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Court of Appeal
McKennitt and others vAsh and another
[2006] EWCACiv 1714
2006 Nov 21, 22, 23; Buxton, Latham and Longmore LJJDec 14
Con�dential information � Disclosure � Public interest �
Defendant�s bookdisclosing details of claimant musician�s private
life � Author formerly closefriend of claimant �Whether breach of
con�dence �Whether violation of rightto privacy � Whether author�s
right to freedom of expression outweighingclaimant�s right to
private life � Whether court entitled to apply previousdecision of
European Court of Human Rights � Human Rights Act 1998 (c 42),Sch
1, Pt I, arts 8, 10
The claimant, a renowned musician who had sold millions of
recordingsworldwide, carefully guarded her personal privacy. The
defendant, who had been aclose friend of the claimant, wrote a book
on the claimant containing personal andprivate information about
her. The claimant issued proceedings in the High Court,founded on
alleged breaches of privacy or of obligations of con�dence, for
aninjunction to prevent the further publication of certain material
which, shecontended, she was entitled to keep private. The judge
upheld the claim and grantedan injunction preventing further
publication of a signi�cant part of the workcomplained of on the
ground that it constituted private information under article 8of
the European Convention for the Protection of Human Rights and
FundamentalFreedoms, as scheduled to the Human Rights Act 19981,
and that the claimant�s rightunder article 8 outweighed the
defendant�s right to freedom of expression underarticle 10 of the
Convention.
On the defendant�s appeal�Held, dismissing the appeal, that in
order to identify the rules of the English law
of breach of con�dence it was necessary to have regard to the
jurisprudence of articles8 and 10 of the Convention since the
articles were not merely of persuasive or parallele›ect but now
constituted the very content of the domestic tort; that, therefore,
thecourt was obliged to apply a previous decision of the European
Court of HumanRights, concerning the balance between articles 8 and
10, in preference to a decisionof the domestic Court of Appeal
which addressed the balancing exercise in thetraditional domestic
terms of breach of con�dence; that the general rule thatarticle
8was intended to ensure the development, without outside
interference, of thepersonality of each individual in his relations
with others, even in a public context,was not limited to cases
concerning media intrusion; that where the complaint was ofthe
wrongful publication of private information, the court initially
had to decidewhether the information was private in the sense that
it was in principle protected byarticle 8, and, if the answer was
��no��, that would be the end of the matter; that if,however, the
answer was ��yes��, the court had to ask the question whether the
interestof the owner of the information had to yield to the right
of freedom of expressionconferred on the publisher by article 10;
and that, accordingly, the judge hadmade noerror of principle in
applying such an approach to the facts and his assessment of
the
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the right to respect for hisprivate and family life . . .��
Art 10: ��(1) Everyone has the right to freedom of expression .
. . (2) The exercise of [thisfreedom], since it carries with it
duties and responsibilities, may be subject to such . .
.restrictions or penalties as are prescribed by law and are
necessary in a democratic society . . .for the protection of the
reputation or rights of others [or] for preventing the disclosure
ofinformation received in con�dence . . .��
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balance between articles 8 and 10 would not be interfered with
(post, paras 11, 26,36—42, 44—45, 58—59, 62—64, 81—83).
VonHannover v Germany (2004) 40 EHRR 1 applied.Woodward v
Hutchins [1977] 1 WLR 760, CA and A v B plc [2003] QB 195,
CA distinguished.Decision of Eady J [2005] EWHC 3003 (QB);
[2006] EMLR 178 a–rmed.
The following cases are referred to in the judgments:A v B plc
[2002] EWCA Civ 337; [2003] QB 195; [2002] 3 WLR 542; [2002] 2
All
ER 545, CAAttorney General v Guardian Newspapers Ltd (No 2)
[1990] 1 AC 109; [1988]
3WLR 776; [1988] 3All ER 545, HL(E)Bonnard v Perryman [1891] 2Ch
269, CACampbell v MGN Ltd [2002] EWCACiv 1373; [2003] QB 633;
[2003] 2 WLR 80;
[2003] 1 All ER 224, CA; [2004] UKHL 22; [2004] 2 AC 457; [2004]
2 WLR1232; [2004] 2All ER 995, HL(E)
Douglas v Hello! Ltd (No 3) [2005] EWCACiv 595; [2006] QB 125;
[2005] 3 WLR881; [2005] 4All ER 128, CA
Hellewell v Chief Constable of Derbyshire [1995] 1WLR 804;
[1995] 4All ER 473Interbrew SAv Financial Times Ltd [2002] EWCACiv
274; [2002] EMLR 446, CAJameel (Mohammed) v Wall Street Journal
Europe Sprl [2006] UKHL 44; [2007]
1AC 359; [2006] 3WLR 642; [2007] Bus LR 291; [2006] 4All ER
1279, HL(E)Kay v Lambeth London Borough Council [2006] UKHL 10;
[2006] 2AC 465; [2006]
2WLR 570; [2006] 4All ER 128, HL(E)M v Secretary of State for
Work and Pensions [2006] UKHL 11; [2006] 2 AC 91;
[2006] 2WLR 637; [2006] 4All ER 929, HL(E)Marckx v Belgium
(1979) 2 EHRR 330Plattform ��ffrzte f�r das Leben�� v Austria
(1988) 13 EHRR 204S (A Child) (Identi�cation: Restrictions on
Publication), In re [2004] UKHL 47;
[2005] 1AC 593; [2004] 3WLR 1129; [2004] 4All ER 683,
HL(E)Sciacca v Italy (2005) 43 EHRR 400VonHannover v Germany (2004)
40 EHRR 1Wainwright v HomeO–ce [2003] UKHL 53; [2004] 2 AC 406;
[2003] 3WLR 1137;
[2003] 4All ER 969, HL(E)Woodward vHutchins [1977] 1WLR 760;
[1977] 2All ER 751, CAX and Y v TheNetherlands (1985) 8 EHRR
235
The following additional cases were cited in argument:Galloway v
Telegraph Group Ltd [2004] EWHC 2786 (QB); The Times, 13
January
2005Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462;
[2005] QB 972;
[2005] 3WLR 281; [2005] 1All ER 30, CAInitial Services Ltd v
Putterill [1968] 1 QB 396; [1967] 3 WLR 1032; [1967] 3 All
ER 145, CAKhashoggi v IPCMagazines Ltd [1986] 1WLR 1412; [1986]
3All ER 577, CALion Laboratories Ltd v Evans [1985] QB 526; [1984]
3 WLR 539; [1984] 2 All
ER 417, CATheakston vMGNLtd [2002] EWHC 137 (QB); [2002] EMLR
398
APPEAL from Eady JThe claimants, Loreena McKennitt, Hampstead
Productions Ltd and
Quinlan Road Ltd, brought a claim in theHighCourt seeking
injunctive reliefagainst the defendants, Niema Ash and Purple Inc
Press Ltd. By a judgmentdated 21 December 2005 Eady J granted
injunctive relief preventing furtherpublication of awork describing
aspects of the �rst claimant�s life.
