Axon v Ministry of Defence & Anor (Rev 1)

This was the trial of an action for misuse of private information and/or breach of confidence. In 2004 the Claimant was the Commanding Officer of a Royal Navy frigate, HMS Somerset (‘the Ship’). Complaints were made that he had bullied junior officers on the Ship. An Equal Opportunities Investigation (‘the EOI’) was conducted which upheld the complaints. The Ship, which was returning from deployment in the Gulf, called in at Gibraltar. On 10^th December 2004 the Claimant was instructed to return to London and hand over temporary responsibility to his Executive Officer. He was given the opportunity to comment on why he should not be permanently relieved of his command. In a letter of 13^th December 2004 he accepted that his position as Commanding Officer had become untenable as a result of the EOI report and he did not oppose his removal. On 14^th December 2004 the Sun newspaper published a story under the headline ‘Mutiny on Gulf Warship: “Bully” Captain is kicked off’. On 15^th December 2004 the Claimant was formally removed from his command. He was given a further opportunity to comment on other administrative action which might be taken in consequence of the EOI report. On 15^th December 2004 the Sun published a second article under the headline ‘Crew Tell of Abuse: Two Officers Made Claims’. On 17^th December 2004 the Sun published a third article under the headline ‘Mutiny Skipper Sacked: Navy Warship Captain Guilty of Bullying’. I have referred to the articles by the Sun, but there was considerable coverage in other sections of the media after the first Sun article.

Subsequently, the Claimant was reassigned to a shore based appointment. On 17^th January 2005 Admiral Sir Jonathan Band, the Commander-in-Chief Fleet, formally expressed his severe displeasure at the Claimant’s conduct and administered a censure. The censure would remain on the Claimant’s service record for 5 years.

The Claimant resigned his commission and retired from the Royal Navy in June 2007.

In 2013 News Group Newspapers Ltd (‘NGN’), the publisher of the Sun, disclosed that it had had a source within the Ministry of Defence (‘MOD’) who had been providing information for some 8 years and who had, over that time, received a total of about £100,000. Her name was Bettina Jordan-Barber. On 21^st December 2004 she had been paid £5,000 for what was identified in a schedule of payments as two stories: ‘Mutiny on Gulf Warship & Blackwatch soldier’. The Claimant was informed by the police on 16^th April 2013 that Ms Jordan-Barber had behaved in this manner. Both Ms Jordan-Barber and John Kay (a Sun reporter under whose byline the stories of 14^th December, 15^th December and 17^th December had been published) were prosecuted for conspiracy to commit misconduct in public office. Ms Jordan-Barber pleaded guilty and, in January 2015, was sentenced by Saunders J. to 12 months imprisonment. Mr Kay pleaded not guilty. He was acquitted by a jury in March 2015.

The Claim Form was issued in September 2014. The Claimant’s case is that he had a reasonable expectation of privacy and/or confidentiality in connection with the following information:

The Claimant says that I should infer that Ms Jordan-Barber disclosed all of this information to the Sun and that she intended that it should be published. It is his case that this was actionable interference with his reasonable expectation of privacy and/or confidentiality and/or his rights under Article 8 of the European Convention on Human Rights (‘ECHR’) for which the MOD is vicariously liable.

The Claimant did not, and has not, also sued NGN as a second defendant. However, the MOD has joined NGN as a Third Party (i.e. pursuant to proceedings under CPR Part 20). The MOD denies liability to the Claimant but says that, if it is liable to him, NGN is liable for the same damage and should indemnify it pursuant to the Civil Liability (Contribution) Act 1978 for any damages which it is required to pay the Claimant. NGN joins with the Defendant in denying that the MOD is liable to the Claimant. However, if the MOD is liable, NGN disputes that it, too, is liable to the Claimant. If it is liable, NGN says, in the further alternative, it is not for the ‘same damage’ and therefore is not liable to indemnify the MOD. The trial which I heard was of these third party proceedings as well as the claim by the Claimant against the Defendant.

The Claimant joined the Royal Navy and had reached the rank of Commander when, in June 2003, he was appointed to be Commanding Officer of HMS Somerset, which is a Type 23 frigate with a crew of about 185. In about May 2004 Somerset was deployed to the Gulf for a 6 month operational tour off the coast of Iraq.

Towards the end of this deployment complaints of bullying by the Claimant reached Commodore James Fanshawe, the Commander of the Devonport Flotilla and the Claimant’s immediate superior officer. Commodore Fanshawe in turn consulted with Rear Admiral David Snelson who was then the Chief of Staff (Warfare) based at Fleet Headquarters in Portsmouth. Rear Admiral Snelson decided to commission an EOI which he asked Captain Adrian Bell and Commander Richard Morris to conduct.

Captain Bell, Commander Morris, Commodore Fanshawe and the Ship’s Executive Officer (who had been recalled from leave) joined the Ship while it was on its way back from the Gulf and in Civitavecchia, Italy. Captain Bell and Commander Morris interviewed 24 witnesses (including the Claimant and the two complainants). They prepared their report which was dated 6^th December 2004. The report’s conclusion was as follows:

The EOI found that the Claimant’s bullying behaviour had continued, largely unchecked, for most of 2004.

On 10^th December 2004 Rear Admiral Snelson wrote to the Claimant. After referring to the report (which he enclosed with his letter), he said,

On the same day (i.e. 10^th December 2004) Jan Swatridge of the Fleet Secretariat wrote a Loose Minute to the Permanent Secretary of the Under Secretary of State (‘the Loose Minute’). This said,

The Loose Minute was accompanied by a Defensive News Brief. This included the following:

The Claimant wrote, as I have said, to Rear Admiral Snelson on 13^th December 2004. He said that the recent events had been a devastating blow for him. He then added,

NGN has provided a draft of the article which was published by the Sun on 14^th December. It was prepared sometime on 13^th December. If Ms Jordan-Barber was the source for the story, she must have provided the information on or before that date.

