Mullen v Lyles [2025] EWHC 645 (KB)
Mullen v Lyles [2025] EWHC 645 (KB): Privacy, Defamation and the Misuse of Private Information
Factual Background and First-Instance Decision
This article provides a detailed legal analysis of the High Court’s ruling in Mullen v Lyles [2025] EWHC 645 (KB), a case that examines the boundary between defamation, privacy, and the tort of misuse of private information (MPI). For clients concerned about reputational harm or wrongful disclosure of private material, this judgment offers essential guidance.
Factual Background:
The dispute arose from events at the Houghton Festival in August 2022, where the claimant (Mr. Mullen) and defendant (Mr. Lyles) – formerly friends and business associates – were part of a close-knit group. According to the claimant, the festival atmosphere gave rise to a “free sexual environment” among the friends. Over the course of one night, the claimant engaged in consensual sexual interactions with a man and a woman in the group (anonymised in proceedings as “the Man” and “the Woman”). These acts, while intimate, took place in the view of the small friendship group and possibly a few other nearby festival-goers. All participants were adults and, on the claimant’s account, “all of [it] was consensual.” After the festival, the claimant and the Woman continued a friendly, sexualised correspondence, and the claimant also remained in contact with the defendant. Their business relationship soured soon thereafter – the claimant ended it in November 2022 – which led to an angry falling-out.
Alleged Publications:
In the wake of this acrimony, the defendant sent out communications accusing the claimant of sexual assault. Three publications (“P1”–“P3”) are at the heart of the case. P1 was a WhatsApp message (15 November 2022) sent by the defendant to a group chat that included the claimant and a mutual associate. In it, the defendant alleged that the claimant had “forcefully sexually assaulted” the Woman at the festival. The message named the Woman and Man and claimed there were four witnesses to the claimant’s behaviour. P2 and P3, both on 26 January 2023, were communications via Instagram (a message and a voice call, respectively) between the defendant and another of the claimant’s associates, in which the defendant repeated allegations that the claimant had sexually assaulted the Woman and the Man at the festival (P3 described it as “forcefully” so). These communications identified the Woman and Man by name as well. The defendant admitted sending P1 (while claiming it was meant only for the claimant’s eyes), denied sending P2, and contended that P3’s information came from a third party. Essentially, the defendant maintains that his statements of sexual assault were true, whereas the claimant says they are vicious falsehoods invented out of spite after their business relationship fell apart.
Procedural History:
The claimant sued on two causes of action, defamation (for the reputational harm of being falsely called a sexual assaulter) and misuse of private information (for the disclosure of highly sensitive, private sexual matters). The defendant applied to strike out both claims. At first instance, Deputy Master Marzec declined to strike out the defamation claim, allowing that cause to proceed to trial. However, she struck out the MPI claim, accepting the defendant’s arguments that the privacy cause of action was not viable on these facts. Anonymity orders were put in place to protect the identities of “the Man” and “the Woman” in reporting of the case. The defendant sought permission to appeal the refusal to strike out the defamation claim, but those efforts failed. The claimant, in turn, appealed the strike-out of his MPI claim to the High Court, which led to Fordham J’s judgment in Mullen v Lyles.
Deputy Master’s Reasoning:
The Deputy Master’s analysis “focused on truth and criminal conduct.” In essence, she treated it as a well-established principle that for MPI, the truth or falsity of the information is normally irrelevant, but then combined that with an example from case law suggesting that involvement in criminal activity is usually not protected as private. This reasoning led her to conclude that when someone is alleged to have committed a serious criminal offence (such as sexual assault), no reasonable expectation of privacy can arise in respect of that information if it is true; and if it is false, the proper remedy lies in defamation, not privacy. In her words, “[t]he fact that a person has committed a serious criminal offence is not generally a matter he or she is entitled to keep private”, and conversely if the allegation is false, the claimant “may well have a good claim in defamation, but he should not be permitted to use [MPI] to prohibit people…from disclosing accurate information as to criminal misconduct.”. The Deputy Master was clearly concerned that an MPI claim could be used to silence victims or witnesses of crime: “if [the Woman] has indeed been the victim of sexual assault…it would offend most people’s sense of what is right and would be an unjustifiable intrusion into her Article 10 rights to prevent her informing other people what had happened to her”, and “if other people had witnessed an assault, they should be able to report what they had witnessed freely”. In short, she reasoned that victims and witnesses must be free to report crimes without fear of a privacy lawsuit, and thus “an MPI claim cannot…be brought to complain about a communication of involvement in criminal activity.” On that logic, the claimant’s MPI claim – premised on allegations of sexual assault – was “bound to fail” and was struck out.
