PJS v News Group Newspapers Ltd [2016] UKSC 26

In PJS v News Group Newspapers Ltd [2016] UKSC 26 (19 May 2016). The Claimant and his spouse are well known in the entertainment business and have young children.  The Claimant met AB around 2007 and from about 2009 they occasionally had sex.  AB was in a relationship with CD and after a request from the Claimant, they entered into a three way sexual relationship.  After that, the sexual relationship between the Claimant and AB ended but they remained friendly.

The Claimant was notified by the Defendant publishers that the editor of the Sun on Sunday was going to publish a story of AB’s account of the relationship following which the Claimant issued proceedings claiming that publishing the story would breach his right to privacy and confidentiality in accordance with Article 8 of the ECHR and applied for an interim injunction to stop publication.

The Judge refused the application for an interim injunction, he rejected the Defendant’s first line of defence but accepted the second line. He did grant permission to appeal with an interim injunction stopping publication for seven days to allow the appeal.

Lord Justice Jackson in the Court of Appeal considered whether the Claimant was entitled to an interim injunction. He made reference to the case of AAA v Associated Newspapers Ltd (2013) where, in such cases, the role of the court of Appeal is described:

  • “It is now clearly established that a balancing exercise between articles 8 and 10 of the European Convention on Human Rights (‘the ECHR’) conducted by a first instance judge is treated as analogous to the exercise of a discretion. Accordingly, an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach…”

He noted that if the case came to trial the Claimant would likely prove that the publication should not be allowed and had satisfied the test in s.12(3) of the Human Rights Act.   With the agreement of Lady Justice King, he allowed the Claimant’s appeal.  He granted an interim injunction against the Defendant publishing the story, until trial or further order.

The Defendant publishers applied to the Court of Appeal on the 12th April 2016 to set aside the interim injunction stating that since the information was already in the public domain having appeared in stories published in the United States, Canada and Scotland and published on other website and social media the interim injunction could not be justified as the Claimant was unlikely to be granted a permanent injunction.

On the 18th April 2016, the Court of Appeal found that the injunction should be discharged which the Supreme Court reinstated pending the Claimant’s application for permission to appeal, to be heard at the same time as the appeal.

The Supreme Court unanimously granted permission to appeal by 4 to 1 with Lord Mance delivering the leading judgment and Lord Toulson, who disagreed, delivering a dissenting judgment.

The Supreme Court found that the Court of Appeal had erred in law with its reasoning that s12 of the Human Rights Act had enhanced and given weight to Article 10 rights in the balancing exercise. Lord Mance observed that neither Article 8 or Article 10 in case law have preference over the other and

  • “where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied”.

Lord Mance also found the Court of Appeal had erred where it had made reference to “limited public interest”. He commented, In its earlier judgment it had held there was none and in the legal sense there are none, there is not any public interest in private sexual encounters being disclosed, no matter how famous the person,  even if they do include infidelity and more than one person.

Lord Mance considered it essential to distinguish between the claims of breach of privacy and breach of confidence. He observed that because of the widespread coverage of the information within the public domain, the Claimant could face problems in obtaining a permanent injunction as to claims of confidentiality but, in respect of a claim for privacy, any additional disclosures leading to further distress for the Claimant and his family including any harassment and intrusion made the claim for privacy very relevant.

Lord Mance considered whether the injunction could still serve a useful purpose and referred to the case of CTB v NGN Ltd 2011 where there were some similarities to this matter and it was found that the injunction was still serving a useful purpose.  In this matter he considered that

  • “the Court of Appeal focused too narrowly on the disclosures already made on the internet, and did not give due weight to the qualitative difference in intrusiveness and distress likely to be involved in what is now proposed by way of unrestricted publication by the English media in hard copy as well as on their own internet sites”.

He observed that publication by the English media in hard copy as well as on the internet would be against the interests of the Claimants children and also contrary to the Editors Code of Practice which the Defendant publishers had subscribed to.  Lady Hale in her judgment had commented that the children as well as being affected by a breach of their parents privacy interest also had their own independent privacy interests. Alongside their parents, they have a right to respect for their family life.  Further under s.12(4)(b) any court granting an interim or permanent injunction must “ have “particular regard” to “any relevant privacy code”.

Lord Mance considered there had to be an effective remedy and in this case, the Claimant’s main concern was the invasion of privacy that would result in any further publication and disclosure in the English media with any damages award being an inadequate remedy.

The Supreme Court had to decide whether to abide by the decision of the Court of Appeal to lift the interlocutory injunction it had granted or to overturn that decision. The Justices granted the Claimant permission to appeal to this Court and set aside the decision of the Court of Appeal on the 18th April 2016 with the continuation of the injunction granted on the 22nd January 2016 until further order or trial.

The Supreme Court based their decision on the Claimant being able to establish that publication of the story by the Defendant would breach his and his family’s privacy rights and he was entitled to an injunction to restrain publication because of the intrusion into his and his family’s private lives.

Lord Neuberger in his conclusion observed

  • “it appears to me that the interlocutory injunction sought by PJS should be granted. The courts exist to protect legal rights, even when their protection is difficult or unpopular in some quarters. And if Parliament takes the view that the courts have not adapted the law to fit current realities, then, of course, it can change the law, for instance by amending section 12 of the 1998 Act”.

Lord Toulson in his dissenting judgment disagreed with the majority of the Supreme Court and concluded that the original injunction granted by the Court of Appeal on the 22nd January 2016 should not be reinstated.

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