ZYT & Anor v Associated Newspapers Ltd [2015]

In ZYT & Anor v Associated Newspapers Ltd [2015] EWHC 1162 (QB) the Claimants sought an injunction against the Defendants, the publishers of the Daily Mail, to stop them printing a story in their newspaper concerning the First and Second Claimant’s personal relationship with each other.

The Claimants argued that their relationship was a private and confidential matter and did not concern anyone except the small circle of people they had confided in. They further contended that there was no legal principle involved that would support the details of their relationship being printed in a national newspaper and consequently read by large sections of the general public.

The Defendants on the other hand argued that if details of the Claimant’s relationship they wished to publish were considered to be private and confidential, that information was of such little importance, it was a public interest story and this surpassed any rights the Claimants may have.

Mr Justice Warby had decided at the outset of the hearing for the application to be held in private otherwise it would have been at odds with what the application entailed. The Defendants Counsel who had forcibly argued against an injunction did support the Claimants application for a private hearing.

Mr Justice Warby heard the application in private and granted the injunction in favour of the Claimants which was to run until the return date of their application, which they had undertook to make. The injunction was to carry on until the further hearing which had been agreed for the 6th May 2015.

Mr Justice Warby shortened his ruling so as to provide brief details to the public, in keeping with the hearing, that no details of the Claimant’s relationship be made public at that stage. His brief summary mentioned that the First Claimant was married but separated and held a senior post in Education and the Second Claimant was connected to the same Educational establishment. They had gone to great lengths to conceal their relationship which was only known to a few people and some at their workplace. There were also indications that the relationship was known in the media aside from the Defendant as an anonymous letter had circulated without revealing the Second Claimant’s name. The Claimant’s Counsel believed the information to be covered by the laws governing breach of confidence and misuse of private information.

Mr Justice Warby considered the well-founded principles applicable to this matter as follows:

  • (a) Under s.12 (3) Human Rights Act 1998 the party applying for an injunction must be able to convince the Court that they will probably be able to demonstrate that the publication should not be permitted
    (b) In cases of breach of confidence it must be demonstrated that the information contained in the story is such that the Defendants owe a duty of confidence to the Claimants and by publishing the story would show a breach of that duty of confidence.
    (c) The Claimants must be able to show that they are entitled to a reasonable expectation of privacy and if that is proved then the court must assess the rights of the Claimant against the rights of the Defendant to ascertain which rights prevail by applying a test of necessity and proportionality.
    (d) The Claimants have to show in their evidence that the Court can determine through that evidence what is necessary for them to establish their claim.

Mr Justice Warby further considered that in order for the Court to decide on an application such as this all the evidence must be before them and if incomplete then all the facts of the case would not be before the Court casting doubts on the evidence before them.

He continued that the Defendants had argued it was unconcerned with publicising the intimate details of the Claimant’s personal relationship but rather the fact that they were involved in a personal relationship. Mr Justice Warby noted what the Claimants had said about their relationship, that at that moment their relationship had been private and confidential and it was only known to a few people. He considered that at the trial it was the Claimants right to tell others about the relationship if they chose to and that the Court would find the Defendants owed a duty of confidence relating to those details.

Counsel for the Defendants had argued that their Article 10 rights were greater than any rights the Claimant might believe they have in the matter. He further argued that the behaviour of the First Claimant had been an abuse of his position and trust which would have contributed to the story being made public. Alternatively, members of the public might have viewed the relationship as inappropriate given the position held by the First Claimant and therefore it was right for the affair to be out for debate in the public arena.

Mr Justice Warby having weighed up all the arguments did not believe that at the trial the Court would consider the facts concerning the personal relationship between the Claimants was in the public interest and subsequently granted the temporary injunctions with the parties remaining anonymous.

“I do not consider it likely however that at a trial the court would conclude that the facts of and surrounding the relationship between these two claimants are such that it is in the public interest to make those facts known for those purposes.”

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