Fordham J’s task on appeal was to determine whether the strike-out was legally justified. As we shall see, the High Court disagreed with the Deputy Master’s approach. The appellate judgment reaffirms that the two-stage test for MPI claims must be applied flexibly and on the facts, and that even information implying criminal misconduct can attract privacy protection depending on context.
Legal Framework: MPI, ECHR Rights, and Strike-Out Principles
The tort of misuse of private information is a relatively modern cause of action, rooted in equitable breach of confidence but now firmly developed in line with human rights norms. It is “underpinned by human rights protection” in ECHR Article 8 (right to private and family life) and Article 10 (freedom of expression). The essence of an MPI claim is that the defendant misused information that was private to the claimant. Liability is assessed via a two-stage test established by case law such as Campbell v MGN and refined in later authorities. Stage 1 asks whether the claimant had a reasonable expectation of privacy in the relevant information. If yes, Stage 2 asks whether that privacy interest is outweighed by the defendant’s right to freedom of expression (often framed as a proportionality or balancing exercise between Article 8 and Article 10 rights). Only if the balance favours the claimant (privacy) will the claim succeed; otherwise, the publication is justified.
Notably, the Stage 1 inquiry is objective and fact-specific, considering “all the circumstances” often referred to as the “Murray factors” (from Murray v Express Newspapers): these include the nature of the information, the context and purpose of its release, the place it occurred, the claimant’s attributes, etc. Stage 2 is likewise a “fact-specific” analysis focusing on the particular circumstances and weighing the competing interests. Crucially, and this was central to Mullen v Lyles, English courts have made clear that at Stage 1 the question is whether the information is private, not whether it is true or false. As the Court of Appeal stated in McKennitt v Ash, “[t]he question in a case of misuse of private information is whether the information is private, not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected.” Likewise, the Supreme Court in ZXC v Bloomberg reaffirmed that the purpose of MPI is to protect privacy in accordance with Article 8 “whether the information is true or false.” In other words, MPI is not a defamation-lite; it “is not confined to” false information and a privacy claim is available even for true publications. Correspondingly, the fact that information is false does not exclude it from privacy protection (indeed, spreading false personal information can itself intrude upon one’s private life). These propositions underscore that truth or falsity is generally “not the point” at Stage 1 – a position the Deputy Master accepted in principle, but perhaps misconstrued in application, as discussed below.
Another important legal principle is the handling of MPI claims that overlap with defamation. There is no absolute bar to bringing parallel claims in libel and privacy for the same publication, as long as doing so is not an abuse of process. Abuse might arise if a claimant’s real aim (“nub” of the case) is to litigate falsity (reputation) but they plead MPI just to evade the stricter rules of defamation (for example, the rule against prior restraint of defamatory speech). Courts have warned that a privacy claim should not be used to “circumvent” defamation safeguards – especially at the interim injunction stage. In Mullen, however, the High Court noted that the Deputy Master did not find any such abuse or circumvention; the claimant was not improperly using MPI to do what only a libel claim should do. Indeed, the claimant was pursuing both MPI and defamation in tandem – a strategy implicitly permitted so long as each tort’s distinct elements are properly made out. Fordham J emphasised that while the Deputy Master pointed to defamation as “the answer” for false allegations of crime, she “identified no circumvention” and neither side argued abuse of process on appeal. Thus, the mere overlap with a false allegation did not preclude an MPI claim at this stage.
Finally, because this was an appeal from a strike-out (or summary judgment) decision, the court was bound by the well-settled procedural standard. A claim should only be struck out under CPR 3.4 (or disposed of summarily under CPR 24) if it is certain to fail, assuming the facts alleged by the claimant are true (i.e. taking the claimant’s case at its highest). No factual findings are made at this interlocutory stage; the court must not conduct a mini-trial. In Mullen, it was common ground that the Deputy Master had correctly stated this test. Thus, the High Court’s task was to assess whether, on the claimant’s version of events, the MPI claim was bound to fail – or whether, as the claimant argued, the claim had a real prospect of success that warranted a trial. With this framework in mind, we turn to the High Court’s analysis, structured around the four themes of truth, criminal conduct, sex-life, and conduct in public, and how each influenced the reasonable expectation of privacy and the ultimate balancing of rights.