Rear Admiral Snelson wrote to the Naval Secretary on 14^th December 2004. He noted in particular that the EOI had found that officers had been subjected to verbal abuse often in front of subordinates. The Executive Officer in particular had been subjected to indefensible pressure which had induced failure in him. The bullying had occurred through most of 2004 and resulted in a climate of fear which in turn had resulted in a degree of dysfunctionality and a paralysis in terms of leadership and responsibility among the officers. Rear Admiral Snelson added,

The Naval Secretary was Rear Admiral Wilkinson. On 15^th December 2004 he approved Rear Admiral Snelson’s application for the Claimant’s removal from his command. Rear Admiral Wilkinson said,

The same day Rear Admiral Snelson wrote to the Claimant saying,

The Claimant was told that he had until 7^th January to make any further representations before a decision was taken as to whether any administrative action would be taken. I agree with the MOD and NGN that, from the context, this must have been administrative action other than removal from his command since that decision had already been taken.

The Sun had published its articles on 14^th and 15^th December and there had been considerable media coverage of the story elsewhere as well. On 16^th December 2004, the MOD issued a statement which said,

The Claimant wrote to Rear Admiral Snelson on 4^th January 2005. The outcome was a letter from Admiral Sir Jonathan Band of 17^th January 2005, which I mentioned above. He said,

It is convenient at this stage to refer to the role of Ms Jordan-Barber in the MOD. In 2004 she worked in PJHQ J9 Pol/Ops for Iraq. That needs to be translated. ‘PJHQ’ was the Permanent Joint Headquarters based in Northwood, Middlesex. ‘Joint’ in this context means that PJHQ covered all the Armed Services: Army, Navy, Royal Air Force and Royal Marines. PJHQ was established to provide an enduring focus for the management of the UK’s overseas operations. The J9 Division comprised about 25 members and was based in Northwood. Within J9 there were three sections for Policy and Operations (hence ‘Pol/Ops’) in different geographic areas: Iraq and the Gulf, Afghanistan and the Permanent Joint Operating Bases (‘PJOBS’). One of these PJOBS was Gibraltar. Ms Jordan-Barber was in the Iraq Pol/Ops team. This consisted of about 4-5 individuals. It was led by Geoff Dean. In addition to the three Pol/Ops teams, J9 also had a legal section and a media operations section.

In 2004 the civil servant in overall control of J9 was Will Jessett. He described the work of the division in his witness statement and evidence. The J9 Pol/Ops Iraq team had two main responsibilities. It fed down to those conducting military operations in Iraq political policy and guidance from the MOD. Secondly, the team briefed ministers, other senior staff and the Defence Ministry Press Office on operational matters within Iraq and responded to Parliamentary inquiries. In order to do this, they had to investigate and establish facts from military personnel and forward based civil servants who were in that region and then provide oral and written briefings. Ms Jordan-Barber’s role included assisting in drafting and submitting advice to the MOD on ‘lines to take’ in relation to particular operations. However, it did not include liaising with, or briefing, the media. It was the responsibility of the Press Office to interact with the media.

J9’s Media Team consisted of 3-4 members. Ms Jordan-Barber was not one of them. They were housed in a separate office in Northwood. Their role was to organise media visits to the war zones in the Middle East and Afghanistan and assist the Pol/Ops teams on the presentational aspects of ministerial submissions and briefings to the Press Office.

I have referred above to the Loose Minute of 10^th December 2004. This had been prepared by Jan Swatridge who was not part of the J9 Division. It was sent to a number of addressees apart from the Permanent Secretary. However, none of the addressees was in J9. When HMS Somerset had been on deployment in the Gulf it would have been in a Joint Operating area and, during that period, PJHQ would have taken responsibility for its command. However, after Somerset left the Gulf and arrived in the Mediterranean, responsibility for it would have reverted to the Navy. Thus, at the time that the Loose Minute was written, PJHQ would have had no immediate need to receive it. However, Mr Jessett accepted that, because Gibraltar was one of the Permanent Joint Operating Bases, the part of PJ9 which dealt with PJOBs (not Ms Jordan-Barber’s section) might have been sent the Loose Minute for information.

The allegations of conspiracy to commit misconduct in public office by Ms Jordan-Barber covered, as I have said, a very lengthy period and a large number of stories. NGN provided a schedule of some 65 such stories for which she had been paid. In the course of the criminal proceedings against her, Ms Jordan-Barber commented on them individually. One entry in the NGN schedule was for ‘Mutiny on Gulf warship & Blackwatch soldier’. For this she was paid £5,000 which was the largest single sum she ever received from the Sun. Ms Jordan-Barber said in relation to this entry, ‘[She] does not remember knowing about this story and does not think she spoke to JK [John Kay] about it.’ Subsequently in correspondence, solicitors on behalf of NGN accepted that the sum of £5,000 was paid for information about the Claimant in connection with the story about the Equal Opportunities Investigation.

The Claimant gave evidence on his own behalf. He also called his wife, Gail Axon.

The Defendant called (i) Will Jessett who, as I have said, was the head of J9 at the relevant time; (ii) Clare Cameron who, in 2004, worked in the same Pol/Ops Iraq team within J9 as Ms Jordan-Barber; (iii) Jo McKeegan-Brown who, in 2004, was the head of the J9 Pol/Ops team for the PJOBS; (iv) Ken Johnston, the Deputy Head of Media Operations in J9 Media team at the time; (v) Garret Martin, who also in the autumn of 2004 worked in the J9 Pol/Ops Iraq team with Ms Jordan-Barber; (vi) Peter Davis, the current head of J9 and (vii) Geoff Dean, in 2004 the head of the J9 Pol/Ops Iraq team and Ms Jordan-Barber’s immediate line manager.