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The �rst defendant appealed, with the permission of the Court
ofAppeal, on the following grounds, inter alia. (1) The judge had
made anerror of law in deciding that the enjoined material was
con�dential and fellwithin article 8 of the European Convention for
the Protection of HumanRights and Fundamental Freedoms since: (i)
the experiences described wereshared by both the �rst defendant and
the �rst claimant, so that the �rstdefendant had property in the
information which should not besubordinated to that of the �rst
claimant; and (ii) the judge had wronglytaken account of Von
Hannover v Germany (2004) 40 EHRR 1, a casedecided by the European
Court of Human Rights, when considering thequestion of whether
article 8 was engaged. (2) The judge had made anerror of law in
deciding that the �rst defendant�s article 10 Conventionright to
freedom of expression was outweighed by the �rst claimant�sarticle
8 right to privacy since: (i) the judge had failed to respect the
�rstdefendant�s right to sell her own story; (ii) the judge had
failed to givesu–cient weight to the extent to which the enjoined
material was already inthe public domain; and (iii) the judge had
undervalued the public interest inthe disclosures contained in the
enjoined material, in the course of which hehad failed to follow
the guidance in A v B plc [2003] QB 195. (3) The judgehad made an
error in law in deciding that the �rst defendant was notjusti�ed in
revealing the private details about the �rst claimant on theground
that she had behaved in a dishonest and insincere manner whichwas
inconsistent with her public position on proper behaviour and
respectfor others. (4) Since the judge had found that certain parts
of the bookwere untrue, the �rst claimant had chosen the wrong
cause of action in thatshe should not have brought a claim for
breach of con�dence, but shouldhave brought the claim in defamation
instead.
A representative range of media organisations, including
TimesNewspapers Ltd, the Press Association and the British
Broadcasting Corpn,applied to intervene, but the Court of Appeal,
with the consent of thoseparties, stated that it would take note,
and asked the parties to take note, ofthe detailed submissions in
the application to intervene, and the authoritiesset out
therein.
On 21 November 2006, the Court of Appeal imposed
reportingrestrictions as follows:
��It is ordered: (1) that pursuant to CPR r 39.2(3)(a) this
hearing be inprivate whenever reference is to be made to any part
of the informationcontained in Appendix A to the order of Eady J
dated 21December 2005;(2) that pursuant to section 11 of the
Contempt of Court Act 1981 therebe no reporting of any matter
withheld from the public in theseproceedings; (3) that no person
may obtain a copy of any documentdisclosed by the parties or of any
document before this court or on thecourt records (including
statements of case, witness statements andtranscripts of evidence)
without the consent of the claimants, or, failingthat, the leave of
the court, and this shall be until further order of thecourt; (4)
that nothing in this order shall prevent a fair and accuratereport
of the judgment of Eady J dated 21 December 2005 or of
thesubmissions of the advocates for the parties in open
court.��
The facts are stated in the judgment of Buxton LJ.
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David Price, solicitor, and Korieh Duodu for the �rst
defendant.Celebrities should not be readily enabled to obtain
injunctions merely torestrain un�attering truths: see Khashoggi v
IPC Magazines Ltd [1986]1WLR 1412 and Lion Laboratories Ltd v Evans
[1985] QB 526.
The judge erred in construing and applying article 8 of the
Convention forthe Protection of Human Rights and Fundamental
Freedoms to the passagescomplained of in the �rst defendant�s book.
If proper regard is given toCampbell v MGN Ltd [2004] 2 AC 457 and
Douglas v Hello! Ltd (No 3)[2006] QB 125 it is clear that the
passages are not con�dential to the �rstclaimant.
The pre-existing relationship between the �rst claimant and the
�rstdefendant does not create an expectation of con�dence such as
to inhibit the�rst defendant from publication; and the matters
identi�ed as private arenot merely the �rst claimant�s experience
but also the �rst defendant�sexperience. [Reference was made
toWainwright v HomeO–ce [2004] 2AC406 and Woodward v Hutchins
[1977] 1 WLR 760.] When considering thequestion of whether article
8 is engaged A v B plc [2003] QB 195 should befollowed rather
thanVonHannover v Germany (2004) 40 EHRR 1.
The judge did not pay su–cient respect to, or apply, section
12(4) of theHuman Rights Act 1998, requiring that ��particular
regard�� be paid to thearticle 10 right. He further failed to
respect the right of the �rst defendant totell her own story: see
Av B plc [2003] QB 195. In considering the extent towhich the
public is entitled to receive information, the answer is
objectiveand cannot depend on the status of the defendant:
seeWoodward v Hutchins[1977] 1 WLR 760; Khashoggi v IPC Magazines
Ltd [1986] 1 WLR 1412;Theakston v MGN Ltd [2002] EMLR 398 and
Campbell v MGN Ltd[2004] 2 AC 457. Information that is already
known cannot claim theprotection of private life.
There is a legitimate public interest in the a›airs of the �rst
claimantbecause she is a public �gure; and where a public �gure has
misbehaved thepublic has a right to have the record put straight:
see Campbell v MGN Ltd[2004] 2AC 457.
