AMC & Anor v News Group Newspapers Ltd [2015]

In AMC & Anor v News Group Newspapers Ltd [2015] EWHC 2361 (QB) (05 August 2015) the matter concerned an urgent application made by the Claimants’ Solicitors for an injunction to stop a newspaper story being published about the First Claimant. The application had been presented to Mrs Justice Elisabeth Laing’s clerk on the evening of Friday 31st July 2015. Her clerk also received a skeleton argument from the Defendants. On the next day, Saturday afternoon, Mrs Justice Laing held a telephone hearing, both sides were represented by leading Counsel. She agreed to hold the hearing in private and make an anonymity order.

The First Claimant, a well-known sportsman and his wife, the Second Claimant, had applied for an injunction against a story the Defendants wanted to publish regarding a relationship the First Claimant’s once had with a woman referred to as ‘ X ‘, who had written a story about it.

Mrs Justice Laing considered the rights conferred by the European Convention on Human Rights, in particular the Articles 8 rights of the Claimants and the Article 10 rights of ‘X’ and the Defendant. She observed that neither party had a burden to discharge and looked further at s.12 which she believed was applicable to this matter and also, the Court must be confident that the Claimants will more than likely succeed at the trial.

With regard to the Article 8 rights of the Claimants, Mrs Justice Laing considered that publication would interfere with the Second Claimant’s “right to respect for her home and family life”. She further observed that it was only because of the profession of the First Claimant and the subsequent endorsements he made as a result of his job that they were in the public eye not because they had sought publicity.

Mrs Justice Laing considered whether Article 8 was relevant in this matter for an injunction restraining publication. She continued that the First Claimant must demonstrate that he was entitled to a reasonable expectation of privacy and observed that in some cases such a relationship is not afforded the same protection as a permanent one but, she acknowledged that, whatever the relationship, it was protected by Article 8 “as a person’s sex life is a very important aspect of the interests protected by article 8”. She noted that from what she had read, the relationship was not a casual one and it had been conducted in secret. She also noted that X had not publicised the relationship at the time or afterwards.

Mrs Justice Laing observed that the First Claimant was a successful sportsman and because of this would hold a prominent position in public life with the consequences being that the Claimants would lose control of their private life. She did not consider that this should make “the entire history of that person’s sex life public property” just because he was a well-known sportsman and therefore in the public eye, this should not diminish his reasonable expectation of privacy concerning the relationship. Mrs Justice Laing continued, that he may be a role model within his sporting sphere but this should not make him an example within every other sphere. She noted the affair was conducted quietly years ago before his marriage and “is not obviously inconsistent with his public role, even if its conduct involved the breach of team rules”. She concluded that publication would interfere with both the Claimants Article 8 rights.

Mrs Justice Laing then considered Justification and observed that Article 8.2. was brought in to the matter. She questioned whether that interference was justified. She did not consider that freedom of the press was enough in itself to outrank the Claimants’ Article 8 rights. She considered that as most newspapers are run on a commercial basis for profit this would not lessen their Article 10 rights and that the public might find the details of the affair only interesting because of the salacious nature of the story which did not equate with it being of public interest. She noted that the public interest factor was that the First Claimant was perceived to be a role model and therefore had been a hypocrite by his behaviour.

Mrs Justice Laing continued “He denies that his conduct led to the breach of any rules. I cannot resolve that conflict at this stage. But even if I assume that he did break any rules, I do not see that there is any public interest in revealing this now, some years after the event”. The Defendants contention was that by having the affair he had not only deceived his wife but also his manager which Mrs Justice Laing observed, the First Claimant did not deny. She considered the matter concerning his wife was private and she could not see any public interest in the story being published years later. Further concerning the deception of his manager, she did not consider what happened years ago meant the First Claimant was a hypocrite or there would be any public interest to bring this matter out into the public domain.

Further arguments put forward were that the public thought of the First Claimant as being a ‘clean-living family man’ with X’s story about the affair exposing that but Mrs Justice Laing was not impressed with this argument. It was also argued that public interest also included conduct being exposed which is deemed as being socially harmful. Mrs Justice Laing considered that the First Claimant’s conduct had “caused private pain; but no-one was corrupted or co-erced” She continued by saying “In my judgment, few people, other than adherents to strict religious codes, could rationally consider that this conduct is so fundamentally inconsistent with being a role model of the kind which A1 is that there is a public interest in exposing it”.

With regard to ‘X’, Mrs Justice Laing did not understand the reasons given by her with regard to disclosing the information, that she was hurt by the hypocrisy shown by the First Claimant, which Mrs Justice Laing rejected.

In her conclusions, Mrs Justice Laing considered the interference with the First and Second Claimants Article 8 rights, as put forward by the Defendants and ‘X’, unjustified and referred to the case of McClaren v News Group Newspapers Limited 2012 “that decision is distinguishable, on two main grounds. First, the Claimant in that case was married at the material time, and second, he had, in the past, sold a similar story about himself to a newspaper”.

With regard to the Article 10 rights of the Defendant and ‘X’, Mrs Justice Laing considered that granting an order stopping the publication for a short time was proportionate in that the difference between what was known by the public and, if the story was published, would be enough of a gap to stop any further publication.

Mrs Justice Laing granted an injunction with an order for anonymity until Wednesday 5th August whereby Mr Justice Dingemans then recorded a very brief judgment with the parties agreeing orders with undertakings and directions for trial.

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