The following witness statements served on the Defendant’s behalf were agreed: (i) first and second statements of Rear Admiral David Snelson (now retired), Chief of Staff (Warfare) in 2004; (ii) Commodore Michael Farrage, now the officer responsible for deciding complaints submitted by Naval personnel; (iii) Commodore Richard Morris who, together with Captain Bell, carried out the EOI; (iv) Darragh McElroy, currently the Chief Communications Officer for Personnel and Policy in the MOD; (v) Simon Lynch, a lawyer in the Government Legal Department who produced certain documents; (vi) Adrian Cassar, who acted as the Claimant’s career manager; (vii) Robert Brown, Deputy Assistant Chief of Staff Promotions, Royal Navy.

In addition, I had the witness statement of Commodore Bob Sanguinetti (Retired) which, though not agreed, was admissible hearsay because the witness was not available for the trial.

NGN called no witnesses and provided no witness statements.

There was a reasonably substantial amount of documentary evidence.

There was consensus among the parties that the following issues were raised:

Misuse of private information is now clearly recognised as an actionable wrong. It developed out of the remedies which the law would grant for breach of confidence, but its development was given particular emphasis by the incorporation into English law of Article 8 of the ECHR by the Human Rights Act 1998. The development of the action for misuse of private information was described by the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. Lord Nicholls noted the respect which Article 8(1) required to be afforded to a person’s private and family life. In many contexts, that had to be balanced against the right to freedom of expression which Article 10 of the ECHR also conferred. Lord Nicholls said that there were two distinct questions which had to be asked. The first was whether the information in question engaged Article 8 at all by being within the sphere of the complainant’s private or family life. The second question (which only needed addressing if the complainant succeeded at the first stage) was whether the interference with private or family life was justified. At [21] Lord Nicholls said,

The phrase ‘a reasonable expectation of privacy’ has indeed become the common way of encapsulating Lord Nicholls first question and was recently approved by a majority of the Supreme Court in In Re JR38 [2015] 3 WLR 155.

In Campbell Lord Hoffman and Lord Nicholls dissented on the facts, but there was no disagreement as to the principles which should be applied. At [51] Lord Hoffman contrasted the basis of the claim for misuse of private information with the approach adopted to breach of confidence. He said,

In Murray v Express Newspapers Ltd [2009] Ch 481 Sir Anthony Clarke MR giving the judgment of the Court said at [36],

The idea that Lord Hoffman articulated in Campbell of this tort protecting an individual’s personal autonomy was picked up by Laws LJ in R (Wood) v Commissioner of Police of the Metropolis [2010] 1 WLR 123 CA at [21] where he said,

Laws LJ dissented in Wood on whether the interference was justified in terms of Article 8(2), but Dyson LJ (at [64] and Lord Collins at [96] agreed with his analysis of Article 8(1) which was also described as ‘impressive’ by Lord Toulson in In re JR38 [2015] 3 WLR 155 at [86].

As I have said, the development of this tort has owed much to Article 8 of the ECHR. ‘Private life’ for the purposes of Article 8 does not necessarily exclude business or professional activities - see e.g. Niemietz v Germany (1992) 16 EHRR 97 at [29]-[31]. However, this does not mean that the notion of ‘private life’ is limitless. As the European Court of Human Rights said in Friend v UK; Countryside Alliance v UK (2010) 50 EHRR SE6,

The reference to Lord Rodger was to his speech in the House of Lords decision in the English case which preceded the Strasbourg decision – R (Countryside Alliance) v Attorney-General [2008] 1 AC 719. This had been a challenge to the ban on the hunting of wild mammals with dogs in the Hunting Act 2004 on a number of grounds, among which was the claim that the ban constituted an improper interference with the Claimant’s rights under Article 8 of the ECHR. The argument failed because the House of Lords did not accept that hunting with hounds was part of the Claimants’ private lives. Lord Rodger considered the case of Von Hannover v Germany (2005) 40 EHRR 1 in which the Strasbourg Court had upheld the complaint of Princess Caroline of Monaco that her rights under Article 8 had been violated by the publication of photographs of her taken in public. At [107] Lord Rodger said,

In part the challenge to the Hunting Act failed because hunting with hounds was a public spectacle and for that reason was outside the scope of Article 8. The Claimants relied as well on the impact which the Act had on the employment of the professional huntsmen, but, as Lord Bingham commented at [15(4)], even on that basis, the claimants’ complaints were far removed from the values which Article 8 exists to protect.

In R (on the application of Prescott) v General Council of the Bar [2015] EWHC 1919 (Admin) Hickinbottom J. picked up on this part of the Countryside Alliance decision. He said,

Similarly in Yeo v Times Newspapers Ltd [2015] EWHC 3375 (QB) Warby J had to consider a claim for libel by Tim Yeo. One matter that had to be resolved was whether this libel claim engaged the Claimant’s rights under Article 8. The Judge said that it did not. At [147] he said,

A further constraint on the scope of Article 8 was mentioned in Axel Springer AG v Germany (2012) 55 EHRR 6 where the Court said at [83],

A similar point was made by Lord Toulson and Lord Hodge in In Re JR38 [2015] 3 WLR 155 when they said at [100],

In the same case, Lord Clarke also said at [109],

Lord Toulson and Lord Hodge likewise said at [98],

The Claimant acknowledged that the role of the Commanding Officer of a Royal Navy warship had public features. Particularly when on operations or in a foreign port, the Commanding Officer would be the public face of the ship. The identity of the Commanding Officer was also a public fact. At the relevant time, the ship’s website identified the Claimant as its Commanding Officer and gave brief details about him. The Claimant did not dispute that the facts that he had been required first temporarily to hand over to another officer and then his removal from the command of HMS Somerset were public matters. However, Mr Tomlinson QC, for the Claimant, maintained that the reasons for his removal were matters in which the Claimant had a reasonable expectation of privacy.