The width of the rights given to the media by A v B plc [2003]
QB 195cannot be reconciled with Von Hannover v Germany 40 EHRR 1;
andEnglish courts should not apply Von Hannover�s case to the facts
of thepresent case because they are bound by A v B plc: see Kay v
LambethLondon Borough Council [2006] 2 AC 465, paras 43—45. The
rules as toprecedent in English domestic law apply to
interpretations of Conventionjurisprudence, and where the Court of
Appeal has ruled on the meaning orreach of a particular article of
the Convention a later division of the Court ofAppeal cannot depart
from that ruling simply on the basis that it isinconsistent with a
later or earlier decision of the European Court of HumanRights.
In the light of the judge�s �ndings that most, or all, of the
book�sallegations about the disputes between the �rst claimant and
the �rstdefendant are untrue, there can be no claim in breach of
con�dence.Whatever the position in defamation, the �nding that what
the �rstdefendant wrote is untrue constitutes a complete defence,
even though the�rst defendant�s case at trial was that the whole of
the book is true. Theprotection of article 8 is lost where it is
demonstrated that the matter isuntrue.
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Desmond Browne QC and David Sherborne for the �rst claimant.
Topursue a libel claim and then to pursue a claim in breach of
con�dence wouldcreate the very di–culties identi�ed inWoodward v
Hutchins [1977] 1WLR760: see Bonnard v Perryman [1891] 2 Ch 269 and
Greene v AssociatedNewspapers Ltd [2005] QB 972.
The judge correctly identi�ed the reach of article 8 and found
the relevantpassages to be con�dential: see Campbell v MGN Ltd
[2004] 2 AC 457 andDouglas v Hello! Ltd [2006] QB 125.
Von Hannover v Germany 40 EHRR 1 extends the reach of article 8
andshould be followed. [Reference was also made to Sciacca v Italy
(2005)43 EHRR 400, paras 27, 29.]
There is no error of principle in the instant case so that the
Court ofAppeal should not interfere with the decision: see Campbell
v MGN Ltd[2004] 2 AC 457 andGalloway v Telegraph Group Ltd [2004]
EWHC 2786(QB); The Times, 13 January 2005.
The judge was right to reject the �rst defendant�s case under
article 10.He correctly based himself uponCampbell v MGNLtd [2004]
2AC 457 andIn re S (A Child) (Identi�cation: Restrictions on
Publication) [2005] 1 AC593. He held that the con�dence was
��shared�� only in the sense that the�rst claimant had admitted the
�rst defendant to her con�dence, whichcon�dence the �rst defendant
knew should be respected. Accordingly, the�rst defendant has no
story to tell that is her own as opposed to being the�rst
claimant�s; and, even if she had, the right of the �rst defendant
has, onthe facts, to yield to the right of the �rst claimant.
Information that is already known cannot claim the protection of
privatelife, but it is not the case that once a person has revealed
or discussed someaspect of his life he has a greatly reduced
expectation of privacy in relation toany other information that
falls within that aspect. If information isprotected by a right of
privacy, it is for the individual concerned to decidehowmuch of it
should be published.
As to whether there is a legitimate public interest in the
a›airs of the �rstclaimant because she is a public �gure, the facts
are important: see InitialServices Ltd v Putterill [1968] 1 QB 396;
Lion Laboratories Ltd v Evans[1985] QB 526; Hellewell v Chief
Constable of Derbyshire [1995] 1 WLR804 andCampbell vMGNLtd [2004]
2AC 457. It remains unclear whethereither detriment or
embarrassment is required: see Attorney General vGuardianNewspapers
Ltd (No 2) [1990] 1AC 109.
In Von Hannover�s case 40 EHRR 1 the European Court of
HumanRights recognised the important role of the press in dealing
with matters ofpublic interest; but a distinction was drawn between
a watchdog role in thedemocratic process and the reporting of
private information about peoplewho, although of interest to the
public, were not public �gures.
Provided the matter complained of is by its nature such as to
attract thelaw of breach of con�dence a defendant cannot deprive a
claimant of hisarticle 8 protection simply by demonstrating that
the matter is in fact untrue.
Price replied.
The second and third claimants and the second defendant did not
appearand were not represented.
Cur adv vult
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14December. The following judgments were handed down.
BUXTONLJ
Background
1 I set out no more than is necessary to understand the issues
in theappeal. Much of what follows is taken largely verbatim from
the judgmentof Eady J [2006] EMLR 178, which was described by the
constitution of thiscourt that granted permission to appeal as
detailed and careful. The casebefore Eady J was heard in private.
The claim seeks to prevent the furtherpublication of certain
material, so this was a case where a public hearingwould have
defeated the object of that hearing, one of the cases for
privacythat is provided by CPR r 39.2(3)(a). The judge enjoined
further publicationof a signi�cant part of the work complained of.
He dealt with the problemof publicity in the course of litigation
by (if I may respectfully say so, veryskilfully), delivering an
open judgment that described the objectionablematerial in general
terms, but appended a con�dential appendix in which theactual
enjoined material was fully described.
2 Before us, an application was made to hear in private those
parts ofthe appeal that required reference to the material in the
appendix. Wegranted that application, for the same reason as the
judge had sat in private.However, we were able without undermining
the judge�s order to hear themajor part of the appeal, including
all of the legal argument, in public. Thatwas achieved by the care
exercised by Mr Price and by Mr Browne inpresenting their
arguments, and we are grateful to them for their skill
andco-operation in that respect.
3 The �rst claimant is Loreena McKennitt, a Canadian citizen,
who hasfor many years run a business around her composition and
performance offolk and folk-related music. She has sold millions of
recordings and hasfrom time to time toured various parts of the
world playing live concerts.The second and third claimants (who
play no active role in the proceedings)are Hampstead Productions
Ltd and Quinlan Road Ltd. These arecompanies incorporated under the
laws of Ontario which are owned andcontrolled by the �rst claimant.
The copyright in the musical and literaryworks comprised in her
songs, as well as that in the sound recordings of herperformances,
is owned by various corporate entities.
