Bull vDesporte

This is my open judgment in this privacy claim. There is also a full and unredacted judgment which is confidential to the parties.

This is a claim for misuse of private information and copyright infringement. The Claimant is Gareth Bull and the Defendant is Donna Desporte. In 2012 the Claimant and his then wife, Catherine Bull, won approximately £41 million on the National Lottery. Their win was the subject of considerable publicity. In due course the Claimant bought a villa in Tenerife, where at the time the Defendant ran a bar. The Claimant’s evidence is that he and his wife separated in or around 2016. In October 2016 the Claimant and Defendant met in Tenerife and shortly afterwards began a relationship which continued into 2017. During that period, they flew back and forth between Tenerife and the UK. The exact nature and intensity of that relationship is a matter of dispute between them, but it is agreed that it was a sexual relationship, that they were in regular communication, and that they attended a number of social functions together in Tenerife and the UK. By June 2017 at the latest the relationship had broken down.

Following the ending of the relationship the Defendant wrote and published a book entitled ‘Google Me No Lies’ (the Book). I will say more about the significance of the title later. The Book appeared first as an Amazon e-book and then in hardcopy form. It was first published in November 2017, and there were several subsequent editions. The title page bore a photograph of the Claimant and the Defendant and was captioned ‘The True Incredible Heartbreaking Amazing Story of a Survivor Featuring the Relationship with £41 Million Lottery Millionaire Gareth Bull’.

The claim for misuse of private information arises out of 36 passages in the Book which the Claimant alleges include private information about him and/or his family (the Information). They fall into four categories (as set out in the Particulars of Claim at [8] – [8.4]) and in this judgment I will refer to the relevant categories as follows:

The passages complained of are contained in a Confidential Annex to my full unredacted judgment, which the parties have. Plainly it would defeat the whole purpose of the privacy claim if they were to be published in this open judgment. The Defendant knows precisely what the Claimant is complaining of in his privacy claim. I am satisfied that these four general headings are sufficient to identify the subject matter of the claim so that the reader of this judgment can understand what issues are in dispute.

The copyright claim relates to the inclusion in the Book of four photographs said by the Claimant to have been taken by him and sent to the Defendant privately during their relationship in which he retains the copyright (the Photographs).

On 20 December 2017 an interim non-disclosure order (INDO) was made by His Honour Judge Moloney QC restraining publication of the Information.

In this action the Claimant seeks a permanent injunction restraining publication of the Information and the Photographs, as well as damages and other relief. The Claimant does not seek to prevent the Defendant from publishing the Book at all, but seeks to prevent her from publishing the identified passages which include the Information and also from publishing the Photographs.

Ms Desporte defends the claims on the following grounds. In respect of the misuse of private information claim, she denies that there was a reasonable expectation of privacy in relation to the Information and she denies that the Claimant’s rights under Article 8 of the European Convention on Human Rights (the Convention) are engaged. If that is wrong, she maintains that the Claimant consented to publication, and/or it is in the public interest to publish the Information. She says that the restriction on his privacy rights are outweighed by her right to freedom of expression under Article 10 of the Convention. In part, she says that the Information had to be disclosed in order ‘to put the record straight’ about the nature of her relationship with the Claimant which she believes he has mispresented. She also maintains that the Claimant ought to be denied an injunction because he delayed too long before obtaining the INDO following the publication of the Book in November 2017 and/or consented to its publication. In respect of the copyright claim, she maintains that she had the Claimant’s express or implied permission to use the Photographs and denies that the Claimant owns the copyright in them.

The Claimant was represented by Mr Bennett QC. Ms Desporte represented herself. I am grateful to her for the clear and, if I may say so, skilful way in which she presented her case orally and in writing.

At the outset of the trial I made an order pursuant to CPR r 39.2(3)(a) that parts of the trial take place in private and I also granted a reporting restriction order pursuant to s 11 of the Contempt of Court Act 1981. When making these orders I had regard to the principle of open justice and the need for derogations from open justice to be strictly justified. However, I was satisfied that to have held the whole trial in public would have defeated the object of the case, given that it includes a claim for misuse of private information and it was necessary during the trial to refer to that information: cf Khuja v TNL and others [2017] 3 WLR 351, [14]. Had the material in question been referred to in open court then the Claimant’s Article 8 rights would have been lost and the purpose of the claim defeated. In the event, most of the trial took place in public and I am grateful to the parties for conducting the hearing in such a way that that could happen.