Truth and Falsity: Is Privacy “Neutral” to Truth?
A central issue was whether the truth or falsity of the allegations affects the viability of an MPI claim. The Deputy Master had treated the canonical principle – that truth/falsity is irrelevant to privacy liability – almost as a rigid rule, and then reasoned that such a rule would lead to undesirable results (e.g. silencing truthful reports of crimes). Fordham J agreed with the principle but found that the first-instance judge misapplied it as an absolute, without the nuance the law requires.
At Stage 1 (reasonable expectation of privacy), it is indeed well-established that the nature of the information – not its accuracy – is what matters. Information about one’s health, personal relationships, or sexual activity is inherently private in character, “whether [the person] has or has not” the condition or engaged in the act in question. In other words, “truth and falsity are ‘not the point’” at Stage 1. Fordham J reiterated that “the truth of the information communicated is not, in and of itself, an answer to an MPI claim.” Even if a publication is entirely true, it can still violate privacy if it reveals private facts; conversely, a false statement can fall within the domain of one’s private life (for example, a false rumour about one’s sexual affairs is still about one’s private life). The judgment cites ZXC (where it was true the claimant was under criminal investigation, yet that truth “did not provide a defence” to his privacy claim) and Khuja v Times (noting MPI is “available even when the matters published are true” ). Thus, the Deputy Master’s starting “principle” was correct: whether information is private does not hinge on whether it is accurate.
However, as Fordham J explained, this principle should not be applied as an “all-embracing exclusionary rule.” The Deputy Master erred by extending the “truth is irrelevant” maxim too mechanically, including into Stage 2 and into scenarios involving criminality, without proper factual nuance. The High Court emphasised a key nuance: while truth generally does not matter at Stage 1, it can become relevant at Stage 2 (the balancing stage) or in assessing certain contextual factors. Indeed, McKennitt itself acknowledged that “at Stage 2 it may be relevant to decide the truth or falsity” of the information. For instance, a publisher who spreads false private information cannot invoke the same weighty Article 10 interest (e.g. public interest in the truth) as one who publishes true information – thus truth can affect the balance even though it does not determine privacy status at Stage 1. In Mullen, the Deputy Master’s concern was that treating truth as irrelevant would allow claimants to gag truthful reports of misconduct. Fordham J responded that the law does not, and should not, ignore truth entirely – rather, it postpones that question to the balancing exercise or to a full trial on the evidence. At a trial, if it turned out the claimant did commit a sexual assault, the Court would likely find that Article 10 outweighs Article 8 (for the reasons the Deputy Master gave about the public interest in victims speaking out). But that is a Stage 2 result following fact-finding, not a reason to deny a hearing altogether.
Moreover, the High Court highlighted the practical need for courts to ascertain certain facts even at Stage 1 if those facts affect whether an expectation of privacy is reasonable. For example, if it is disputed whether an act occurred in public or private, the court may need to determine that (at least on the evidence available) because it influences the Stage 1 analysis. A defendant should not be able to defeat a privacy claim at the outset by asserting a false scenario. As Fordham J put it, “a communication of false information cannot be permitted to prevent a true appreciation, still less dictate a false appreciation, of relevant circumstances.” In this case, the defendant’s messages claimed the incident was witnessed by multiple people in public – but the claimant’s case was that any sexual activity was within a small group and consensual. Thus, to properly evaluate privacy, the court must consider the claimant’s version (i.e. possibly a more private context) rather than accept the publication’s content at face value if it is alleged to be false.
In summary, the High Court reaffirmed the orthodox position: Stage 1 of MPI is concerned with the nature of the information (private or not) and is neutral as to truth, whereas Stage 2 may take truth/falsity into account when weighing privacy against expression. The Deputy Master’s legal error was treating truth as wholly irrelevant in a way that effectively short-circuited the analysis – she ended up reasoning that if the claimant did not do anything wrong, he had defamation to clear his name, and if he did do it, he had no privacy rights. This reasoning, however logical it seemed, rested on a fusion of principles that the law does not support at the strike-out stage. As Fordham J observed, the first-instance judge fused the “truth irrelevance” principle with a criminality exception and treated the combination as dispositive. That fusion was not a “legally sound starting point.” The correct approach is more nuanced, requiring careful consideration of the context (including whether the allegations are true or false) at the appropriate stage.
