Jagger v Darling & Ors

MR JUSTICE BELL: This is an application on behalf of the claimant, Ms Elizabeth Jagger, for an order that John Darling and other defendants who are identified as “person or persons who acquired or made a copy of the CCTV recording of the said incident and supplied it or images taken from it to the News of the World newspaper” must not until the trial or further order of the court disclose, publish, republish, syndicate, use, communicate or disclose to any party any CCTV film footage or other movie or still image, whether original or copied, featuring, showing, picturing or identifying in any way by way of image or sound or otherwise the claimant at Kabaret nightclub on 16 and/or 17 February 2005 and any part, section or extract thereof.

It is also an application for an order that each defendant must preserve safely in his possession any and every item referred to in the parts of the draft order to which I have just referred.

Further, there is an application for an order that the first defendant, Mr Darling, must make and serve within 24 hours a witness statement verified by a statement of truth dealing with whether he has ever had the CCTV film footage in his possession and, if so, in fact what has happened to it.

There are other ancillary parts to the Draft Order which is requested.

I propose to give a short ruling, which is subject to the reservation that I have read only material put before me on behalf of the claimant and heard submissions only from Mr James Price QC on behalf of the claimant in his skeleton argument, and shortly this morning.

The background to the application is that at about 4.00am on Thursday, 17 February 2005 the claimant, well known herself by her parentage, engaged in sexual activities with her boyfriend, who is also well known himself by his father, in Kabaret nightclub.

On the evidence presently available the activities took place just inside the closed front door of the club where the parties might be surprised by someone passing close to them, but not, it appears, otherwise. Unknown to the claimant (according to the material before me at present) and the boyfriend, the activities were recorded by a CCTV camera, which she had not noticed above them. Some of the sexual activities which were said to be recorded by the CCTV camera were reported in the News of the World on Sunday, 20 February 2005, with rather indistinct stills from the CCTV recording.

On the evidence before me there is a real case that John Darling, the manager of the club, took possession of the CCTV disk and directly or indirectly passed it, or an electronic copy of it, to the News of the World newspaper.

The purpose of the application is to prevent any further publication of the CCTV recording. The claimant is particularly anxious that it should not get on to the worldwide web where publication would be almost impossible to stop. Her claim is based, firstly, upon copyright, which has now been assigned to her by the nightclub’s owner who held the original copyright of the CCTV recording; and, secondly, upon misuse of private information in accordance with various authorities which have followed upon the incorporation of Article 8 of the European Convention for the Protection of Human Rights into English law.

Since the order might affect the defendants’ rights to freedom of expression under Article 10 of the Convention, the court may not grant the claimant the relief she seeks before trial unless it is satisfied that she is likely to establish that publication should not be allowed (see Section 12(3) of the Human Rights Act 1998).

It is important to bear in mind that the publication against which the claimant seeks a remedy is publication of the CCTV recording or any copy of it or part of it and not against written accounts of what it is alleged to disclose.

My conclusion upon this so far uncontested application is as follows. There is strong evidence that John Darling first took possession of the CCTV disk and published it to others despite his denials. If his denials are true, of course he has nothing to fear from the order in question. The others cannot be identified by name but they can be by description of circumstance, and they are a limited class of persons.

On present material the balance is against the claimant having realised that her conduct would be observed clearly, or electronically recorded at all. To that extent, she had a legitimate expectation of privacy. Although the claimant may be said to have been guilty of misconduct in the most general sense, she was not in my view, on the present information, guilty of such immoral behaviour as to prevent her seeking a remedy from the court.

The balance between the claimant’s rights and any defendant’s rights to freedom of expression on the present evidence and submissions, in my judgment falls firmly in favour of restraining publication. I can see no legitimate public interest in further dissemination of the images which could serve only to humiliate the claimant for the prurient interests of others.

In those circumstances, I find that the claimant is likely to establish at trial that publication of the CCTV recording or any electronic copy of it or part or it should not be allowed.

I therefore make an order in the form of paragraph 1 of the Draft Order restricting disclosure.

I make an order in the terms of paragraph 2 of the Draft Order that each defendant must preserve safely in his possession any item referred to in paragraph 1.

I make an order in the form of paragraph 3 of the Draft Order referring to a witness statement verified by a statement of truth from the first defendant as to the circumstances surrounding any copy of the CCTV film so far as he is concerned or is aware.

I make an order in the terms of paragraph 4 of the Draft Order for service on the first defendant and the nightclub with the request that they should pass it to all persons who may be affected by it, namely, any employees of the nightclub who had access to the CCTV recording.

I make an order in the terms of paragraph 6 of the Draft Order that all parties have liberty to apply to discharge this order upon at least 48 hours notice.

MGN Limited, publishers of national newspapers, not the News of the World, should be served with a copy of the order and a note of the ruling which I have made, or a transcript of it if those acting for the claimant choose to obtain a transcript.

Copies of the statements in support of the application made before Mr Justice Sullivan, and before me, should be served on MGN Limited if (but only if) an undertaking is given on behalf of MGN Limited that the statements or any of their contents will be used only for the purposes of an application to discharge or vary the order which I have made.

I stress, as I did at the beginning of this ruling, that the conclusions which I have reached for the purposes of deciding this application are made having heard only the case of the claimant and not of any other party who may be interested in publication.