Mr Bennett helpfully pointed out that CPR r 63.13 of the White Book, when read in conjunction with PD63 [16.1], stipulates that claims in copyright ‘must be started’ in

However, CPR r 63.13 only stipulates that a copyright claim must be ‘started’ in one of the named jurisdictions, not that it must be tried in one of them

In DMK v News Group Newspaper Ltd [2016] 1646 EWHC (QB) Warby J, whilst sitting in the Queen’s Bench Division (QBD), concluded that he had the power to make an order in regard to a Chancery claim. The application was made as a matter of urgency on a Saturday. The application also concerned a claim brought in the QBD. He summarised the law regarding his power to make an order in a Chancery Division claim thus:

“I am assigned to the Queen's Bench Division, and the Chancery Action is proceeding in a different Division, but I made the Inspection Order on the basis that I have power to do so, and it is just and convenient for me to do so. The divisions are for administrative convenience; the jurisdiction of the High Court is, in general, indivisible. Section 4(3) of the Senior Courts Act 1981 provides that “All the judges of the High Court shall, except where this Act expressly provides otherwise, have in all respects equal power, authority and jurisdiction.”

I am satisfied that it follows from this principle that there is no bar to a High Court Judge sitting in the QBD from trying a matter which would otherwise have been heard in the Chancery Division. It would be just and convenient, and further the overriding objective, to do so especially as this claim is very simple.

The Claimant and the Defendant both gave evidence and were cross-examined. A statement was also read from Julia Puddepha who is a friend of Ms Desporte’s. The following is a summary of the evidence and it contains such findings of fact as are necessary for the determination of the claims before me.

The Claimant’s evidence in chief is contained in his First Witness Statement of 15 December 2017 and his Fourth Witness Statement of 22 August 2018.

In January 2012 the Claimant and his then wife, Catherine, won £40,627,241 on the ‘Euromillions’ lottery. There was extensive publicity. Mr and Mrs Bull gave at least one press conference, and there were many newspaper articles about their win. Sometime later, in November 2014, there was a lengthy interview in The Telegraph newspaperin which they discussed the effect of their win on their work and home lives. The central thrust of the article was that although they had both given up work, and there had been some spending on new cars and holidays and the like, they had tried to preserve their former lives as far as possible by, for example, continuing to live in the same house in Nottinghamshire. They also discussed their two sons, Joel and Declan,

I move forward to 2016, which is when the events began with which I am concerned. The Claimant says that he separated from his wife in July 2016 and that in late 2016 to early 2017 he and she were in the early stages of planning their divorce such as the division of assets. He began divorce proceedings in June 2017; they obtained their decree nisi in August 2017, and the decree absolute in October 2017. I accept this evidence.

I come to late 2016. At the relevant time the Defendant ran a bar called ‘The Village’ in Puerto Colón, Tenerife. The Claimant met the Defendant at the end of October 2016 when he visited her bar with some friends. A few days later he asked her out for a drink. A sexual relationship began between the two of them at some point thereafter, although exactly when was a matter of dispute between them.

The Claimant’s case initially was that they first went out together on the night of 5 November 2016 but she did not stay overnight at his villa and they did not have sex. His case in his evidence in chief was that their sexual relationship did not commence until sometime in December when she visited the UK. However, in cross-examination he accepted they might have had sex on the first night they went out. His case is also that although he spent some nights with the Defendant in a hotel in Tenerife over the Christmas/New Year period of 2016/17, his parents were also staying, and he spent at least some nights at home with them. He accepted that he spent nights with the Defendant in Tenerife and England in early 2017 and attended social functions with her, including the BAFTAS in February 2017. He said that he had recently separated from his wife of 20 years and did not consider himself to be in a serious relationship with the Defendant and did not want at that time to become involved with someone else. He said he did not see it as a serious relationship and he did not regard the Defendant as his girlfriend, or he as her boyfriend. That said, he also made clear he was not sleeping with anyone else at the time.

The Defendant’s evidence in chief is principally contained in her First Witness

The Defendant’s case differed from the Claimant on the nature of their relationship. In summary, she said that their relationship was much more intense and committed that he was prepared to accept. Her evidence was that when she met the Claimant she was finalising her separation and divorce from her husband, and was cautious about starting another relationship, but that strong mutual feelings of attraction soon developed between them, as did their sexual relationship. Her case was she definitely did stay at his villa on the night of the 5 November and that they did have sex. She also put to him that they spent the period from 28 December 2016 and over the New Year together, and her case was that during that period in particular when she met his parents, they became very close physically and emotionally. There were also other disputes of fact, such as whether he told her he loved her; and whether he genuinely invited her to the BAFTAS in February 2017 as his guest, or whether he only did so because she effectively ‘invited herself’.

