the odds, that his account of a meeting is the truth and his adversary's is not. Were the jury in this case actually to find for the claimant I do not think that this court could then strike down their verdict as perverse; and that, as I believe, is the touchstone by which the r.24 power falls to be exercised in a case like this, in which the defendants admit having made the defamatory statement, and in which the burden of proving justification, namely, on the facts of this case, that the alleged threats were uttered, accordingly lies on them".
Of course, the context of summary judgment under Part 24 is quite distinct from the present. Nor will there be a jury if the present case comes to trial. Even so, when one comes to make an assessment of the merits of the case at the interlocutory stage, for the purposes of s.12 of the 1998 Act, in order to determine whether or not a permanent injunction is "likely" to be granted at trial, it is right to have in mind that it is difficult to make a proper assessment on incomplete evidence and, also, that matters can look quite different when the issues come to be fully canvassed.
The relevance of Article 8 to conduct in business or professional life
"12.17 We are satisfied that it would be possible to define a statutory tort of infringement of privacy. This would specifically relate to the publication of personal information (including photographs). Personal information could be defined in terms of an individual's personal life, that is to say, those aspects of life which reasonable members of society would respect as being such that an individual is ordinarily entitled to keep them to himself, whether or not they relate to his mind or body, to his home, to his family, to other personal relationships, or to his correspondence or documents.
12.18 We would not see any advantage in laying down a more detailed definition of personal information on the face of any statute. The courts could develop their interpretation on a case by case basis. We would, however, see merit in specifically excluding any material:
(a) concerning any company or other corporate entity, or any form of partnership; or
(b) concerning an individual in relation to his conduct in the way of any trade, business, calling or profession, or in relation to his carrying out of any functions or duties attaching to, or to his suitability for, any office or employment (including elective office); or
(c) required by law to be registered, recorded or otherwise available for inspection".
i) Neither article has, as such, precedence over the other.
ii) Where conflict arises between the values under Articles 8 and 10, and "intense focus" is necessary on the comparative importance of the specific rights being claimed in the individual case.
iii) The court must take into account the justifications for interfering with or restricting each right.
iv) So too, the proportionality test much be applied to each.
The "business" issues in the present case
Applying the "new methodology" to the facts
a) The allegations about a potential BP strategy discussed with a third party
b) The alleged misuse of BP's resources and manpower to support or assist Mr Chevalier
c) The bare fact of the relationship
"The Claimant, realising that my clothing was not formal enough for being in public with him, took me to the Venice Prada shop to buy me more formal wear. He would continue to buy me an array of clothing so that I could be presentable once he began to introduce me to his friends and acquaintances".
d) The alleged breach of confidentiality in revealing corporate information and documents to Mr Chevalier
e) The Claimant's relationships with colleagues in BP:
The other categories covered by the 6 January order
Should I refuse relief because of the lie?