The bullying of junior officers had been harmful in part because it had sometimes occurred in the presence of others. The EOI had referred to these events as having taken place ‘in public’, but in context that meant no more than ‘in the presence of others’ and never more than a very few others. These were not ‘public’ as opposed to ‘private’ events in the sense of the distinction drawn for the purposes of Article 8. The public did not have a right of access to the Ship and the public, in this more general sense, were not present when the bullying occurred.

In his evidence, the Claimant had accepted that he had bullied junior officers. He had accepted that bullying was abhorrent and shameful. He deeply regretted this conduct (even though he said he had been unaware at the time of the effect his behaviour was having). However, this conduct was not criminal. Nor had he ever been accused of an offence against naval discipline. The Queen’s Regulations for the Royal Navy regulation 3804(1) says that administrative censures are not punishments. Had the Claimant been charged with a disciplinary offence, he would have faced a court martial which would have been conducted in public. That was not the case: the EOI had been conducted as part of an administrative process within the Royal Navy where his procedural rights were very much less than at a court martial.

The EOI was intended to remain confidential and private. The Defence Council Instructions 12^th April 2002: ‘Naval Service Equal Opportunities Policy and Action Plan 2002’ (‘the DCI’) provided at [30],

Consistently with the private character of the EOI, the relevant documents were all marked ‘Restricted – Staff’. That was the case with the letter of 29^th November 2004 appointing Captain Bell and Commander Morris to carry out the EOI, the EOI report; the Loose Minute; the letter from Rear Admiral Snelson to the Claimant of 10^th December 2004; the Claimant’s letter to Rear Admiral Snelson of 13^th December 2004; and Rear Admiral Snelson’s letter of 14^th December 2004 seeking the Claimant’s removal from his appointment. Mr Tomlinson did not suggest that the MOD was estopped from now arguing that the Claimant had no reasonable expectation of privacy in the proceedings, but the way in which these documents were marked was, he submitted, powerful evidence in support of the Claimant’s case.

Furthermore, the Loose Minute showed that it was predicted that the fact of the Claimant’s removal from his Ship might become public from information provided by the crew of Somerset. In that event, the Loose Minute advised, the identity of the Claimant (as the Commanding Officer who had been removed from his Ship) would be confirmed, but even in those circumstances, the MOD anticipated not releasing further information about the nature of the EOI and, in particular, not confirming that it had involved allegations of bullying. Mr Tomlinson submitted that this also showed that, despite the unusual step of removing a commanding officer, the MOD expected the reasons for that measure to remain private. That, too, he argued, was powerful supporting evidence for the proposition that, viewed objectively, there was a reasonable expectation of privacy in those reasons not being made public.

In cross examination by Mr White, the Claimant had accepted that his bullying of junior officers had been shameful and abhorrent and he agreed that he could not have expected such conduct to be kept secret, but, as Lord Clarke had said in In Re JR38, the issue is not what the Claimant subjectively expected: the issue is whether, viewed objectively, the Claimant had a reasonable expectation of privacy.

After the Claimant was removed from his Ship, he received a censure from Admiral Sir Jonathan Band. That would have remained on the Claimant’s service record for 5 years, but it would then have been expunged. Part of the reason for maintaining the confidentiality of these administrative processes was to allow for rehabilitation of the person concerned after an appropriate period. Publicity precluded that possibility. This was another reason why the Claimant had a reasonable expectation of privacy in the reasons for the action taken against him.

Looking at the circumstances which Murray said were to be taken into account in deciding whether there was a reasonable expectation of privacy, it was relevant that the Claimant did not consent to the disclosure and would not have done so if asked. It was also relevant that the disclosure by Ms Jordan-Barber was a misconduct in public office and a criminal act. She was paid £5,000 for the story.

It was particularly important in this case to recall Lord Nicholls’ warning in Campbell not to confuse the present question (whether there was a reasonable expectation of privacy) with the issue as to whether any interference was justified in the public interest. The distinction was important in the present context, firstly because, as a public authority, the MOD did not have any rights under Article 10 of the ECHR. This was not, therefore, the type of case (unlike many others) where the Court had to strike a balance between competing claims under Article 8 and Article 10. Furthermore, in response to a request for further information, the MOD had confirmed that it was not its case that the information should have been disclosed.

Ms Michalos, for the Defendant, and Mr White QC, for NGN, submitted that this claim concerned the Claimant’s performance of a very public role. The Commanding Officer of a warship represented the UK. His identity was publicly known and any change in who performed that role would also be publicly known.

The EOI involved the presence on the Ship of three very senior officers and the recall of the Ship’s Executive Officer from leave. Those were unusual events and it was inevitable that they would have been the subject of discussion among the Ship’s crew. During the conduct of the EOI, some officers were interviewed, but the nature of the allegations may not have been generally known. However, once the investigation had been completed and once the Claimant was removed from his Command, the position was different. As Rear Admiral Snelson put it in his agreed witness statement, ‘However, once he was removed the matter was de facto a public matter.’ In his view, it would thereafter have been acceptable for those officers who had been bullied to have told their parents what happened to them and why. The ship’s company had phone and internet access and, accordingly, it was very likely that the news would have broken very quickly.

Commodore Farrage observed in his agreed witness statement that the removal of the Commanding Officer of a ship while it was on deployment was very rare and the crew would inevitably know of it. Since changes in appointment are normally publicised months in advance, it would have been apparent in this case that the Claimant had been removed from his command. Commodore Farrage adds,

In the present case, it was also significant that the Claimant’s conduct, while not criminal or a disciplinary offence, had imperilled the operational effectiveness of his Ship. As the Claimant had accepted in cross examination, this was a matter of grave seriousness.