Information about Criminal Conduct: Public Policy and Privacy
The MPI claim in Mullen was unusual because it involved an allegation of serious criminal misconduct (sexual assault) which the claimant denied. This raised the question: can information suggesting someone committed a crime be private? Historically, textbooks like Gatley on Libel and Slander (12th ed., 2013) suggested that “involvement in current criminal activity” is not the kind of information one can reasonably expect to keep private. The Deputy Master leaned on this notion, treating it as an example of inherently non-private information. However, Fordham J noted that the law in this area has evolved – and is far from absolute.
Firstly, Gatley’s latest edition has revised its stance. The 13th edition (2022), updated after the ZXC case, no longer categorically lists “current criminal activity” as outside privacy’s scope. In fact, it now suggests that “involvement in criminal activity” may normally be regarded as giving rise to a privacy expectation, and it outlines two competing schools of thought. One view is that the public interest in exposing crime can justify publication (a Stage 2 justification); the other is that as a matter of public policy, criminals should not expect privacy for their deeds (a Stage 1 negation). The editors acknowledge this as “one of the most difficult questions” in modern privacy law. They also cite instances of “manifest criminality” – such as notorious public crimes – where privacy is clearly denied (e.g., a public riot).
Fordham J distilled three key points about criminal conduct information. First, it is “difficult to generalise” – context is everything, and one must be cautious in deciding at which stage (Stage 1 or Stage 2) public policy comes into play. Second, there is a difference between contemporaneous wrongdoing (caught “current” or in flagrante) and past or peripheral involvement, as well as between perpetrators on the one hand and victims or witnesses on the other. Third, cases about alleged criminal conduct vividly demonstrate why truth/falsity cannot be ignored. The two theoretical approaches (public interest vs. not private) both “presuppose the truth” of the misconduct. If someone is falsely accused of a crime, those rationales don’t neatly apply. As Fordham J observed, “[i]t cannot be the case that falsely asserting criminal conduct in a communication means an MPI claim then ‘disappears’.” To treat every allegation of a crime as non-private, even when untrue, would be perverse – it would immunise malicious falsehoods about crimes from privacy scrutiny. The court referenced Mosley v News Group Newspapers as instructive: in that case (which involved consensual sexual activities mischaracterised as criminal), the High Court had to determine whether any crime actually occurred (it did not) in order to properly judge the privacy claim. Mosley showed courts will examine if supposed criminal aspects are real or not, rather than blindly accepting a defendant’s portrayal.
It is the subject of much debate whether genuine criminal acts are ever private. The judgment highlighted extreme scenarios where courts found no privacy right at Stage 1 – effectively the paradigm cases of public criminal conduct: a televised armed siege, carrying a bag of stolen money in public, participating in a street riot. In those cases (ZXC’s hypothetical, Kinloch, and In re JR38 respectively), individuals engaged in crime in a very public manner could “hardly claim a reasonable expectation of privacy”. Warby J in Sicri (cited in Mullen) likewise gave examples of “very ‘public’ criminal conduct” that would negate privacy: openly carrying ill-gotten gains, or rioting in public . These are “striking examples” – instances of “paraded criminality” where privacy plainly does not apply. However, Fordham J drew an important inference: the fact that such extreme examples are invoked “would not be needed if the same were true of all communications of all information about all observed criminal conduct.” In other words, not every allegation of criminal behaviour strips the subject of privacy; it is only obvious, egregious cases that clearly fail Stage 1 and especially not when the information is false. The Kinloch example even included a caveat – the Supreme Court noted the conduct was criminal “if that is what it was found to be” – reinforcing again that a finding of criminality (truth) was assumed in denying privacy.
Applying these principles to Mullen: The Deputy Master relied on the old Gatley notion that current criminal conduct carries no expectation of privacy. She then reasoned that if victims/witnesses must be able to talk freely, it follows no MPI claim should arise for info about a crime. This logic, however, skipped over the critical distinction between true criminal conduct and alleged conduct. Fordham J identified this as a “material legal error”. By starting from a “superseded textbook example” and treating it rigidly in combination with truth irrelevance, the Deputy Master reached a “generalised adverse conclusion” that was not compelled by law. The High Court held that one must adopt a nuanced approach to privacy claims involving crime. The nuances here include: the claimant was not actually a convicted or admitted criminal; the alleged acts occurred in a quasi-private group setting; and the information’s truth was hotly contested. Far from being a Kinloch or JR38 scenario of public criminality, this case was shrouded in factual dispute. Thus, it was wrong to say categorically that MPI had no role. Instead, the claim deserved a full factual inquiry. If at trial it were proven that the claimant did commit the assaults, the publication might be vindicated under Article 10. However, if the claimant’s version (no assault, consensual activity) were believed, then the defendant would have disclosed intimate private conduct under false pretenses – a classic privacy violation alongside the defamation.