4 The proceedings are based upon alleged breaches of privacy or
ofobligations of con�dence, said to arise either by implication of
law or, insome instances, from express contractual provisions. The
case concerns thepublication in 2005 of a book Travels with
LoreenaMcKennitt: My Life as aFriend (��the book��). This was
written by the �rst defendant, Niema Ash,who was formerly a friend
of the �rst claimant. She and her long-termpartner, Tim Fowkes, had
often socialised with the �rst claimant andentertained her while
she was in England. Moreover, they had sometimesworked closely with
her in connection with her business here and abroadand accompanied
her on a contractual basis on one foreign tour inparticular. That
tour followed the release of an album in 1997 called ��TheBook of
Secrets��. It was to promote this album that a European andAmerican
tour took place in 1998, in connection with which the �rstdefendant
agreed to carry out the services of a merchandise supervisor andshe
was retained for that purpose by the second claimant company.
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5 The second defendant in these proceedings (which equally plays
noactive part in them) is a company called Purple Inc Press Ltd,
which wasincorporated in this jurisdiction in April 2005 for the
purpose of publishingthe book in question. The sole director is the
�rst defendant.
6 The nub of the �rst claimant�s claim is that a substantial
part of thebook reveals personal and private detail about her which
she is entitled tokeep private. That claim is brought against the
background that the �rstclaimant is unusual amongst worldwide stars
in the entertainment business,in that she very carefully guards her
personal privacy. The judge rightly sawthat to be a matter of great
importance, such as to require him to make�ndings about it at the
very start of his judgment. He said, at paras 6—8:
��6. Ms McKennitt has vehemently asserted in these proceedings
thatshe has always sought to keep matters connected with her
personal andbusiness life private and con�dential. It was con�rmed
in evidence beforeme that, whenever a press conference or interview
takes place, it isimpressed upon those concerned that inquiries
about her personal life arevery much o› limits. Indeed, it seems to
have been accepted by Ms Ash(at least on p 313 of her book) that
she protected her reputation and herprivacy �with the iron
safeguard of a chastity belt�.
��7. In so far as there have been exceptions to her primary rule
ofprotecting her privacy, Ms McKennitt has emphasised that she
hasoccasionally released some information which �she felt
comfortable with�,and in respect of which she was able to control
the boundaries herself.This has apparently occurred mainly in
connection with a charity whichshe founded and promoted in
connection with water safety and theprevention of boating
accidents. This followed a tragedy in 1998 whenher �anc� (together
with his brother and a friend) died in a drowningaccident in
Canada. She has accepted that, for these purposes, it issometimes
necessary to provide personal detail in order to bring home
topeople the risks inherent in sailing and the need to take
precautions. Thepersonal impact upon her highlights the dangers,
she believes, in a waythat could not be achieved by general and
impersonal safety warnings.When, in this connection, Ms McKennitt
has spoken about the death ofher �anc�, she has done so on a
controlled and limited basis with which,again, she �feels
comfortable�.
��8. Ms McKennitt, therefore, places at the centre of her
present claimthe proposition that her private life and indeed her
business a›airs areentitled to protection on the basis of a duty of
con�dence, and are not inthe public domain by reason either of her
fame in itself or of the limitedrevelations to which I have
referred.��
The course of the appeal
7 There is an extant appeal to this court in relation to the
judge�s costsorder, which this judgment does not address.
Otherwise, the judge refusedpermission to appeal against his
substantive order, and that refusal wasrepeated by a single Lord
Justice on paper. However, on an ex parteapplication by Mr Price
(who had by then taken over the matter, the �rstdefendant having
represented herself at, though not up to, the trial)permission to
appeal was granted, the Lord Justice who delivered thejudgment on
that occasion observing that ��this is an important and
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developing area of law where an appeal on these facts may help
to clarifyand de�ne some of the relevant principles even if it does
not alter theoutcome��. Possibly emboldened by that indication, the
argument in thisappeal has ranged widely, and certainly beyond the
narrow limits of the factsof the case. While necessarily addressing
some considerable part of thatargument, I will need later in the
judgment to bring us down to ground to theactual issues in this
case. And also, alarmed by what appeared to be on foot,a
representative range of media organisations, including Times
NewspapersLtd, the Press Association and the BBC, applied to
intervene. We suggestedthat that matter could be managed not by a
formal intervention but by ourtaking note, and asking the parties
to take note, of the detailed submissionsin the application to
intervene, and the authorities there set out. The mediaparties (as
I will refer to them) were good enough to agree to that course.
Wealso received a letter from the Publishers Association, which we
indicated tothe parties that we had read. We took those steps
without prejudice to thelaw or practice on intervention by
commercial as opposed to public or publicinterest parties, which
law and practice remains in a state of someuncertainty.
A taxonomy of the law of privacy and con�dence8 It will be
necessary to refer to the underlying law at various stages of
the argument, and it would be tedious to repeat such reference
more than isnecessary. Since the content of that law is in some
respects a matter ofcontroversy, I set out what I understand the
present state of that law to be.I start with some straightforward
matters, before going on to issues of morecontroversy. (i) There is
no English domestic law tort of invasion of privacy.Previous
suggestions in a contrary sense were dismissed by Lord
Ho›mann,whose speech was agreed with in full by Lord Hope of
Craighead and LordHutton, in Wainwright v Home O–ce [2004] 2 AC
406, paras 28—35.(ii) Accordingly, in developing a right to protect
private information,including the implementation in the English
courts of articles 8 and 10 of theEuropean Convention for the
Protection of Human Rights and FundamentalFreedoms, as scheduled to
the Human Rights Act 1998, the English courtshave to proceed
through the tort of breach of con�dence, into which
thejurisprudence of articles 8 and 10 has to be
��shoehorned��:Douglas v Hello!Ltd (No 3) [2006] QB 125, para 53.
(iii) That a feeling of discomfort arisesfrom the action for breach
of con�dence being employed where there wasno pre-existing
relationship of con�dence between the parties, but the��con�dence��
arose from the defendant having acquired by unlawful
orsurreptitious means information that he should have known he was
not freeto use: as was the case inDouglas v Hello! Ltd (No 3), and
also in Campbellv MGN Ltd [2004] 2 AC 457. Two further points
should however be noted.(iv) At least the verbal di–culty referred
to in (iii) above has been avoided bythe rechristening of the tort
as misuse of private information: per LordNicholls of Birkenhead
inCampbell�s case, para 14. (v) Of great importancein the present
case, as will be explained further below, the complaint here isof
what might be called old-fashioned breach of con�dence by way
ofconduct inconsistent with a pre-existing relationship, rather
than simply ofthe purloining of private information. Something more
now needs to be saidabout the way in which the rules laid down by
articles 8 and 10 enter Englishdomestic law.