It is unnecessary in this claim to resolve each of these points of dispute. It is clear, and I find, that soon after the Claimant and Defendant first met they began a sexual relationship which lasted some months. It is also equally clear that their relationship was a full adult consensual relationship based upon genuinely mutual feelings of desire and affection. The contemporaneous Facebook Messenger messages between them show that he would call her ‘Ducky’ and ‘Babe’ (he denied using the latter term in conversation, but he certainly did so in the messages); she would also call him ‘Babe’, and that on at least one occasion she told him that she loved him. They regularly exchanged details of their day to day lives, where they were going and who they were seeing, and they would discuss travel and accommodation arrangements for trips to and from Tenerife. They would also exchange photographs (including many ‘selfies’). In short, their communications consisted of exactly the sort of friendly and affectionate correspondence one would expect to see between a couple who had recently become intimate and who were finding out about each other.

The Claimant was asked by the Defendant in cross-examination how he had regarded their relationship. He said that he had regarded them as having been ‘friends’. The Defendant strongly disagreed with that categorisation. I also disagree with it as an accurate description of their relationship, ifby it the Claimant meant there was an absence of any romantic affection or feelings on his part and that sex was simply a utilitarian transaction between them (or a ‘friends with benefits’ arrangement as I believe it is known in modern parlance). There plainly were romantic feelings on both sides. To the extent that they now have a different perception of how serious the relationship was, I consider this to be the fairly typical emotional response of a couple who have broken up in acrimonious circumstances. Both of them honestly believe that their perception of the relationship is the correct one.

The Claimant was asked how he had described the Defendant to his wife. He said that he had said that she was a friend but, importantly, he said that he had never denied the nature of his relationship with her, in other words, that it was a sexual one. As I have said, I do not accept as accurate the description of the Defendant as the Claimant’s ‘friend’ but I accept his evidence that his wife knew their relationship was a sexual one and that he did not mislead her about it.

Part of the Defendant’s case is that the Claimant deceived her about the state of his marriage to his wife, and that he induced her into a sexual relationship on the basis of those deceptions. The Claimant in his witness statement of 22 August 2018 at [27] specifically denied this allegation. I accept his evidence. The Defendant’s case to the contrary is entirely based on her own speculation about the state of the Claimant’s marriage.

There is no doubt that the Defendant enjoyed her social life with the Claimant which, because of his wealth, was marked by a degree of high living. However, I wish to emphasise my finding that the Defendant was motivated to have a relationship with the Claimant because of her genuine feelings of desire and affection for him. I reject any suggestion that she was seeking to benefit from the relationship financially. Indeed, the Claimant was quite clear in his evidence that she never asked him for money and that the only thing he gave her of any value was a signed boxing glove from a well-known boxer for the wall of her bar.

As I have said, the Claimant and the Defendant often communicated by Facebook Messenger. It is apparent from their messages that by late March 2017 the relationship was starting to run into problems. For example, on 19 March 2017 the Defendant sent a message to the Claimant, ‘I need to speak with you Gareth and NOT on the phone, so I am coming up there to [missing words] or you coming down here ??’. There were then further exchanges along similar lines.

In April 2017 there were various press reports that the Claimant had separated from his wife and moved out of the family home. As I have said, his evidence was that the separation had taken place sometime earlier in 2016.

The Claimant’s evidence is that the Defendant visited him in Derby in March or early April 2017 when she expressed concerns about some photographs of him that she had seen on social media, as well as other matters. He said that after that their messages became sporadic and that he did not contact her when he visited Tenerife in early June 2017. The messages show that she found about his trip and sent him a message telling him that what he had done was ‘very hurtful’. I find that the relationship permanently ended around this time.

On 14 June 2017, shortly after the Claimant had gone to Tenerife without telling the Claimant or contacting her, the Defendant sent the Claimant this message via Facebook, which is relevant to the issues I must decide (sic):

“… Want to tell you I am meeting someone today to start this book and article about ME not you, but there will be a little bit about you, don’t want to create issues for you. But I do want to write this. You can send someone legal if you like or see yourself not bothered. Anyway this will help me deal with mess, dont know what I have done to you to deserve being treated like this.” 33.In [1] of her witness statement of 21 August 2018 the Defendant said:

“In June 2017, I made the decision to start composing the memoirs of my life to date, further to the ending of my relationship with the Claimant, and a number of both incredible and traumatic life-changing events and to put the record straight pursuant to a number of false, misleading damaging lies and deceptions that were circulating about my relationship with the claimant and my previous relationships.”