In summary, information alleging criminal conduct may or may not attract privacy – it depends on context. Public policy strongly favours allowing people to report true crimes (and the court in Mullen was mindful not to discourage that), but public policy also favours not ruining someone’s life with false accusations. The correct legal framework can accommodate both: by requiring a careful Stage 1 and Stage 2 analysis rather than a blanket rule. Fordham J’s judgment steers the law back toward that careful analysis, making clear that the privacy tort does not automatically “disappear” merely because the information alleges wrongdoing. Each case must be judged on its facts. The High Court thus rejected the notion that MPI could never apply in “serious misconduct” cases; instead, it emphasised the need to consider the truth, context, and manner of the disclosure on a case-by-case basis at trial.
Sex Life and Privacy: Intimate Information as “High-Order” Private Matter
The appellate court also gave special attention to the sexual nature of the information at issue. While the Deputy Master’s reasoning downplayed this (since her focus was on the criminal aspect), the claimant’s counsel on appeal stressed that the case was fundamentally about sexual life, which is one of the most private domains. Fordham J agreed that an individual’s sex life is “high-order private information.” Courts have long recognised sexual intimacy as part of one’s core private life. In the taxonomy given in Gatley and other authorities, information about “personal relationships” and “intimate details of personal relationships” is paradigmatically private. Indeed, dozens of privacy cases have involved disclosure of sexual matters (ranging from extramarital affairs to private sexual practices), and generally such information meets Stage 1 – it is considered “no one else’s business” absent some countervailing interest .
Fordham J cited Mosley v NGN (2008) as a leading example of a “sex-life case.” In Mosley, which concerned a newspaper exposing the claimant’s consensual BDSM activities, the High Court affirmed that “people’s sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.”. This principle encapsulates the strong expectation of privacy for consensual sexual activity among adults. The Mullen claimant’s factual case falls squarely within Mosley’s protective scope: he described consenting sexual interactions among adults, with no one underage or non-consenting. By that measure, the subject matter (consensual sexual encounters) was classic private life material. The High Court noted that Mosley had also grappled with arguments of criminality (the newspaper had tried to characterise the acts as possibly criminal, e.g. assault or “Nazi theme” hate crime), but the court found no crime and upheld Mr. Mosley’s privacy. Mullen similarly required scrutinising whether the “criminal” label was actually warranted or a smokescreen.
Another relevant authority mentioned was PQR v Quigley (2008). In PQR, the claimant obtained an injunction against a defendant who threatened to publish “fictitious sexual activities” about the claimant. Notably, that was a case of false private information (essentially a blackmail or harassment scenario with invented sexual allegations), yet the court granted relief in misuse of private information. This directly undermines any notion that MPI can only protect truthful private facts – even knowingly false sexual accusations were treated as falling within the claimant’s private life (since they purport to reveal intimate matters). PQR was cited to reinforce that falsehood is no bar when the category is inherently private (here, sex life). Thus, the appellate court in Mullen saw the sexual dimension as bolstering the claimant’s case that the information was prima facie protected at Stage 1, regardless of truth.
