McKennitt & Ors v Ash & Anor

LORD JUSTICE RICHARDS: This is an application for permission to appeal against a judgment of Eady J handed down on 21 December 2005. The first claimant in the proceedings before him, Loreena McKennitt, is a composer and performer of folk music. The particular focus of her concern is the publication of a book entitled “Travels with Loreena McKennitt – My Life as a Friend”. The author of the book was the first defendant, Niema Ash, formerly a friend of Miss McKennitt. The second defendant was the company set up by Miss Ash to publish the book. Miss McKennitt sought to restrain publication of certain passages of the book on the grounds of breach of confidence. The judge found in her favour in relation to some, but by no means all, of the passages in question. The judge refused permission to appeal. Sir Charles Mantell granted the defendants permission to appeal in respect of the judge’s costs order, but refused permission on the balance of the grounds. Mr Price has presented a renewed application before us in relation to the grounds for which permission was refused.

The judge’s judgment is detailed and careful. I had formed the provisional view on consideration of the papers that permission to appeal should be refused. But Mr Price’s submissions highlighting a number of features have led me on reflection to the conclusion that the case does merit substantive consideration by the Court of Appeal. It cannot be said that the prospect of success on an appeal is fanciful, and this is an important and developing area of the law where an appeal on these facts may help to clarify and define some of the relevant principles even if it does not alter the outcome.

In particular, a number of important issues arise in considering whether the judge struck the right balance between the claimants’ Article 8 rights and the defendants’ Article 10 rights. There is the question whether he took sufficiently into account what was said in A v B Plc [2003] QB 195 about the special position of public figures and the legitimate interest of the public in being told information about them. It is contended that in the light of that case the judge was wrong simply to direct himself by reference to a traditional and narrow public interest defence.

If one does focus on the public interest defence, there is a question whether Woodward v Hutchins [1977] 1 WLR 760 is still good law and, if so, whether the judge erred in failing to apply it to this case, or whether the approach in Woodward can no longer be sustained in the light of other developments.

Another question relevant to the balancing exercise, and again engaging what was said in A v B Plc , is that Miss Ash’s account relates in part to shared experiences and the question arises whether the judge gave primacy to, or undue weight to, the claimant’s right to privacy as compared with Miss Ash’s right to tell her own story.

There is, further, an interesting issue arising out of the claimant’s contention that some of the material was untrue. To what extent can a claimant properly use a privacy claim instead of a defamation claim to restrain publication of allegedly false material? Mr Price has suggested that the judge’s approach in this case encourages the bringing of “false privacy” claims. Should the judge have determined whether the alleged falsity of some of the material took it outside the scope of the right to privacy, rather than allowing the claimant to have her cake and eat it by asserting that the material was both false and confidential?

On the various specific passages in relation to which the judge granted an injunction, one particular point raised by Mr Price and, as it seems to me, worthy of further consideration, concerns the judge’s view that the history behind the Chancery proceedings, save insofar as it is set out in his own judgment in the case, was confidential, including his comment that the whole point of the Tomlin order was to keep the settlement terms confidential.

I have picked out only a few of the matters raised by Mr Price in the course of his submissions but take the view that the substantive issues raised in the grounds of appeal are to some extent interrelated, and that if permission is granted it would be wrong to grant it on a limited basis. I would therefore grant permission on grounds 1 to 5 inclusive, which encompass the various legal principles and their application to the facts of the case. I had some doubt as to whether one or two of the points raised by Mr Price fell strictly within the grounds but have come to the view that they are sufficiently covered by the generality of the points raised in those grounds.

I would, however, exclude ground 6 which is altogether different in kind. It arises out of the fact that Miss Ash acted in person at trial. It is said that the lack of legal representation in a case so dependent on the interpretation of relevant case law meant that she did not have a fair trial.

It is important to put in context her appearance as a litigant in person at the trial. She had previously been represented by counsel and solicitors who came off the record only on the eve of the trial. Pleadings, evidence and skeleton arguments had all been filed by or with the assistance of those legal representatives. Counsel and solicitors had appeared for her at a pre-trial review a few days before the trial, where a number of the arguments at trial were rehearsed. So Miss Ash’s involvement in the trial itself took place in circumstances where her case had been carefully considered and formulated and the judge was fully seized of the points that were being taken by the defence. It is also clear from his judgment that counsel for the claimants acted with the usual professional propriety in drawing the judge’s attention to authorities that might be considered favourable to the defence.

In these circumstances I see no prospect of persuading the Court of Appeal that the trial was unfair or in breach of Article 6. I would refuse permission in respect of ground 6. Therefore what I would grant is permission in respect of grounds 1 to 5 inclusive.

LORD JUSTICE WARD: I agree.