Part of the Claimant’s case on public interest is that there is and was a need to ‘set the record straight’ about the nature of the relationship, because she believes the Claimant has misrepresented it. Her case is that she believed him to have described her in offensive terms to his friends. She put to him that she had to write the Book to correct the impression that she ‘was an escort or a whore’ which she said he had said to numerous people. She also said that the way in which the Claimant had described their relationship in his witness statements in these proceedings (including his witness statement in support of the INDO in December 2017) mischaracterised it in a similar light. For example, she said that the way in which the Claimant had described staying

The Claimant strongly denied any suggestion that he had disparaged the Claimant in the way which she alleged. He said he had never described her in the terms she suggested. He said that the way in which he characterised the relationship in his evidence is correct and accurate. He also denied having anything to do with the incident in the bar or being in any way responsible for the online comments.

I accept the Claimant’s evidence on this point. There is no evidence that he ever described the Defendant in disparaging terms to his friends or anyone else and I find that he did not do so. Indeed, the Defendant admitted in her evidence that she had no evidence that he ever called her a ‘gold-digger, whore, or escort’. It is not a fair or reasonable reading of his evidence to suggest that it was intended to, or does, portray the Defendant in the manner suggested. Nor is there any evidence on which I can find that the Claimant was responsible directly or indirectly for what his friend may have said in October 2017, and I find he was not. I accept that there was some sort of incident at the nightclub. But the hearsay evidence involved is far too slender for me to able to conclude that the Claimant said anyone of the things attributed to him. For example, the friend said the Claimant had denied having a sexual relationship with the Defendant. But he has never done so, nor could he sensibly have done so given the extensive social media contact between them which demonstrates the opposite. Nor is there a jot of evidence to support the Defendant’s suggestion that he was responsible directly or indirectly for the online postings.

The Defendant told me that the use on the Book’s cover of a picture of her and the Claimant, and the sub-title I have already quoted, was just ‘marketing’. I reject that evidence. Both things accurately reflected what the Book is very largely about and that is why the Defendant chose to use them. Indeed, the Book’s main subject is made clear in the few first few paragraphs. Chapter 1 is entitled ‘A Date With Destiny’. In the first paragraph the Defendant describes ordering coffee. Then, she wrote:

“Gazing up at the sky, which was white with dust and sand from the Calima, there was something medicinal and calming about the off-white shade of colour which gave me comfort and strength. It was a far cry from the many nights of champagne and passion spent with Gareth Bull.

It was sometimes so difficult when I was forced by necessity to have to retrace my steps, past the five-star hotels and villas where there had been so much intensity and electricity between us. How on Earth did I get myself into this position? How did I allow this man to have such an influence in my world and over my life! I was always so strong and so self-directed. But this relationship was different, the emotional, spiritual and sexual connection between us was extraordinary, almost supernatural! His charms seemed too smash straight through my firewall !! He had entered my system took control and there was nothing that I could do about it, all of my defences were down. But alas it was not always like this. In the beginning it was a very different story. I did actually once have control and management of this situation.”

The Book then continues for another 300 or so pages, the bulk of which is about the Defendant’s relationship with the Claimant. Then, in the third paragraph from the end of the final chapter the Defendant wrote:

“You could call it envy control. In terms of his personal relationship with females, well, there were, literally, hundreds of females, throwing themselves at him through Facebook and social media, all hoping for a knight in shining armour. But alas, I fear they will all be sadly disappointed. Gareth's human responses are no longer normal. They have changed with his environment and situation. And whilst I think he would like the attention of people messaging him, and chasing him I don't think he took any of these people seriously. He just played the game with them. Plenty more where you came from. Disposable and on with the next. On turnover, as I thought from the very beginning when I met him, which is why I walked away and did not want to get involved. He was obviously going to be trouble, a nightmare. With so many desperate women, throwing themselves at him. Who needs this stress? I didn't, and I really did try and walk away. But fate intervened, and took me down a different path. Always trust your initial gut feelings in these situations.”

I find that the Defendant’s message to the Claimant contained a misleading description of what she intended to write about in the Book. It does not merely contain a ‘little bit’ about the Claimant. The Book is very significantly about him and his relationship with her, although I accept that there are some parts which deal with other matters, such as the Defendant’s former relationships. Even on her own evidence (see [14] of her witness statement of 21 August 2018), 23 of the Book’s 38 chapters deal with the relationship or feature the Claimant. However, a brief perusal shows the Claimant also features in other chapters not identified by the Defendant (eg Chapter 38, the final chapter, part of which I have quoted above). Although the Book may not have been written when she sent the message on 14 June, I find that it was, from the outset, the Defendant’s intention to write a book which focussed primarily on the Claimant and her relationship with him, and that that is what she did. I also find that her decision to go to the press and to write the Book was prompted by her perception of how the Claimant had treated her. I hesitate to say that she did this out of revenge, but there is no doubt that felt that she had been wronged by him. Indeed, she expressly said so in the final sentence of her message.