In my judgment the Claimant did not have a reasonable expectation of privacy in the information on which he relies. My reasons are as follows:

To some extent there is an overlap between the claims for misuse of private information and for breach of confidence. Where there is such an overlap, the critical question is the same: did the claimant have a reasonable expectation of privacy in the information in question? I have answered that adversely to the Claimant.

To the extent that breach of confidence continues to have a separate existence, it is incumbent on the Claimant to show that he was owed a duty of confidence by the wrongdoer.

Mr Tomlinson explained that the Claimant’s sole complaint is in relation to the behaviour of Ms Jordan-Barber. His claim is brought against the MOD because, he says, they are vicariously liable for her torts. The Claimant does not allege that any other civil servant within the MOD wronged him. Nor does he allege any breach of duty by the MOD directly.

In my judgment, the Claimant cannot maintain a distinct claim for breach of confidence because he cannot show that Ms Jordan-Barber owed him any duty to keep any material confidential. She had a security clearance known as Developed Vetting. I have no doubt that she owed a duty to preserve the confidentiality of information which she received in the course of her work and which she was not authorised to disclose to outsiders. However, that was a duty which she owed to either the Crown or the Ministry of Defence. It was not a duty which she owed to the Claimant. As Ms Michalos submitted, if the MOD had chosen itself to reveal any of the categories of information on which the Claimant relies, it would have been entitled to do so and the Claimant could not have prevented such disclosure.

Fraser v Evans [1969] 1 QB 349 CA was an example of a claim which failed on the same ground. The Plaintiff was a public relations consultant for the Greek government. He sought an injunction to prevent publication of one of his reports by the Sunday Times. The claim failed because any confidence was owed, not to him, but to the Greek government.

Mr Tomlinson commented that the law had moved on since that case. Certainly, the tort of misuse of private information has since developed and, in that context, it is not necessary for the claimant to show that the defendant owed him a duty of confidence. However, I am presently considering whether the claimant’s claim in confidence can succeed even though he did not have a reasonable expectation of privacy. In that context, Fraser v Evans remains sound law as Tugendhat J. recently held in Abbey v Gilligan [2013] EMLR 12 at [40].

It follows that the claim for breach of confidence provides no help for the Claimant.

As I have already noted, the tort or remedy for misuse of private information developed in part under the impetus of the incorporation of the ECHR into English law. It is the means by which UK law provides a remedy for improper interferences with a person’s private life which take this form. Mr Tomlinson did not suggest that the Claimant could derive assistance from Article 8 if the Claimant failed to show that he had a reasonable expectation of privacy in the information in question.

Article 8 does not therefore assist the Claimant, given my finding in relation to claim for misuse of private information.

My conclusion that the Claimant did not have a reasonable expectation of privacy in the information in question means that his claim for misuse of private information fails. His claim for breach of confidence (so far as that has a separate existence) fails because Ms Jordan-Barber did not owe him a duty of confidence. The Article 8 claim adds nothing. All of this means that the Claimant’s claim as a whole is unsuccessful and must be dismissed.

Strictly speaking it is not necessary for me to reach conclusions on any of the other issues. Some cannot be sensibly answered in consequence, but it may be helpful for me to give my views on at least some of the others.

There was no direct evidence as to the Sun’s source for these stories, but Mr Tomlinson submitted that the overwhelming inference was that it had been Ms Jordan-Barber. He pointed to the following pieces of evidence:

Ms Michalos argued that I could not find on the balance of probabilities that it had been Ms Jordan-Barber who had provided the information in which the Claimant said he had a reasonable expectation of privacy.

I conclude that it was more likely than not that Ms Jordan-Barber disclosed the information which the Claimant alleges is private. A critical piece of evidence is the admission on behalf of NGN that they had paid her £5,000 for this story about the Claimant. In view of that admission, the reference to a second story in the NGN schedule (the Black Watch soldier story) is of no consequence. I can also infer from the size of the payment that it was for more than a simple tip-off. It is true that others might have leaked the story to the press, but the evidence is that it was Ms Jordan-Barber who was paid for it. I did not find the references in the story to a ‘Navy spokesman’ to be of significance. There was no evidence from anyone at NGN as to who this might have been (or even any first hand evidence that there was such a spokesman, as opposed to a smokescreen to conceal the Sun’s true source). The CPS had no evidence of call data between John Kay and Ms Jordan-Barber during the critical period, but the old aphorism remains sound: the absence of evidence is not evidence of absence. The fact remains that by one means or another, Ms Jordan-Barber communicated information to Mr Kay about this story which the Sun considered was worth £5,000. I accept that there is no evidence as to how precisely Ms Jordan-Barber found out about the investigation into the Claimant, but even though it was not of relevance to her specific team, I accept that the information is likely to have been passed to J9 Pol/Ops PJOBS because of the Gibraltar connection and that she is likely to have learned about it because of the close proximity of her Iraq Pol/Ops team with the PJOBS team.

On this issue, therefore, I would have found in the Claimant’s favour.

Since the Claimant did not have a reasonable expectation of privacy Ms Jordan-Barber’s disclosure to the Sun did not constitute misuse of private information. Since Ms Jordan-Barber did not owe the Claimant a duty of confidence, the disclosure did not constitute a breach of confidence at his suit. The disclosure did not involve a breach of Article 8.

In the course of this trial, the Supreme Court handed down two judgments which restated the law regarding vicarious liability: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, and Cox Ministry of Justice [2016] UKSC 10. They confirmed that vicarious liability requires first a relationship between the wrongdoer and the defendant and secondly a connection between that relationship and the wrongdoer’s act or default – see Mohamud at [1]. In this case there is no difficulty regarding the first requirement. Ms Jordan-Barber was employed by the MOD and, by the Crown Proceedings Act 1947 s.2(1), for present purposes the MOD stands in the same relationship to her as an employer.

