Axon v Ministry of Defence [2016]

In Axon v Ministry of Defence [2016] EWHC 787 (QB) (11 April 2016) the Claimant’s claim, issued in September 2014, was heard by Mr Justice Nicol as to whether the Claimant had a reasonable expectation of privacy and/or confidentiality in respect of the following matters:

  • The fact that members of his crew had complained about his conduct.
  • The fact that an Equal Opportunities Investigation (EOI) had been carried out into his conduct.
  • The fact that he had been ordered to leave the Ship whilst it was in Gibraltar and to return to the UK.
  • The outcome of the EOI, the fact that he was re-appointed and the fact and nature of any possible further administrative sanction against him.

In 2004 he was the commanding officer of a Royal Naval vessel and complaints had been made by junior officers of bullying. After an EOI the complaints were upheld.

On the 14th December 2004 The Sun newspaper published an article,

Mutiny on Gulf Warship: “Bully” Captain is kicked off’, then 15th December 2004,  ‘Crew Tell of Abuse: Two Officers Made Claims’ and 17th December 2004,  ‘Mutiny Skipper Sacked: Navy Warship Captain Guilty of Bullying’.

Following reassignment, the Commander in Chief of the Fleet on the 17th January 2005 delivered a censure to remain on his record for 5 years.  The Claimant resigned his commission in June 2007.

The Third Party Defendant, News Group Newspapers Ltd, the publisher of The Sun, disclosed that a person within the Ministry of Defence (MOD ) had been supplying them with information for around 8 years being paid about £100,000 and on the 21st December 2004, £5,000 for two stories concerning the Claimant.

The Civil Servant and the reporter were prosecuted for conspiracy to commit misconduct in public office, she was sentenced to 12 months imprisonment in January 2015 with the reporter acquitted by a jury in March 2015.

The parties agreed the issues as:

  • Did the Claimant have a reasonable expectation of confidence and/or privacy in the relevant information at the relevant time?
  • Did Ms Jordan-Barber of the MOD disclose the Claimant’s information to The Sun?
  • Did the disclosure of this information constitute a breach of confidence and/or misuse of private information and/or a breach of Article 8 of the ECHR?
  • Is the MOD vicariously liable for the acts of its employee?
  • Was any damage suffered by the Claimant caused as a result of the disclosure of the Claimant’s information by the Civil Servant?
  • Is the claim statute barred under the Limitation Act 1980?
  • Can the Claimant rely on Article 8 to the extent any of the damage is loss of reputation which is a foreseeable consequence of his own actions?
  • Was the Claimant’s claim for damage to reputation an abuse of process?
  • What is the appropriate quantum of damages.

Mr Justice Nicol observed that misuse of information had been incorporated into English law under Article 8 of the ECHR. In Campbell v MGN Ltd 2004, Lord Nicholls noted Article 8 gave respect to a person’s private and family life and Article 10 balanced it with the right to freedom of expression. Two questions arose, was Article 8 engaged by being within the complainant’s private and family life, was that interference justified.

Mr Justice Nicol stated the Claimant did not have a reasonable expectation of privacy in respect of the information about the bullying complaints, the investigation and its aftermath. He  had been in a very public position, his removal from his command could have been readily inferred from public facts, and the fact of his misconduct undermined any reasonable expectations of privacy.

“Misconduct is not just relevant to the balancing of interests under Articles 8 and 10 (Lord Nicholls’ second question in Campbell) but is also material as to whether the Claimant has a reasonable expectation of privacy in information about that conduct – see Axel Springer, In Re JR38 and Kinloch”

Those who complained of the Claimant’s bullying knew that they had been interviewed in connection with the EOI report. They were told in letters that their complaints had been upheld. Before that, however, they could infer from the Claimant’s sudden departure that the EOI had been critical of him. The Claimant had no reasonable expectation that the complainants would have kept quiet.

“it would have been quite acceptable for these officers to have told their parents what had happened to them and why. Commander Morris made the same point in his (agreed) witness statement.”

Mr Justice Nicol considered the Claimant could not bring a claim for breach of confidence. He could not show that the Civil Servant owed him a duty of confidentiality, aside from her security clearance, the MOD could have revealed the information if it so wished.  He referred to Fraser v Evans, the Claimant was a PR consultant for the Greek government and applied for an injunction to stop the Sunday Times publishing one of his reports, it failed as any confidence was owed to the Greek government, not to him.

Mr Justice Nicol, in this case, was examining whether the Claimant’s claim in confidence could be successful without having a reasonable expectation of privacy.   He considered the claim for breach of confidence did not assist the Claimant and Article 8 would not assist him in his claim for misuse of private information.

He summed up his findings and found the overall claim to be unsuccessful.

  • The Claimant did not have a reasonable expectation of privacy in respect of the information therefore his claim for misuse of private information failed
  • His claim for breach of confidence failed as the civil servant in the MOD did not owe him a duty of confidence
  • The Article 8 claim did not assist him

As to the other issues, he concluded that it was more than likely the Civil Servant disclosed the information to the reporter based on the admission by the Third Party they paid her £5,000.

Regarding disclosure of information by the Civil Servant and whether this constituted a breach, as the Claimant was not owed a duty of confidence by her there was no breach of his Article 8 rights.

As to vicarious liability, the Civil Servant was not acting on behalf of the MOD when she dealt with the newspaper but for financial gain. He observed her behaviour was both criminal and deliberate. In Joel v Morison the phrase was used ‘on a frolic of his own’.  He continued, she might be described as being on a frolic of her own when she dealt with the reporter, but, it has been established employers can be vicariously liable even though their employee’s tort had been criminal and disallowed within the workplace, for their own gain.

“As part of her work, she needed to have access to security sensitive and confidential information. As part of her work she shared office space ….and was likely to learn other information in consequence. There is always an inherent risk that those entrusted with such information will abuse the trust reposed in them, but rather than this being a reason why vicarious liability should not be imposed, I think, on the contrary, it is a reason in its favour.

True it is that Ms Jordan-Barber’s activity did nothing to further the MOD’s aims, it was carried on without their knowledge, and it received no encouragement from the MOD. What she did was prohibited. However, those features do not preclude vicarious liability….. Notwithstanding them, if I had held that Ms Jordan-Barber had committed a tort (contrary to my findings), I would have concluded that that hypothetical tort would have been sufficiently closely connected with her job for it to be just for the MOD to be vicariously liable.”

With regard to Causation of damage, he found it to be correct that, even if the Civil Servant had not leaked the story to the newspaper, the Claimant’s removal from the Navy vessel and the reason for it would still become public knowledge and he could not show

“the necessary causal links between the wrong on which he relies (even if it was otherwise maintainable) and the press publicity which caused the harm for which he seeks compensation”.

He discussed Limitation and noted the Claimant became aware of the Civil Servant’s role in April 2013 but did not issue the claim until 17 months later, therefore, an extension could not be granted.

His overall conclusion was that the Claimant did not have a reasonable expectation of privacy, the Civil Servant did not owe him a duty of confidence and his claim failed.  Further, since the Defendant was not liable to the Claimant, there could be no question of an indemnity by the Defendant.

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