The Claimant said in evidence that he saw this message and thought it was a hoax. He said that he did not think that the Defendant ‘would be interested’. However, he also said that he saw it as a threat about his privacy.

On 17 June 2017 an article was published in The Mirror newspaper headlined:

“My fling with married £41 million Lotto winner whose chat-up line was ‘Google me ! Google me!’”

This article was written at the instigation of the Defendant and with her co-operation. The story was picked up by other news outlets and the information within it was rereported many times all over the world. Because part of the Defendant’s case is that all of the Information complained about in this action has lost its private character because it is in the public domain as a consequence of this article, it is necessary to summarise its contents.

The article reported that the Claimant had ‘whisked [the Defendant] off her feet in a fling behind his wife’s back’ telling her to ‘Google him’ when she doubted he had won the lottery. (This is the explanation for the Book’s title). The article said here had been a ‘nine-month passionate fling’ and that he had ‘splashed out on her’. It said that the Claimant had been ‘desperate’ to keep their ‘romance’ from his wife. The Claimant was quoted as telling the Defendant that he and his wife were in the middle of a two-year separation and that his wife would ‘use’ the relationship against him if she found out. It reported how Catherine Bull had seen the Claimant and Defendant on television in the crowd at a high-profile boxing match in the UK, and that he had told his wife that he and the Defendant were just friends and that there had been ‘no sex’. The article quoted the Claimant telling the Defendant that he was still married but that he and his wife had split up. It then said that after their first night out together she had stayed for two nights at his villa. She said that she knew loads of millionaires and had not been after the Claimant for his money: ‘it was not the primary thing’. The Claimant told her that his wife had really hurt him and had left him twice since the Lottery win. There were further details about the Claimant and Defendant’s social life during their relationship. She said he had started to worry ‘about people knowing he was having an affair’ and that it might cost him money. She said she was not ‘an affair’. There were then details of how the relationship soured and he had ended up refusing her calls and messages. She said: ‘I’m really upset, I feel used and wounded, really wounded’. The article finished by quoting ‘a friend’ as saying that the Claimant had moved out of the marital home. Mrs Bull was quoted as having nothing to say. The Claimant said in evidence that he had been approached by a reporter a few days before but had declined to comment.

On 30 August 2017 the Defendant posted the following message on Facebook (sic):

“Legal Notice

Hi everyone as many of you are aware my book is now complete and being edited, proof checked and passing through legals it is not rocket science that when you are writing a true life story it involves writing about real life people and my relationships with them consequently to avoid unnecessary issues or attempts at injunctions, (which would fail in any event as if a statement is true then it is not defamatory, no matter how offensive or embarrassing it may seem) I have been advised to publish an open statement to allow anyone that thinks their privacy maybe unduly affected by the publication of any facts in my memoirs the opportunity to raise a request for an edit. Obviously we do not intend to delay publication and accordingly request that any requests for non disclosure or a specific set of facts or edits to be submitted for consideration up to and including 6th September 2017. Send your request by private message to this facebook account or by email to [the Defendant’s email address]”

The Claimant said that this ‘Legal Notice’ came to his attention, although he cannot now recall how. He referred the matter to his solicitors.

It is part of the Defendant’s case that because the Claimant took no steps to prevent publication of the Book, and only sought an injunction after it had been published, therefore he consented to its publication and/or is estopped now from seeking a permanent injunction. It is accordingly necessary to set out the correspondence which ensued following this ‘Legal Notice’. All quotations are as in the original.

On 28 September 2017 the Claimant’s solicitors wrote to the Defendant that they were instructed by someone ‘with whom you claim to have had a relationship’ who had requested that a review be undertaken of the Book ‘with specific reference to anything which may have been written about them’. They went on to request a copy of the manuscript.

The Defendant replied on 2 October 2017. She said that the deadline for edits had been 6 September 2017. She also said that she was ‘unable to advance your request without further particularity in respect precisely whom you represent’. Although the Defendant would not accept it when I put it to her, I conclude that when she received this email she knew very well who it was that the solicitors represented.

On 3 October 2017 the solicitors replied saying that they represented the Claimant and they again requested a copy of the manuscript.

The Defendant replied the same day, saying that the deadline for edits had passed and that the Claimant had been aware of the Book since early June and had been invited to make representations but had ignored the offer. She therefore declined to supply a copy of the Book. Further she said that:

“You may reassure your client that the factual content of this book in relation to himself, has already been published by others and is already available in the public domain worldwide.”