Mohamud then requires the Court to consider two matters. First, what was the field of activity entrusted by the employer to the employee, looked at broadly? Second, whether there was a sufficient connection between that field of activity and the wrongful conduct to make it right for the employer to be held liable to the claimant under the principle of social justice? - Mohamud at [44]-[45].

Ms Jordan-Barber was not acting for the benefit of the MOD in her dealings with the Sun. She was pursuing her own interests, including financial reward. Her behaviour was deliberate and criminal. In Joel v Morison (1834) 6 C&P 501, 503 172 ER 1338 Baron Parke used the memorable phrase of an employee being ‘on a frolic of his own’ and not then causing his employer to be vicariously liable. It might be said that Ms Jordan-Barber was on a frolic of her own in her dealings with Mr Kay, but it is very well established that an employer may be vicariously liable notwithstanding that the employee’s tort was intentional, prohibited, criminal and committed for the employee’s own ends – see for instance Lloyd v Grace Smith and Co [1912] AC 716, Racz v Home Office [1994] 2 AC 45 and Lister v Hesley Hall Ltd [2002] 1 AC 215.

In deciding whether there is a close connection between the employee’s job and the tort, it may not be sufficient that the employment provided the opportunity for the wrong. In Lister Lord Clyde said at [45],

The Amended Particulars of Claim alleged that ‘Ms Jordan-Barber’s duties covered dealing with media enquiries regarding disciplinary and other personnel matters and she was, therefore, authorized to disclose information concerning such matters to the media.’

The evidence, however, did not support that allegation, as Mr Tomlinson accepted. The MOD Press Office in London was responsible for direct dealings with the media. Ms Jordan-Barber was in the J9 Pol/Ops team for Iraq and the Middle East. That was based within the JCHQ in Northwood, Middlesex. Her job involved no direct dealings with the media at all. In summary, her role in J9 Pol/Ops was to provide policy advice to the military in Iraq and advice on operations in Iraq to the Ministers, the MOD including the Press Office and other government departments.

There was a Media team within J9 but (a) Ms Jordan-Barber was not part of that team; (b) its role was to arrange media visits to areas of joint operations (which was not the kind of enterprise that had led to disclosure to the Sun); and also to act as liaison between J9 Pol/Ops and the MOD Press Office.

All of this was common ground. However, the Claimant submitted that when Ms Jordan-Barber’s job was considered broadly (as Mohamud required) she could be seen as an ‘information dealer’. Part of her role was to gather and analyse information and to provide briefings to Ministers.

Mr Tomlinson argued that there was a sufficient connection between the job which Ms Jordan-Barber had been given and her wrongdoing to make it just to impose vicarious liability on the MOD. She was security cleared and given access to classified information as a result. Her job included giving advice on ‘lines to take’ which itself included advising on what should be disclosed and what remain confidential. She must have obtained the information in the course of, and as a result of, her employment. She acted for her own personal reasons in making this and other disclosures to the Sun, but that did not preclude the imposition of vicarious liability as Lister, Racz and Mohamud showed. Furthermore, the imposition of vicarious liability would be an additional stimulus to the MOD to engage in leak inquiries and to ensure that those with access to information of considerable sensitivity did not leak it in the future. There were strong public policy reasons for ensuring that public sector employers took all reasonable steps to preserve the confidential information about their employees. The MOD owed a duty of care to the Claimant as one of its employees and it would be fair, just and reasonable for the MOD to be responsible for the unlawful acts of one of its other employees in the course of her employment.

Ms Michalos argued that Ms Jordan-Barber’s job, however broadly defined, did not involve dealing with the media. She simply was not an ‘information dealer’. The EOI into the Claimant and his removal from his position as Commanding Officer of HMS Somerset had absolutely nothing to do with her job. The MOD positively prohibited communication with the media or the disclosure of information without authorization– see the MOD’s Defence Council General Instructions 29^th October 2004 Gen 200/2004 – section 1 paragraph 6. It knew nothing of her dealings with the press which had no benefit at all for the Ministry. There was no direct connection between the information which she did have as part of her job and the information concerning the Claimant. There would be far reaching consequences if an employer was simply to be liable because an employee had leaked information which she or he came across during their work.

I agree with Ms Michalos that Ms Jordan-Barber’s job simply did not involve any direct dealings with the press. She may have contributed to the drafting of briefings to Ministers and the discussion of ‘lines to take’, but that was significantly different than direct contact with the media. I agree that it was a stretch too far to say that her job required her to act as an ‘information dealer’.

But the broad approach to the nature of her job cannot stop there. She worked in a security sensitive environment. She had Developed Vetting clearance which allowed her to have access to information up to the Top Secret classification. With this came obligations. Ms Michalos referred to the Defence Council Instruction. Ms Jordan-Barber had signed documentation which reminded her of her obligation to maintain confidentiality in information whose disclosure had not been authorised. For someone who occupied such a sensitive position it is in my judgment appropriate to view her job as including the task to preserve that confidentiality.

I have found that Ms Jordan-Barber did disclose the personal information about the Claimant to Mr Kay. It is an obvious inference that she must have learned of that information in the course of her work. I can see no other way that it could have reached her. The Loose Minute was not addressed to anyone in J9, but J9 Pol/Ops PJOBS at least is likely to have been told about it because of their responsibility for Gibraltar and Mr Jessett recalled having some discussion with Ms McKeegan-Brown about the subject. Whether Ms Jordan-Barber learned of the information through gossip around the office or as a result of inquiries of her own would not matter. Either way the obligations of confidentiality would have been the same.