The defendant’s counter-argument (in his cross-appeal, discussed more below) was that the claimant had effectively “flaunted” his sex life in public by engaging in sexual acts in a semi-public festival setting, thereby diluting any privacy. Mr. Lyles argued that by failing to keep the encounters fully hidden, the claimant impliedly consented to others talking about them. Fordham J treated such assertions with skepticism, noting they were contentious and fact-dependent. The claimant’s view was that these interactions occurred in what he believed to be a safe space among friends – essentially a private bubble within the festival. The Court held that whether one’s actions constituted “flaunting” or remained within a private sphere is a matter for the trial judge to decide after hearing evidence. It is not obvious that consensual activity among a small group – even if a few others incidentally saw – amounts to waiving one’s privacy rights. Indeed, case law suggests that even some sexual activities that occur outside a home can still be private. For example, PJS v News Group Newspapers (2016) involved a story about a celebrity’s consensual sexual encounter that occurred privately (though not in his own home), and the Supreme Court granted a privacy injunction, emphasising that “purely private sexual encounters” are presumptively entitled to privacy protection. In PJS, as Fordham J noted, the court warned against drawing an “artificial line” between what is private and what is public in sexual matters – intimate relations can occur in a range of settings (even “a car in a secluded spot”) and each case must be considered on its facts. The mere fact of being outdoors or not behind locked doors does not automatically erase privacy, especially if steps were taken to be discreet or the audience was limited. Another case, Theakston v MGN Ltd (2002), concerning a celebrity who visited a brothel (a setting with an arguable public element), wrestled with where to draw the line; Fordham J pointed out that the Theakston outcome – which denied privacy for the brothel visit – has been critiqued by commentators and was fact-specific. Subsequent authority (e.g. Mosley) has leaned towards giving privacy to sexual conduct except where truly in public view of strangers.
In Mullen, the sexual acts took place at night in tents among friends – arguably closer to the “secluded spot” end of the spectrum than the “paraded in public” end. Thus, treating the claimant’s sex life as highly private was justified at least to find a prima facie reasonable expectation of privacy. The High Court stressed that sexual activity “in private” is a “prime candidate” for protection and that typically “anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults.” While Fordham J noted the phrase “especially if” (on private property) rather than “only if,” implying that even if not on strictly private property, one can still have an expectation of privacy. The bottom line is that the sexual nature of the information strongly favoured the claimant at Stage 1. It was exactly the kind of intimate personal information Article 8 is meant to protect. The Deputy Master’s focus on the criminal aspect had arguably overshadowed this point, but on appeal it was re-centered: sex-life information, even alleged in a negative context, does not lose its private character.
Conduct in Public: The “Zone of Privacy” in Public Settings
The fourth element – the extent to which the events occurred in public – was pressed by the defendant as a standalone reason the privacy claim should fail. After the Deputy Master’s strike-out was challenged, Mr. Lyles (via Mr. Fox, counsel) advanced a “cross-appeal” argument: even ignoring the truth/crime issue, the claimant’s own behaviour was so public and unrestrained that he could have no reasonable expectation of privacy. This argument essentially reframed the case as one of implied consent and lack of confidentiality, due to the public setting. Fordham J carefully analysed and ultimately rejected this position, but it’s instructive to see why.
In general, whether something happens in a public or private place is undoubtedly a factor in the Stage 1 analysis – known as one of the “Murray factors”, “the place at which [the activity] was happening.” Information about activities in a public location is less likely to be considered private. For instance, being photographed on a public street is usually not private (absent special circumstances). In Sicri, cited in Mullen, the court noted there was “nothing public” about an arrest that took place in a private aircraft cockpit, whereas a passenger’s arrest in the public passenger cabin in front of others was inherently public. However – and this is crucial – the law recognises “there is not necessarily a bright-line distinction” between public and private domains. Even in a public context, certain interactions may fall within a “zone of interaction with others” that remains private. As the Supreme Court observed in ZXC, one can have an expectation of privacy in certain dealings with others even if they occur in public view. Classic examples are moments of personal grief or trauma in public: e.g. a person crying at a funeral in public view, or a suicide attempt on a public bridge at night – such scenes, though in public, engage that person’s private life and courts have treated them as potentially private for Article 8 purposes. In short, context and reasonable expectations matter; it’s not as simple as “outdoors means no privacy.”
Turning to the festival scenario in Mullen: Mr. Fox argued that the claimant’s acts took place in crowded, public venues at the festival with “15 or more people watching, perhaps dozens,” and that the claimant was “positively flaunting” his behaviour. He contended the claimant did nothing to keep it private and thus impliedly allowed his sexual conduct to become public domain. Moreover, the defence framed the defendant’s communications as mere “indignant warning” to a small circle (two people) about objectionable public conduct, rather than salacious gossip. They even suggested the claimant consented to the risk of disclosure by acting so openly. This was a bold attempt to cast the facts in the defendant’s favour for privacy purposes.