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9 Most of the articles of the Convention impose negative
obligations onthe state and on public bodies. That accordingly
a›ects the content of thearticles and the obligations that they
create, which are obligations owed onlyby public bodies. When those
articles were introduced into English law bythe medium of the Human
Rights Act 1998, and recited in Schedule 1 to thatAct, that content
did not change and could not have changed. That is why,whatever the
structure adopted by English law for giving e›ect to theConvention,
most of the articles, since their content is restricted to
creatingobligations on public bodies, do not and cannot create
obligations owed byprivate parties in private law. Article 8 has,
however, always been seen asdi›erent; as, in this regard, has
article 11, freedom of assembly, on which thelatter see Plattform
��ffrzte f�r das Leben�� v Austria (1988) 13 EHRR 204,para 32. Not
in its terms, but as extended by jurisprudence, article 8imposes
not merely negative but also positive obligations on the state:
torespect, and therefore to promote, the interests of private and
family life.That means that a citizen can complain against the
state about breaches ofhis private and family life committed by
other individuals. That has beenConvention law at least sinceMarckx
v Belgium (1979) 2 EHRR 330, and aparticularly strong statement of
the obligation is to be found in X and Y vThe Netherlands (1985) 8
EHRR 235.
10 More di–culty has been experienced in explaining how that
stateobligation is articulated and enforced in actions between
private individuals.However, judges of the highest authority have
concluded that that followsfrom section 6(1) and (3) of the Human
Rights Act 1998, placing on thecourts the obligations appropriate
to a public authority: see per BaronessHale of Richmond in
Campbell�s case [2004] 2 AC 457, para 132; per LordPhillips of
Worth Matravers MR inDouglas�s case [2006] QB 125, para 53;and in
particular per LordWoolf CJ inAv B plc [2003] QB 195, para 4:
��under section 6 of the 1998 Act, the court, as a public
authority, isrequired not to act �in a way which is incompatible
with a Conventionright�. The court is able to achieve this by
absorbing the rights whicharticles 8 and 10 protect into the
long-established action for breach ofcon�dence. This involves
giving a new strength and breadth to the actionso that it
accommodates the requirements of those articles.��
11 The e›ect of this guidance is, therefore, that in order to
�nd the rulesof the English law of breach of con�dence we now have
to look in thejurisprudence of articles 8 and 10. Those articles
are now not merely ofpersuasive or parallel e›ect but, as Lord
Woolf CJ says, are the very contentof the domestic tort that the
English court has to enforce. Accordingly, in acase such as the
present, where the complaint is of the wrongful publicationof
private information, the court has to decide two things. First, is
theinformation 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 allthe circumstances, must
the interest of the owner of the private informationyield to the
right of freedom of expression conferred on the publisher byarticle
10? The latter inquiry is commonly referred to as the
balancingexercise, and I will use that convenient expression. I
take the two questionsin turn. Some aspects of the jurisprudence
overlap between the twoquestions, but it remains necessary to keep
the underlying issues separate.
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I have well in mind, in addressing article 8, the warning given
by LordNicholls in his speech inCampbell�s case [2004] 2AC 457,
para 21:
��in deciding what was the ambit of an individual�s �private
life� inparticular circumstances courts need to be on guard against
using as atouchstone a test which brings into account
considerations which shouldmore properly be considered at the later
stage of proportionality.Essentially the touchstone of private life
is whether in respect of thedisclosed facts the person in question
had a reasonable expectation ofprivacy.��
Article 8: was the information private?Background12 The judge
listed a large number of parts of the book that were said by
the �rst claimant to consist of private information. He refused
protectionfor many of them because he regarded their content as
��anodyne��, impreciseor already known to the public. In an
authority shown to us after argumenthad closed, M v Secretary of
State for Work and Pensions [2006] 2 AC 91,para 83, Lord Walker of
Gestingthorpe pointed out that interference withprivate life had to
be of some seriousness before article 8 was engaged. Thespirit of
that guidance was indeed respected by the judge in the analysis
justdescribed. It will be necessary to describe the remaining
matters, in respectof which the judge did grant injunctive relief,
with some particularity, butthe general nature of the information
sought to be restrained was indicatedby the judge at para 11:
��(i) Ms McKennitt�s personal and sexual relationships. (ii)
Herpersonal feelings and, in particular, in relation to her
deceased �anc�and the circumstances of his death. (iii) Matters
relating to her healthand diet. (iv) Matters relating to her
emotional vulnerability. (v) Thedetail of an unhappy dispute
between Ms McKennitt, on the one hand,and Ms Ash and Mr Fowkes on
the other, concerning moneys advancedto them by Ms McKennitt to
assist in the purchase of a property in1997 and the subsequent
litigation in the Chancery Division (which wassettled on the basis
of a Tomlin order without ever coming to a publichearing).��
13 I should say straight away that the last matter, which I
shall refer toas the property dispute, raises issues di›erent from
the other matterscomplained of, and I will deal with it separately
towards the end of thejudgment. The other parts of the book in
respect of which relief was grantedcan be identi�ed as follows, for
convenience repeating the numeration in theclaim, which was also
used by the judge. (i) Item 4: what the judge describes,at para 17,
as ��a rather intimate conversation between Ms McKennitt andMs Ash
(which would otherwise certainly not have been in the
publicdomain)��. (ii) Item 5: what the judge describes, at para 18,
as ��extensivereferences in the book to Ms McKennitt�s relationship
with her �anc�, whodied in the boating accident in 1998��. (iii)
Item 9: a detailed account ofevents at the �rst claimant�s cottage
in Ireland, and of the physicalarrangements there, including a
period when the �rst defendant andMr Fowkes did building work at
the cottage. (iv) Item 13: what the judgedescribed, at para 142, as
��intimate revelations�� about the state of the �rst
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claimant�s health after the bereavement described in (ii) above.