Of course, for the purpose of examining this issue, I must assume (contrary to my earlier finding) that Ms Jordan-Barber’s disclosure to Mr Kay was actionable at the suit of the Claimant. It is only if she committed a tort against him that any issue of vicarious liability could arise. But if that was the case, there is a clear and obvious connection between that wrong and that part of her job which required her to keep such information confidential.

If this was the case, then it would seem to me to be just to require the MOD to assume vicarious responsibility. This is not simply an example of the employment being the opportunity for the wrong to be committed. As part of her work, she needed to have access to security sensitive and confidential information. As part of her work she shared office space with the J9 Pol/Ops PJOBS team and was likely to learn other information in consequence. There is always an inherent risk that those entrusted with such information will abuse the trust reposed in them, but rather than this being a reason why vicarious liability should not be imposed, I think, on the contrary, it is a reason in its favour. True it is that Ms Jordan-Barber’s activity did nothing to further the MOD’s aims, it was carried on without their knowledge, and it received no encouragement from the MOD. What she did was prohibited. However, those features do not preclude vicarious liability (and Ms Michalos did not suggest they did). Notwithstanding them, if I had held that Ms Jordan-Barber had committed a tort (contrary to my findings), I would have concluded that that hypothetical tort would have been sufficiently closely connected with her job for it to be just for the MOD to be vicariously liable.

The Defendant argues that, if Ms Jordan-Barber misused the Claimant’s private information and if the MOD is vicariously responsible for her tort, the Claimant’s claim must nonetheless fail because any damage which he suffered was due to the publicity which the Sun gave to the story and this is not damage for which Ms Jordan-Barber was responsible.

Ms Michalos relied on several different bases for this contention.

Mr White supported the arguments of the MOD.

Mr Tomlinson submitted that I should reject these arguments.

I agree with Mr Tomlinson that Weld-Blundell v Stephens does not help the Defendant. Even if a claimant’s loss has been directly caused by a third party rather than the defendant directly, the issue is still whether that loss is too remote to be recoverable. The underlying test for remoteness in tort is whether such loss was reasonably foreseeable or the natural and probable consequence of the wrong (see for instance Overseas Tank Ship (UK) Ltd v Morts Dock Engineering Co Ltd (The Wagon Mound) [1961] AC 588 and Slipper v BBC [1991] 1 QB 283 CA which both referred to Weld-Blundell). Indeed in Weld-Blundell itself Lord Sumner distinguished the case of ‘persons acting as the defendant meant them to act or acting as the defendant must have foreseen they would’ (p.985) and Lord Wrenbury likewise distinguished the case of a third party whom the defendant expressly authorised to repeat a slander or where it could be inferred from the surrounding circumstances that the defendant anticipated and wished that the third party should repeat it (p.999).

However, it is wrong to say that there was no evidence that the Claimant’s removal and the reasons for it would have become public knowledge even if Ms Jordan-Barber had not leaked it.

In my judgment, the Defendant (and Third Party) are right to say that, even in the absence of the leak by Ms Jordan-Barber to the Sun, the fact of the Claimant’s removal from command and the reason for it would have become public knowledge anyway.

I also agree that neither the Claimant nor the MOD would have been able to prevent publication (had they learned in advance that this was planned). I have already held that the Claimant cannot show that he had a reasonable expectation of privacy in the information. That would have been fatal to his claim. I would in the alternative have held that the Sun would have succeeded in showing that any right of his under Article 8 would have to give way to the Sun’s right to publish under Article 10. I accept that (assuming it was known) the means by which the Sun came by the information would be a factor against the newspaper, but the other factors to which I have already referred in this judgment would decisively tip the Article 8 / Article 10 balance in NGN’s favour. It is not for me to speculate as to why the Claimant has not sued NGN as well as the MOD, but a concern that the publisher’s Article 10 right would prevail would have been well-founded.

The MOD (unlike the Claimant) would have been able to mount a distinct claim in breach of confidence against Ms Jordan-Barber and (I am prepared to assume) against NGN. However, it, too, would have faced a public interest argument. Attorney-General v Guardian Newspapers (No.2) shows that it would have had the burden of showing that disclosure would be contrary to the public interest. In all the circumstances, I do not consider it would have been able to discharge that burden.

It follows that I agree with Ms Michalos and Mr White that the Claimant cannot show the necessary causal links between the wrong on which he relies (even if it was otherwise maintainable) and the press publicity which caused the harm for which he seeks compensation.

Ms Jordan-Barber disclosed information about the Claimant to the Sun no later than 13^th December 2004. The Claim Form was issued on 4^th September 2014. Mr Tomlinson accepted that the claim was a claim in tort. By the Limitation Act 1980 s.2 an action in tort must be brought no later than 6 years from the date on which the cause of action accrued. The Defendant and Third party argued that the claim was therefore time barred.

However, Mr Tomlinson argued that the claim was not statute barred since it was only in 2013 that the Claimant learned that Ms Jordan-Barber had been NGN’s source. He argues that the Claimant is entitled in these circumstances to rely on s.32 of the Limitation Act 1980. This says (so far as relevant),

The phrase ‘any fact relevant to the plaintiff’s right of action’ has been considered on a number of occasions. In Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883 Sir Terence Etherton C summarised the principles at [49]

This has been described as the ‘statement of claim’ test i.e. facts which should be pleaded in the statement (now particulars) of claim – see Johnson v Chief Constable of Surrey ‘The Times’ 7 March 1984 CA Civ Div Transcript [1984] No. 84.