Fordham J dismantled this “conduct in public” argument on multiple grounds. He identified several “insurmountable difficulties” with the defendant’s analysis. First, it was incomplete: it ignored or downplayed key aspects of the claimant’s case (which must be taken at its highest at this stage). The defendant’s narrative left out that this was among a private friendship group in a free, consensual atmosphere, that the defendant himself was part of that group and knew no assault occurred, and that the defendant’s publications were sent maliciously to the claimant’s business colleagues after a falling-out. All those circumstances — trust within a friend group, lack of genuine victimhood, malicious motive — are highly relevant to whether a privacy claim has merit, yet the “public conduct” theory swept them aside.
Secondly, the defence argument was heavily disputed on the facts: it painted the claimant’s behaviour in a pejorative light (“flaunting” in “crowded” areas) that the claimant did not concede. It assumed a level of public exposure (“15 or more” onlookers) that was not established – the claimant might testify that only a handful of friends were actually present, etc. It also leapt to the conclusion of “implied consent” to any subsequent dissemination, even to allegations of assault, which is far from self-evident. The court noted these characterisations would require factual findings (How public was it? Did the claimant expect confidentiality among friends?) that could only be made at trial after hearing evidence. For instance, if the same intimate acts had occurred back at the defendant’s house (private property) or “behind a hedge” at the festival, even the defendant’s counsel conceded a privacy claim could exist. The spectrum of privacy in a festival context is not all-or-nothing – a secluded tent at night among a known group might carry a different expectation than, say, a stage demonstration in front of a large crowd. Here, it was premature to decide that spectrum without full evidence.
Thirdly, Fordham J held the defendant was effectively asking the court to draw a “pre-trial public/private bright line” which is not justified. Determining whether an event was sufficiently private is a fact-sensitive exercise; doing so summarily risks error. The judge was “not persuaded…that there is a reliable dividing line” on these facts that would make the MPI claim inevitably fail. In particular, the defence’s reliance on the criminal offence of outraging public decency (arguing that even if no assault, the claimant’s conduct was itself a crime of public indecency) was speculative and problematic. It essentially attempted to reframe the consensual acts as a different crime, which “rewrites the communicated information” (the defendant never accused the claimant of public indecency per se) and would ironically implicate the supposedly “victimised” Man and Woman as well (since they participated). The High Court gave this short shrift, noting it “begs more questions than it answers.”
In summary the public setting of the festival was a factor to weigh, but not decisive at the strike-out stage. There remained a plausible “zone of privacy” argument for the claimant – i.e., that within the chaos of a music festival, a small, tented interlude among friends was reasonably expected to remain private. The law, as noted, even allows that some activities in public view can be private in nature. Fordham J concluded that it would require a “solid platform” of fact-finding at trial to decide exactly where this case fell on the public-private continuum. Therefore, it was wrong to shut down the claim on the assumption that the claimant had no privacy interest at all. The High Court decisively rejected the cross-appeal: “I am quite sure that what this case needs is for the Stage 1 fact-specific inquiry to be undertaken in the light of the evidence… The same is true of Stage 2, if it is reached. I am unable to say that – taken at its highest – the MPI claim is bound to fail.”
In doing so, Fordham J also reminded us that the Stage 1 test itself inherently asks what a reasonable person would feel in the claimant’s position facing that publicity. It is easy to empathise that most people would feel aggrieved if intimate sexual encounters among friends were broadcast as allegations of assault to others – even if those encounters were not behind closed doors. That intuition buttresses the decision to let a trial judge hear the evidence and weigh all these subtleties, rather than striking out the claim prematurely.
Appellate Outcome and Guidance for Future Cases
After this thorough analysis, the High Court allowed the claimant’s appeal and reinstated the MPI claim, while dismissing the defendant’s cross-appeal contentions. In practical terms, this means Mr. Mullen’s misuse of private information claim will proceed to trial alongside his defamation claim. Fordham J’s judgment ensures that a trial judge will determine, on evidence, whether Mr. Mullen had a reasonable expectation of privacy in the information conveyed by Mr. Lyles and, if so, whether Mr. Lyles’ Article 10 rights nonetheless justify his communications. The appellate court made no findings of fact about what “really” happened at the festival – it simply held that the claimant’s case is legally sufficient to be heard.