(v) Item 14:revelations about the �rst claimant�s fragile condition
during a visit toTuscany after the bereavement. (vi) Item 15:
discussion of terms andconditions of a contract entered into by the
�rst claimant with a recordingcompany. (vii) Item 34: an incident
in a hotel bedroom shared by the �rstclaimant and the �rst
defendant; and a report of a telephone conversation inwhich the
�rst claimant revealed the state of her health.
14 The nub of Mr Price�s argument in this part of the case,
based bothon the account given in the judgment and repeated above,
and also on themore detailed examination of the book that we
undertook in the private partof the hearing, was that the judge�s
�nding that all of the above was privateinformation went far beyond
anything previously decided. That, it wassuggested, could be seen
by comparison with the facts of cases likeCampbell�s case
andDouglas�s case. I am not at all sure that that argumentis
correct, even on its own terms. Campbell�s case concluded that
although itwas not, on the facts, private information that Ms
Campbell su›ered fromdrug addiction it was private information that
she was seeking treatment forthat addiction. Douglas�s case
concluded that unauthorised photographs ofa wedding were private
even though the couple were perfectly content,indeed contractually
bound, to allow authorised photographs of the sameevent to be
published. I would be hard pressed to say that the matters listedby
Eady J were less obviously intrusive into the �rst claimant�s life.
But thereis a much more formidable reason why this assault on Eady
J�s conclusionsmust fail. That is to be found in the nature of the
relationship between the�rst claimant and the �rst defendant, to
which I now turn.
A pre-existing relationship of con�dence15 Recent leading cases
in this area, such as Campbell�s case,Douglas�s
case, and the most recent case in the European Court of Human
Rights, VonHannover v Germany (2004) 40 EHRR 1, have wrestled with
the problemof identifying the basis for claiming privacy or
con�dence in respect ofunauthorised or purloined information: see
para 8(iii) above. There, theprimary focus has to be on the nature
of the information, because it is therecipient�s perception of its
con�dential nature that imposes the obligationon him: see for
instance per Lord Go› of Chieveley in Attorney General vGuardian
Newspapers Ltd (No 2) (��Spycatcher��) [1990] 1 AC 109, 281a.But,
as Lord Go› immediately goes on to say, in the vast majority of
casesthe duty of con�dence will arise from a transaction or
relationship betweenthe parties. And that is our case, which
accordingly reverts to a moreelemental inquiry into breach of
con�dence in the traditional understandingof that expression. That
does not of course exempt the court fromconsidering whether the
material obtained during such a relationship isindeed con�dential;
but to inquire into that latter question without payingany regard
to the nature of the pre-existing relationship between the
parties,as the argument for the �rst defendant in this court
largely did, is unlikely toproduce anything but a distorted
outcome.
16 The judge made substantial �ndings of fact as to the nature
of therelationship between the �rst claimant and the �rst
defendant, and theexpectation of con�dence that that created. None
of this was challenged onappeal, nor could it have been. Because of
the importance of this aspect ofthe case I set out part of the
judge�s account, at paras 71—74:
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��71. It is also clear from a number of quite explicit passages
in thebook that Ms Ash realised that substantial parts of it, at
least, would fallwithin the scope of a reasonable expectation of
privacy or a duty ofcon�dence. Mr Browne drew a number to my
attention. At the beginningof the book, for example, Ms Ash
actually describes an �intimaterelationship of almost 20 years with
an un�edged small town girl�. Shealso announces to readers that she
will be �releasing personality frailtiespreviously concealed in the
protective cocoon of anonymity�. It isobvious that she was only
able to do so by reason of the �intimaterelationship�.
��72. On p 18, Ms Ash records that Ms McKennitt �con�ded to
me�information about her London friends�which she then proceeds
toreveal. Likewise, on p 84, she sets out another piece of
information whichshe expressly states was �con�ded to me�. The
tit-bit in question may notbe of particular signi�cance, but it
does illustrate that Ms Ash was wellaware that some material was
imparted to her in the context of a closefriendship and that she
is, nevertheless, prepared to reveal it in order toattract readers.
The point is again emphasised on p 93, where she states,�She cared
for us and we cared for her. We were her closest friends andshe
knew she could count on our unquali�ed loyalty.� That is, of
course, afundamental aspect ofMsMcKennitt�s complaint.
��73. Similarly, on p 82, she refers to �my friend Loreena who
hadrevealed her innermost self to me; who had trusted me with
hervulnerability�. Two pages later, she describes herself and Mr
Fowkes as�Loreena�s close friends, [who] occupied a privileged,
unique position�.
��74. The degree of intimacy between the two women is
againemphasised on p 118: �We talked non-stop. No topic was
o›-limit.Loreena told me about boyfriend problems, musician
problems, o–ceproblems, plans for improving her Stratford
farmhouse, her o–ce, plansfor her next album . . .� On the next
page she refers to the �real essence ofour friendship�: �Our
closeness was tangible. Loreena would always bethere for me. I
would always be there for her. Our trust was implicit. I nolonger
required an exchange of blood to cement friendship. I felt ourbond
to be so special it was like something secret. Nothing
coulddiminish it.� ��
17 The judge added to his �ndings about the nature of the
relationshipand the �rst defendant�s perception of it, at para
90:
��I am quite satis�ed . . . thatMs Ash was only too aware, at
the time ofand prior to publication, that much of the content of
the book wouldcause concern and distress to Ms McKennitt because of
its intrusivenature. Accordingly, not only a reasonable person
standing in her shoes,butMs Ash herself would be conscious that she
was thereby infringing the�trust� and �loyalty� to which she
referred in the book. I shall consider thespeci�c complaints in due
course, although I need hardly add that it is noteverything in the
book which infringes privacy (and Ms McKennitt doesnot suggest
otherwise).��
18 The judge accordingly approached, and correctly approached,
hisconsideration of the passages complained of against the
background of apre-existing relationship of con�dence, known to be
such by the �rst
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defendant, while at the same time not assuming that that covered
everythingthat happened between the two women with the cloak of
con�dence. I willbrie�y review his �ndings on the items listed in
para 13 above, all of which�ndings are unassailable.
19 Item 4 concerned what the judge, at para 132, described as
��privateand intimate observations��: the �rst defendant must have
known that shewas not at liberty to broadcast them to the
world.