Mr Tomlinson argued that this was plainly a case where Ms Jordan-Barber had deliberately committed a breach of duty and, in the circumstances, her identity as the wrongdoer was not likely to be discovered for some time. He argued that it was essential to the Claimant’s cause of action that he be able to identify the employee who was the primary wrongdoer. Unless that was pleaded, it would not be possible to plead that the MOD was vicariously responsible for the wrong. Besides, the Claimant obviously could not have sued Ms Jordan-Barber until her identity was revealed in 2013. It would be anomalous if the claim against her was not statute barred, but the claim against her employer was. Mr Tomlinson further argued that s.14(1)(d) provided specifically that, for the purposes of the Limitation Act 1980 s.11 a person’s date of knowledge included, if it was alleged that the act or omission was of a person other the defendant, the identity of that other person. He submitted that this should be applied by analogy when deciding whether the identity of an employee was a fact relevant to the Claimant’s right of action for the purposes of s.32.

Ms Michalos and Mr White argued that s.14 was part of a specific regime for limitation where the claim was for personal injury. It was an adjunct to s.11 of the 1980 Act and this regime was distinct from that which applied in the present context. It had no value as an analogy. They argued that the precise identity of the employee for whom the defendant was vicariously responsible was not an essential ingredient of the Claimant’s cause of action against the MOD. It would have been sufficient for him to plead that it was to be inferred that the person who disclosed the information to the Sun (whoever it was) must have been an employee of the MOD. He would have had to provide particulars from which the inference could be drawn and have done so in sufficient detail that they were not vulnerable to a strike out. However, this was exactly what the Claimant himself had understood to be the case. In his witness statement he said ‘I did not give serious thought to how such confidential information about the EOI had reached the press. I mistakenly thought that it might have been leaked to the press by someone on board HMS Somerset who was directly involved in the investigation and the Defendant had then substantiated the story and briefed “against” me.’ His wife, Gail Axon, said in her witness statement that the Claimant had been deeply upset by the media coverage and by the thought that ‘(he believed) someone on HMS Somerset had betrayed that confidentiality by talking to the press.’ For the purposes of the police investigation into Ms Jordan-Barber, the Claimant had produced a table which showed how a number of features of the Sun’s story meant that it must have come from someone with access to MOD information. Even if he had not conducted that degree of analysis in 2004, it showed that ‘with reasonable diligence’ it could have been discovered from an early stage that the Sun’s source was an MOD employee. It was also a common feature of litigation that a claimant was dependent on disclosure or other aspects of the litigation process for proof of certain features of his claim. A claim would not be struck out where that was the case, nor, in those circumstances, would the running of time be postponed by s.32.

I agree with Ms Michalos and Mr White that s.14 is of no assistance in this case. The regime for limitation in personal injury claims is different and s.14 is part of that separate regime. There are similar features in s.14A for negligence actions which do not involve personal injury, but that too is immaterial for a claim which is not founded on negligence. I also agree with Ms Michalos and Mr White that the precise identity of the primary wrongdoer is not necessarily a fact relevant to a cause of action based on deliberate wrongdoing. If the claimant can properly plead that the tortfeasor was an employee and was acting in the course of his or her employment that would be sufficient. In Arcadia Sir Terence Etherton said at [51],

Certainly the reasons for the EOI and the reasons for the actions taken against the Claimant were known originally only to MOD employees. The difficulty with the Defendant and Third Party’s argument is that the evidence shows that, once the Claimant had been removed, it would have been acceptable for the officers who had complained of bullying to let their families know (see the agreed statement of Rear Admiral Snelson). Even if (contrary to my earlier conclusion) the Claimant had had a reasonable expectation of privacy in the information and, even if disclosure by a family member would have been wrongful, that would not have been a wrong for which the MOD was vicariously liable. Consequently, until the Claimant knew that Ms Jordan-Barber was the Sun’s source he was not in position to plead facts from which it could be inferred that the MOD was vicariously liable.

Nor, am I persuaded that on the facts of this case, the Claimant would at an earlier stage have been able to resist a strike out application on the basis that gaps in his case might be made good by disclosure. There is no evidence that, prior to 2013, disclosure by the MOD would have been likely to produce anything useful in identifying the Sun’s source. NGN, of course, knew the identity of its source. However, it cannot be said that ‘reasonable diligence’ would have required the Claimant to seek Norwich Pharmacal relief against NGN. The publisher would have been able to rely on Contempt of Court Act 1981 s.10, Article 10 of the ECHR and Goodwin v UK (1996) 22 EHRR 123 and resistance on those bases would very likely have been successful.

Ms Michalos and Mr White had a different argument. This was that the claim was essentially one for injury to reputation. As such it should be subject to the limitation period for claims in defamation. For these there was a 1 year limitation period – see Limitation Act 1980 s.4A. That could be extended - see s.32A. However, one of the matters which the Court was obliged to take into account was whether the Claimant had acted promptly after learning of the facts giving rise to a claim. In this case, the Claimant had learned of Ms Jordan-Barber’s role in April 2013, but had not issued his claim until September 2014 some 17 months later. In those circumstances no extension would be granted.

The issue as to whether a claim for misuse of private information is an abuse of process because it is essentially a claim for harm to reputation has been touched on in other cases (see in particular Hannon and Dufour v MGN [2014] EWHC 1580 (Ch) and Gulati v MGN Ltd [2015] EWHC 1482 (Ch)). The issue is not straightforward and, in view of the conclusions to which I have come, is not necessary to the resolution of the present claims for me to decide it in this case.

I have found that the Claimant did not have a reasonable expectation of privacy. In reaching that conclusion, I have taken into account the nature of the Claimant’s conduct and its consequences. In these circumstances, I do not think it useful to try to answer this separate question.

Since I have found that the Claimant’s claim does not succeed on the merits, there is no purpose in me considering whether it, or part of it, would otherwise have been an abuse of process.

This, too, is an issue which does not arise on the findings that I have made.

The Claimant did not have a reasonable expectation of privacy in any of the information in issue. Ms Jordan-Barber did not owe him (as opposed to the MOD) a duty of confidence. His claim therefore fails. Since the Defendant is not liable to the Claimant, no question of an indemnity by NGN arises.