The Defendant made clear to me that this assertion was a reference to the June 2017 newspaper publicity which I summarised earlier. I find that this was a misleading statement by the Defendant. As she well knew, the Information in the Book had not been published in The Mirror article, or in any other article. It was not in the public domain and it was not available worldwide.

On 4 October 2017 Matthew Talbot, the Head of the Intellectual Property team at Howes Percival, wrote to the Defendant. He requested disclosure of the Book by 8

The Defendant replied the same day. She said:

“2.

As previously stated. The material facts in the book relating to your client is already public and known to the world further to publication in various national international newspapers around the world and online in June 2017. The book/extracts from it have already been published and made available online.”

She went on in her email to query the legal basis of the putative legal challenge, and concluded by asking whether ‘your client is denying the existence of the relationship we had together.’ Again, I find that the Defendant’s response was misleading and she must have realised that it was misleading.

Further correspondence between Howes Percival and the Defendant ensued, with Howes Percival requesting a copy of the Book and the Defendant declining to provide one. On 5 October 2017 she wrote:

“2.

You have requested full disclosure of my book in electronic form doing so at a very, very late stage, and in any event after material facts in relation to your client and myself, have already been published both Nationally and internationally, together with extracts of the book online. Your client having previously been invited to provide representation in personal through his elected legal adviser from as early as June 2017, and again in August 2017, these invitations were all ignored.

…

4.

Further to the above, I can confirm that it is physically impossible for me to supply with the full manuscript within those timelines stated, attached is an element of the book pertaining to your client which is currently available electronically online.”

For the reasons already given this was the third misleading statement by the Defendant.

The ‘element of the book’ which the Defendant referred to was a one page extract in which she described how she and the Claimant had been at the Hard Rock Hotel in Tenerife enjoying a drink by the pool when he spotted a couple from Mansfield who were friends of his and his wife’s. According to the Defendant, the Claimant became very anxious about being seen with her, and she asked him whether he had been lying about being separated from his wife and whether she was ‘an affair’. He denied both matters. The passage which the Defendant supplied did not contain any of the information which the Claimant complains about. Although it mentioned the Claimant, it was not representative of the sort of intimate details which the Claimant had included in the Book.

On 1 December 2017 Howes Percival sent the Defendant a letter before action. By then the Book had been published as an ebook via Amazon’s Kindle Store and the Claimant had obtained a copy and read it. The letter complained that ‘The Work contains a great deal of information, both real and fictitious, about our client’s private and family life’. The letter complained in particular about five categories of private information in the Book; these have since been refined into four categories for the purposes of this claim. The letter demanded inter alia that the Book be withdrawn from sale.

The Defendant replied on 2 December 2017. She contended inter alia that:

“… your client has been deceptive about his conduct and used the tools of deceit, and thus consequently it is in the public interest for the real truth to be disclosed.”

Howes Percival replied on 13 December 2017. They informed the Defendant that they would shortly be applying for an interim injunction and they supplied particulars of the pages complained of from the ebook edition. By then the Book had also been published in paperback. This was identical to the ebook version save that the page numbering was slightly different. This was also sold by Amazon.

On 20 December 2017 His Honour Judge Moloney QC (sitting as a judge of the High Court) granted the INDO and a reporting restriction order following an inter partes hearing at which the Defendant represented herself. Except in the circumstances specified, the injunction restrained the Defendant inter alia from publishing or communicating or disclosing any information or purported information contained in the Book or similar information concerning physical details of the sexual relationship between the Claimant and the Defendant; the Claimant’s relationship with and divorce from his former wife; the Claimant’s children; and the physical health of the Claimant. It provided, for the avoidance of doubt, that the further publication by or on behalf of the Defendant of the Book would be in breach of the injunction insofar as it contained any of the prohibited information.

On 3 January 2018 the Defendant published a ‘redacted’ version of the Book as an ebook and in paperback form. The redactions were not sophisticated. The Defendant merely changed the Claimant's name to ‘Gary Ball’ and the names of his ex-wife to ‘Claire’ and his eldest son to ‘James’. I note that the initials of the substituted names match those of the Claimant and his wife and son, and I conclude that that was done deliberately by the Defendant. The Information was still included. It is obvious that any reader of the redacted version could, with a few clicks on Google, discover that the £41 million lottery winner Gary Ball described by the Defendant was, in fact, the Claimant, Gareth Bull.

The redacted version was sold by Amazon but, as a result of letters sent by the Claimant’s solicitors, it was withdrawn from sale.

