ZYT & Anor v Associated Newspapers Ltd

This afternoon I heard an urgent application on behalf of the two claimants in this action for an injunction to prohibit publication by the defendant, the publisher of the Daily Mail, of what the claimants contend is confidential and private information about them.

The information concerns a personal relationship between the claimants which they say is private and confidential, both in its nature and in the sense that the claimants have taken steps to keep it secret, so that it is known, so they say, to only a handful of people. The injunction sought seeks to restrain the disclosure of the fact of the relationship, details about it, and pictures of the claimants together.

The claimants’ case is that there is no lawful basis for the disclosure of this information by the defendants to the public at large via the pages of the newspaper. The defendant’s case is that if there is any privacy and confidentiality attaching to the information it wishes to publish then it is of a low level, and that in any event there is a legitimate public interest in its disclosure which is such as to outweigh the rights of the claimants.

At the outset of the hearing I granted an application made by Mr Tomlinson QC on the claimants’ behalf that the application should be heard in private. Mr Browne QC, who appeared for the defendant, and vigorously resisted the injunction, did not really oppose that initial application. He realistically accepted that it was, as Mr Tomlinson submitted, a necessary measure because a public hearing would have defeated the purpose of the application before it had been heard and decided.

Having heard the argument in private, I concluded that the claimants should be granted the injunction they seek, until the return date of an application notice which the claimants have undertaken to issue, seeking the continuation of the injunction until trial. In the event, it has been agreed that the further hearing will take place on 6 May 2015.

In a short private ruling I gave brief reasons for the conclusion I had reached, before opening the court to the public and providing a public but brief account of the proceedings and my conclusions. The amount of information I could include in that account was necessarily curtailed by my conclusion that it neither the fact nor details of the claimants’ relationship ought to be made public, at least at this stage. This short written judgment is intended to make a slightly fuller but still necessarily brief summary available to a wider public.

The first claimant is married, though the couple are separated. The first claimant holds a senior position in an educational institution. The second claimant is an adult who is also associated with that institution. The two have been in a personal relationship for some two years. They have taken steps to keep the relationship secret so that the fact of the relationship is known, according to the evidence of the first claimant, to some but only a small number of others associated with the institution.

There is evidence that the fact of the relationship is also known to some in the media, not limited to the defendant, Associated Newspapers. That appears to have come about because an anonymous letter has been circulated amongst certain media organisations giving some information about the relationship, although it does not name the second claimant. There is no evidence that the relationship is in the public domain. It is said by Mr Tomlinson that the information is protected by the laws of breach of confidence and misuse of private information.

The principles to be applied on an application of this kind are well established.

I emphasise that the decision on an application such as this has to be made on the basis of the evidence before the court on the application. That evidence is often incomplete, and can leave some uncertainties about relevant facts. The court must do its best, without engaging in speculation, to arrive at an assessment of the most likely outcome if all the evidence was before it at a trial.

This is a case in which the details of the relationship are not at the heart of the argument. The defendant contends that it does not have and is not interested in publishing details of what has passed between the claimants but only the fact that they are and have been in an intimate personal relationship. There is no argument of substance advanced in response to those parts of the injunction sought that seek to restrain the disclosure of details of the relationship, and pictures of the two together.

Whether the fact of a relationship is private or confidential information will depend on the circumstances of each case. Very often it will not be confidential or private. The relationship between married people is a public fact and in no way confidential, for example. Other relationships involving less formal, public, or enduring commitments can also be public information and not private or confidential. In this case I accepted the claimants’ submission that the fact of their relationship is at the present time an item of information that is both confidential and private. The extent to which it is known appears to be very limited. At this stage I consider that Mr Tomlinson’s submission that the claimants have a right to choose who they tell about the relationship and when is one that is likely to be accepted at trial. I also consider that it is likely that at trial the court would conclude that the defendant is under a duty of confidence in respect of the information. The core of the argument seems to me to relate to the question of breach of duty (in the law of confidence) or the second, balancing, stage of the misuse claim.

Mr Browne has submitted that the fact of the relationship between these claimants is an item of information which it is in the public interest to make known. To put it another way, the Article 10 rights of the defendant and the general public to impart and receive this information are said to outweigh the limited weight to be given to the claimants’ rights. At its highest, his argument has been that the claimant, in entering into and conducting this relationship, has misconducted himself in such a way that it is legitimate to make the facts known. Alternatively, Mr Browne has submitted that there are grounds to believe or suspect that the way the first claimant has behaved represents an abuse of his position and a breach of trust, which it is legitimate to make public. In the further alternative, he has submitted that the fact of the relationship between these two is of itself something that some members of the public may legitimately regard as improper, because of the position held by the first claimant; and that the fact should therefore be made public in order that a debate can be had about whether it is improper.

As Mr Browne accepted, it is impossible for me on this application to determine whether the first claimant has been guilty of the kinds of misconduct which at times were alleged as a fact. I am not satisfied that there are, on the evidence presently available on this short notice application, good or reasonable grounds to believe or suspect that the first claimant has engaged in any breach of trust or abuse of his position. The proposition appears speculative. I accept that there is a genuine public interest in debating the ethics of personal relationships within an educational context, and how these should be approached and dealt with. I accept also that it is important for such a debate to be more than an arid theoretical one. There is a legitimate interest in such a debate being informed by concrete examples or illustrations. 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.

Having reached these conclusions I granted the injunctions sought, including an order anonymising the parties. I considered this to be clearly the appropriate course. To adopt what was Mr Browne’s fall back position, of granting an injunction restraining publication of the information, but permitting disclosure of the parties’ identities would in practice have led to the information becoming public within a short period of time. That is because there is other information in the public domain that would enable an interested observer to piece together the jigsaw without difficulty.

These are, in brief summary, the reasons why I have granted the claimants the temporary injunctions they seek. I add that the evidence necessarily put together in haste did not include a witness statement from the second claimant, but Mr Tomlinson undertook on her behalf that one would be made, filed and served by 4pm next Monday. The evidence did not include anything from the first claimant’s spouse, which is another element of the picture of potential significance that may become clearer in due course.

The evidence was also lacking in detail or clarity about a third matter, namely when and how and in what terms the fact of the relationship was made known to those responsible for the governance of the institution in question. It is clear that the senior executive officer knows, and the first claimant’s evidence suggested that it was the first claimant that made the disclosure. It is not clear, however, and there is nothing as to when the disclosure was made. This therefore is another area of the evidence that I would expect to be clarified in further evidence. At present it seems to me more likely than not that the claimant made disclosure, and did so at an appropriate time.