20 Item 5 deals with the �rst claimant�s relationship with her
�anc� andthe outcome of his death in 1998. The judge, at para 133,
described thepassages in the book as ��remarkably intrusive and
insensitive��. Having hadthe bene�t, if that is the right word, of
reading the whole of the book�streatment of this subject, I would
think that the judge�s characterisation was,if anything,
restrained.
21 Item 9was addressed by the judge at paras 135—136:
��135. Item 9 concerns Ms McKennitt�s Irish cottage. It is not
her onlyhouse, but it is nevertheless a home. That is one of the
matters expresslyaddressed in article 8(1) of the Convention as
entitled to �respect�.Correspondingly, there would be an obligation
of con�dence. Evenrelatively trivial details would fall within this
protection simply becauseof the traditional sanctity accorded to
hearth and home. To describe aperson�s home, the d�cor, the layout,
the state of cleanliness, or how theoccupiers behave inside it, is
generally regarded as unacceptable. Toconvey such details, without
permission, to the general public is almost asobjectionable as
spying into the home with a long distance lens andpublishing the
resulting photographs.
��136. True it is that over �ve or six years Mr Fowkes was
engaged,from time to time, in renovation works at the cottage. Ms
Ash, too, did alot of hard work to make it habitable after Ms
McKennitt acquired it in1992. Some of the work was remunerated and
some was not. That seemsto me to make no signi�cant di›erence.
Whether one is allowed into aperson�s home professionally, to quote
for or to carry out work, or one iswelcomed socially, it would
clearly be understood that the details are notto be published to
the world at large.��
22 Criticism was made of the introduction to this passage, in
thatarticle 8 cases have tended to be concerned with the security
or stability ofresidence, rather than with privacy within the home.
But the judge clearlyspoke only by analogy, pointing out that it
should have been and wasobvious that events in a person�s home
cannot be lightly intruded upon; andin the event, as he said, at
para 138, ��it is intrusive and distressing forMs McKennitt�s
household minutiae to be exposed to curious eyes��. AndI would also
respectfully agree with his comparison with long
distancephotography, an exercise generally considered to raise
privacy issues. Ifanything, on the judge�s �ndings as set out in
para 17, above, the �rstdefendant knew a good deal better than
might a casual photographer thatpublication of the fruits of her
inspection of the cottage and of whathappened there was
unacceptable.
23 Item 13 concerns revelations about the state of the �rst
claimant�shealth, their intrusive nature being made the worse by
her fragility havingbeen associated with the bereavement. A
person�s health is in any event aprivate matter, as Campbell v MGN
Ltd [2004] 2 AC 457 demonstrated. It
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is doubly private when information about it is imparted in the
context of arelationship of con�dence. The judge was entirely right
to say, at para 142,that there is a reasonable expectation of
privacy in relation to such matters.The same is true of his
holding, at para 143, in relation to item 14.
24 Item 15 relates to the �rst claimant�s contractual dealings,
dealingsthat we were told, and the judge assumed, were not public
knowledge. If thecontractual documents had fallen o› the back of a
lorry and been picked upby a third party there might be some
question as to whether they were ofsuch a nature that he was bound
to hold them in con�dence. The documentsmight not come within the
category of self-evident privacy that was in themind of Laws J in
his famous example in Hellewell v Chief Constable ofDerbyshire
[1995] 1 WLR 804, 807. But there is no such issue in the caseof a
person who �nds out details of contractual terms because she is in
arelationship of con�dence with the contracting party. As the judge
said, atpara 144:
��There is a general discussion on p 26 [of the book] of the
contractualterms and of concessions made. Even though it is
general, it seems to methat MsMcKennitt is entitled to a reasonable
expectation of privacy as toher contractual terms. They are
certainly not forMs Ash to reveal.��
25 Item 34 was seen by the judge as more of a borderline case,
but hethought that both occasions were ones on which privacy was to
be expectedby the �rst claimant of the �rst defendant. He was
clearly entitled so to hold.
26 I would therefore respectfully agree with all of the
judge�sconclusions as to the reach of article 8. It may also be
added, as anindication that he did not approach the case with any
preconception, norany unreasonable hostility to the �rst defendant,
that there were manystories about the relationship between the two
women reproduced in thebook that the judge held not to have been
breaches of con�dence. I wouldonly comment that in some of those
cases I myself might have taken adi›erent view.
27 I must however now deal with a number of arguments
presentedby the �rst defendant that claim that the judge failed to
apply generalconsiderations that indicated that the items that he
identi�ed were notcon�dential to the �rst claimant. The principal
of these are the concept of��shared experience��; and the e›ect and
authority of the decision of this courtin Woodward v Hutchins
[1977] 1 WLR 760. I shall also need to saysomething about the
recent decision of the European Court of HumanRights in Von
Hannover v Germany 40 EHRR 1; and the impact on thisappeal of the
claim in contract.
Shared experience
28 The �rst defendant argued that all of the matters set out
above werenot merely the �rst claimant�s experience, but her own
experience as well.That gave her a property in the information that
should not be subordinated,or at least should not be readily
subordinated, to that of the �rst claimant.This argument is of
relevance to the �rst defendant�s claim under article 10,that she
is entitled to tell her own story that includes her various
experienceswith the �rst claimant, but as I understood it the
contention is also relied onto say that the information was not
con�dential in the �rst place.
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29 Some support was sought from passages in the judgment of
thiscourt in A v B plc [2003] QB 195. We shall have to return to
that case inmore detail when addressing article 10. It is su–cient
here to say that itconcerned a married professional footballer (A)
who sought to preventpublication by a newspaper (B) of his casual
sexual relations with twowomen (C and D). C and D had sold their
story to B. In the course of awide-ranging review of how a court
should handle such a claim, this courtsaid that the right of
protection of one party to a bilateral relationship mightbe a›ected
by the attitude of the other party, and continued, at para
43(iii):
��although we would not go so far as to say there can be
nocon�dentiality where one party to a relationship does not
wantcon�dentiality, the fact that C and D chose to disclose their
relationshipsto B does a›ect A�s right to protection of the
information. For theposition to be otherwise would not acknowledge
C and D�s own right tofreedom of expression.��
By the same token, it was suggested, the �rst defendant�s
decision that hershared relationship with the �rst claimant should
not be treated ascon�dential undermined the �rst claimant�s
contention that it wascon�dential.