The Defendant then published what she called the ‘USA Edition’ of the Book. Despite its name, it was published in this jurisdiction and could be purchased here. In this version the Defendant replaced ‘Gary Ball’ with ‘John Smith’. The Information

I turn to the Photographs and to the evidence concerning the Claimant’s claim for copyright infringement. The claim involves the Photographs which were included in the initial hardcopy edition of the Book but not in the redacted version or the USA Edition. They consist of a photograph of a fireplace and three photographs of the Claimant.

The Claimant’s evidence is that the fireplace photograph is of his home in Mansfield that he rented following his separation from his wife. He says he took it in October 2016 and sent it to the Defendant by Facebook Messenger in December 2016. He says the three photographs of himself were ‘selfies’ taken on his mobile phone at various places in December 2016 (two photographs) and January 2017 respectively, and that they were sent to the Defendant by Facebook Messenger around the time they were taken. He says that the Photographs were sent as part of private conversations with the Defendant and that he never gave her permission to use the Photographs or publish them. In his oral evidence he said if the Defendant had asked whether she could use them he would have refused.

The Defendant’s evidence is that the Claimant gifted her the Photographs without any restriction on their use. She also suggested to the Claimant in cross-examination that the Photographs had been posted to his Facebook ‘wall’ (ie, published and available for viewing by his Facebook ‘friends’), and that the fireplace photograph had been taken by someone else.

I accept the Claimant’s evidence that he took the Photographs and sent them to the Defendant during private Messenger conversations. I find that he did not give her permission to use them, and I find that no such permission can be inferred from the circumstances in which they were sent, namely, private social media conversations between two people involved in an intimate sexual relationship.

During the trial the Defendant sought leave to call two witnesses namely Liz Nicholls, a winners’ advisor with the lottery operator Camelot, and the Claimant’s ex-wife Catherine Bull. She said Ms Nicholls could speak to the publicity surrounding the Claimant’s lottery win in 2012 and that there was a public interest in her giving evidence because public money was involved. She wished to call Mrs Bull in order ‘to clarify the true nature of what was going on’ in her marriage to the Claimant, as the Defendant put it.

Mr Bennett objected inter alia on the grounds that no witness statement or witness summary had been served for either witness and hence, by CPR r 32.10, neither witness could be called to give oral evidence without my permission. As to that, he pointed out that witness statements were to have been served by 22 August 2018 and that because the Defendant had not advanced any reason why she was not able to comply with that deadline, there was no good reason why the Defendant should be granted relief from sanctions on the Mitchell/Denton principles (see Mitchell v News Group Newspapers

I refused the Defendant’s application primarily for the reasons advanced by Mr Bennett. Also, it seemed to me that neither witness could have anything relevant to say, given the nature of the issues in the action.

I turn to the relevant legal principles. They are not controversial.

Article 8 of the Convention provides:

“Right to respect for private and family life

Where a court is considering a claim for misuse of private information it has to decide two issues, which should be kept separate. In McKennitt v Ash [2008] QB 73, [11] the two issues were described in the following terms:

“First, is the information private in the sense that it is in principle protected by article 8? If ‘no’, that is the end of the case. If ‘yes’ the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10 ?”

In Murray v Express Newspapers Limited [2009] Ch 481, [35]-[36] Sir Anthony Clarke

If this question is answered positively then the court has to go on to consider the second question. This requires the application of Article 8(2), and when freedom of expression is involved (as it is in this case, because the alleged misuse arose as a consequence of the publication of a book), the court must undertake a balancing exercise to decide whether in all the circumstances the interests of the owner of the private information (in this case, the Claimant) must yield to the right to freedom of expression conferred on the publisher (in this case, the Defendant) by Article 10.

How this balancing exercise is to be carried has been explained in a number of cases. In Re S (A Child) [2005] 1 AC 539, [17], Lord Steyn said:

“First, neither article (8 or 10) has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

In PJS v News Group Newspapers [2016] AC 1081, [20], Lord Mance summarised the relevant principles as follows:

“(i)

neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at [28] per Eady J, describing this as a ‘very well established’ methodology. The exercise of balancing article 8 and article 10 rights has been described as ‘analogous to the exercise of a discretion’: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 at [8].”

Also of assistance is Baroness Hale’s analysis in Campbell, supra, at [140]-[141], where she explained that when two Convention rights are in play ‘the proportionality of interfering with one has to be balanced against the proportionality of restricting the other.’ This involves:

“… looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.”