Importance of Pleading Practice (CPR 53PD 8.1):
A practical takeaway is the importance of properly pleading MPI claims under the new Media and Communications list practice rules. CPR Practice Direction 53B 8.1 specifies particular details that must be included in a privacy claim (such as the precise private information, the circumstances giving rise to an expectation of privacy, and the nature of the misuse). In Mullen, the claimant’s original Particulars of Claim was found wanting – it “did not properly specify the matters required by 8.1”. Neither the defendant nor the Deputy Master initially made this a strike-out issue, but both the Deputy Master and the High Court on appeal noted the defect. Collins Rice J, when granting permission to appeal, even warned that the claimant would need to address this at the appeal hearing. At the appeal, claimant’s counsel hastily produced a draft amended pleading to try to cure the defects. Fordham J was critical of the delay – “[t]here should have been an illustrative redraft… in good time” – and found the late draft still “materially incomplete.” Notably, the claimant’s team had failed to include in the pleading certain points (like the “safe space with friends” context) that actually bolstered the privacy claim and were mentioned in evidence. Ultimately, the High Court allowed the appeal to proceed on the legal merits, but it ordered that the Particulars of Claim be properly amended (and gave permission for that amendment). The message to practitioners is clear: comply with PD53B 8.1. A claimant must clearly articulate: what information is alleged to be private, why it is private (the circumstances giving rise to privacy), how it was misused (e.g. in what publications), and the nature of the intrusion or harm. Had the defendant pressed this point earlier, the MPI claim might have been temporarily derailed on technical grounds. The courts are willing to permit amendments to get things in order (as seen by permission to amend in this case ), but judges will not be impressed by slapdash pleadings. For future MPI litigation, Mullen underscores that precise pleading is not optional – it is mandated, and claimants should draft with meticulous attention to PD53’s requirements to avoid unnecessary complications or costs arguments. (Indeed, in Mullen, the defendant tried to argue on appeal that the claimant’s victory should be negated by his pleading failures, but the High Court firmly rejected leaving the costs burden on the claimant for that reason.)
Strike-Outs in MPI Cases Will Be Rare:
This decision signals that courts should be cautious in striking out MPI claims where the facts are in dispute. Privacy cases are often highly fact-sensitive, and Mullen reinforces that a court should not short-circuit the two-stage analysis unless it is absolutely clear the claim cannot meet the threshold. Fordham J essentially held that if there is any plausible view of the facts that gives rise to a privacy interest, the case should go to trial: “I am unable to say that – taken at its highest – the MPI claim is bound to fail.” Especially in cases involving contested allegations (like whether something was consensual or witnessed by many), the benefit of the doubt goes to the claimant’s account at the interlocutory stage. Going forward, defendants should think carefully before attempting to strike out an MPI claim. Unless the scenario is one of those “paradigm examples” (e.g. a claimant caught red-handed in a widely-broadcast crime) where no privacy right could possibly arise, a strike-out will likely be refused. Conversely, claimants can take comfort that courts will give them their day in court if their claim is arguable on the facts. The case exemplifies judicial reluctance to decide novel or borderline privacy issues without full evidence.
Balancing Article 8 and 10:
Although Mullen was decided at a preliminary stage, it offers a window into how the balancing might go at trial. Fordham J’s analysis implies that if Mr. Lyles’s accusations were true (i.e. the claimant did commit sexual assaults), his Article 10 right to inform and warn others would probably outweigh the claimant’s Article 8 (since preventing a victim from speaking would “offend…what is right”). On the other hand, if the assaults are untrue and it was consensual, then the defendant had no legitimate justification to spread these intimate details, tipping the balance to Article 8. Notably, even if one views the claimant’s public sexual behaviour as unseemly, that does not automatically give anyone licence to mischaracterise it and broadcast it. The balancing exercise would factor in the motive and purpose of the disclosure: here the claimant alleges it was done maliciously to harm his reputation, not to protect others. Thus, Mullen illustrates that the ultimate outcome of an MPI claim can pivot on the truth of the allegations – but via the Stage 2 balancing, not Stage 1. This is a subtle but important point for future cases: a privacy claim is not a way to gag truthful speech in the public interest (since truth and public interest will win out at Stage 2), but nor can a defendant escape privacy liability for harmful falsehoods by simply labeling them as matters of public concern. The court will carefully weigh the actual circumstances and merits of publication.
At Carruthers Law, we specialise in defamation and privacy claims across England and Wales. If you are facing reputational damage or unlawful disclosure of private matters, call us today on 0151 541 2040 or email info@carruthers-law.co.uk to discuss your case in confidence.