In conducting this balancing exercise, it is clear that it is not sufficient simply to consider whether publication is in ‘the public interest’ in some general sense. I must balance the public interest in favour of publication against the public interest in maintaining the right to privacy by reference to the specific facts in question and the nature of the public interest said to justify publication.

The vast majority of the passages which the Claimant complains of in this case concern alleged sexual activity with the Defendant. The cases show that where the publication concerns details of an individual’s private sex life then there is little or no public interest in publication.

In Mosley v United Kingdom [2012] EMLR 1, [114], the European Court of Human

In Couderc v France[2016] EMLR19, the Court said, at [100]-[101]:

“100.

The court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society: see Von

Hannover, cited above, para 65; MGN Ltd v United Kingdom(2011) 53EHRR5, para 143 and Alkaya v

Turkey (Application No 42811/06) (unreported) given 9 October 2012, para 35.”

101.

Thus, an article about the alleged extra-marital relationships of high-profile public figures who were senior state officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership: see Standard Verlags GmbH v Austria (No 2) (Application No 21277/05) (unreported) given 4 June 2009, para 52. Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership: see Von Hannover, cited above, para 65, with further references. The court reiterates in this connection that the public interest cannot be reduced to the public’s thirst for information about the private life of others, or to the reader’s wish for sensationalism or even voyeurism.”

PJS, supra, concerned an injunction restraining alleged private sexual activity by two well-known persons in the entertainment business. Having set out the passages quoted at [82] and [83], Lord Mance concluded at [24]:

“In these circumstances, it may be that the mere reporting of sexual encounters of someone like the claimant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under article 10 at all. But, accepting that article 10 is not only engaged but capable in principle of protecting any form of expression, these cases clearly demonstrate that this type of expression is at the bottom end of the spectrum of importance (compared, for example, with freedom of political speech or a case of conduct bearing on the performance of a public office). For present purposes, any public interest in publishing such criticism must, in the absence of any other, legally recognised, public interest, be effectively disregarded in any balancing exercise and is incapable by itself of outweighing such article 8 privacy rights as the claimant enjoys.”

I turn to the issue of truth and falsity. As I have said, there is a dispute between the parties as to precisely what occurred during their relationship. The Claimant denies the truth and/or accuracy of a lot of the Book including (but not limited to) some or all of the passages complained of, in particular those in Category (a). For example, as well as saying that the acts of sexual intercourse between him and the Defendant were far less frequent than she alleges, and that he does not recognise her depiction of them, he also says that some of the dialogue ascribed to him on other occasions has been made up by the Defendant in order to convey a depth of emotion between them which in his view was not present.

The truth or otherwise of allegedly private material is not relevant in a claim for its alleged misuse. What matters is whether there is a reasonable expectation of privacy in the information complained of, whether true or false. This was made clear by Longmore LJ in McKennitt, supra, [86]:

“The question in a case of misuse of private information is whether the information is private, not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry.”

More recently, in Cooper v Turrell [2011] EWHC 3269 (QB), [102], Tugendhat J said: “Damages for defamation are a remedy to vindicate a claimant's reputation from the damage done by the publication of false statements. Damages for misuse of private information are to compensate for the damage, and injury to feelings and distress, caused by the publication of information which may be either true or false.”

Drawing these threads together, in relation to the claim for misuse of private information, the principles which apply are as follows:

Copyright is a property right which subsists in, among other things, an original artistic work: s 1(1)(a) of the Copyright, Designs and Patents Act 1988. A photograph is an original artistic work irrespective of any artistic quality: s 4(1)(a).

In his capacity as the photographer, the Claimant is the first owner of the photograph: s11(1). As the owner of the copyright, the Claimant has the exclusive right to issue copies of the work to the public: s16(1)(b). The issue to the public of copies of the Photographs is restricted: s18(1).

chose not to deny the story when it was put to him prior to publication, this means that gave the Defendant permission to publish (or she was entitled to assume that he would not sue her if she did). She also argues that because the Claimant knew that the Defendant was going to publish a Book from June 2017 onwards but did not try to prevent her from doing so (at least until the application for the INDO on 20 December 2017), he consented/acquiesced to publication of the Information. She points in particular to a letter from the Claimant’s solicitors of 27 October 2017 in which they indicated they would wait for publication but reserved the Claimant’s rights to seek relief once they had seen the Book (‘… take such action as appropriate when he is aware of the content’) .

Overall, there has been quite a serious invasion of the Claimant’s privacy and personal autonomy. The principles set out by Mann J in Gulati, supra, at [229] are relevant here. There, he said, ‘The subject matter of the disclosure is not a rigid guide to the amount of compensation. However certain types of information are likely to be more significant than others.’