30 On the facts of our case, as found by the judge, that
argument waswholly misconceived. First, the relationship between
the �rst claimant andthe �rst defendant, testi�ed to in many
places, and not least in the judge�scitations from the book set out
in para 17 above, was miles away from therelationship between A and
C and D. In the preceding paragraphI deliberately and not merely
conventionally described the latter as arelationship of casual sex.
A could not have thought, and did not say, thatwhen he picked the
women up they realised that they were entering into arelationship
of con�dence with him. Small wonder that Lord Woolf CJ saidAv B plc
[2003] QB 195, para 45:
��Relationships of the sort which A had with C and D are not
thecategories of relationships which the court should be astute to
protectwhen the other parties to the relationships do not want them
to remaincon�dential.��
Lord Woolf CJ would have been unlikely to say the same about
therelationship between the �rst claimant and the �rst
defendant.
31 Second, the judge made a series of factual �ndings about
therelationship that completely destroy this argument. While the
�rstdefendant had been involved in some of the matters revealed,
and (which israther di›erent) a spectator of many others, the book,
which is what thiscase is concerned with, is not in any real sense
about her at all. She gives ventto many complaints about the �rst
claimant; but the interest of those is thatthey are complaints
about the �rst claimant, and not at all that thecomplaints are made
by the �rst defendant. The judge made that clear intwo passages, in
paras 68 and 89 of the judgment:
��68 . . . It would appear that the fundamental purpose of the
book,which Ms Ash has described on its cover as �a must for every
LoreenaMcKennitt fan�, was to provide information to her admirers
which wouldnot otherwise be available. Much of the content of the
book would be of
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no interest to anyone, I imagine, but for the fact that
MsMcKennitt is thecentral character.��
��89. As I have already suggested, whatever Ms Ash�s true
appreciationof the situation may be, from her perspective, it is
di–cult for an outsiderto understand how the book would be of any
interest to the general readerif it were not for the fact that Ms
Ash is giving an account of her intimatedealings with a person who
is known to many millions of people,throughout the world,
interested in folk music and her music inparticular. Returning to
the Boswell/Johnson analogy, one maycharacterise the exercise to
that extent as largely parasitic. It is the centralrole of Ms
McKennitt, and the revelations about her, which provide themain
reason for people to acquire the book. It is, I have no doubt,
whyher name appears in the title.��
32 Those conclusions, which were neither challenged nor could
havebeen, con�rm that the matters related in the book were
speci�callyexperiences of and the property of the �rst claimant.
The �rst defendantcannot undermine their con�dential nature by the
paradox of calling in aidthe con�dential relationship that gave her
access to the information in the�rst place.
Woodward vHutchins
33 This case dates back to an era when the Convention had not
invadedthe consciousness of English lawyers. I bear well in mind
the warning ofLord Woolf CJ in A v B plc [2003] QB 195, para 9 that
��authorities whichrelate to the action for breach of con�dence
prior to the coming into forceof the 1998 Act . . . are largely of
historic interest only��. Nevertheless,Woodward v Hutchins [1977]
1WLR 760 has never been overruled; and itssubject matter has some
commonalty with our case, since it concerned thedismissed publicity
agent of a well-known group of singers who wished towrite a series
of articles dealing with their private lives and conduct.
34 The group failed to obtain an interlocutory injunction to
preventpublication. The decision was based on two grounds. First,
the only reasongiven by Lawton LJ, with whom Bridge LJ agreed in
full, was that to grantinterlocutory relief in a case where there
were concurrent claims in breach ofcon�dence and defamation would
or might undermine the rule in Bonnard vPerryman [1891] 2 Ch 269,
preventing interlocutory relief in a defamationcase where it is
proposed to justify. Lord Denning MR took the same view;but his
main reason was that articulated by Bridge LJ [1977] 1 WLR
760,765:
��It seems to me that those who seek and welcome publicity of
everykind bearing upon their private lives so long as it shows them
in afavourable light are in no position to complain of an invasion
of theirprivacy by publicity which shows them in an unfavourable
light.��
35 Eady J, at para 103, thought that the application in Woodward
vHutchins failed because the revelations were in the public
interest. It wouldhowever seem that the view of Lord Denning MR and
Bridge LJ was morefundamental than that, in that they thought that
in the circumstances theenjoined material was not con�dential at
all.
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36 Woodward v Hutchins has come in for a good deal of criticism,
ofwhich the point most relevant to our inquiry is that the court
was notreminded of the relevance of the contractual relationship
between the agentand his former employers. That largely deprives
the decision of any directauthority in or relevance to our case.
But there is another reason why in anyevent Woodward v Hutchins is
of no assistance to us. We were constantlyreminded, not least by
the �rst defendant, that all of these cases are fact-sensitive. I
have set out the judge�s �ndings of fact about the �rst
claimant�sattitude to publicity in para 6 above. That is very far
di›erent from the sortof conduct and attitude that, in the view of
Bridge LJ, would deprive aperson�s behaviour of the quality of
con�dence.
VonHannover v Germany37 We shall have to return to this
authority in connection with
article 10, but it also has some relevance to the reach of
article 8. There islittle doubt that Von Hannover v Germany 40 EHRR
1 extends the reach ofarticle 8 beyond what had previously been
understood, which is no doubtwhy the �rst defendant and, more
particularly, the media parties put beforeus a series of reasons
why we should be wary of the case. I am quite clearthat, for the
reasons already set out and as given by the judge, the �rstclaimant
can establish her position under article 8 without going
anywherenear Von Hannover�s case; but since the case was much
debated before us,and was referred to by the judge, it is necessary
to say something about it inrelation to article 8.
38 Princess Caroline of Monaco sought to prevent the publication
intwo German magazines of photographs of her indulging in what must
besaid to have been fairly banal activities in public or e›ectively
public places.The European Court of Human Rights held that by
refusing her relief theGerman courts had failed in their duty to
respect private life under article 8.The court�s most general
statement was at para 50 (cited by Eady J inpara 50 of his
judgment):
��Furthermore, private life, in the court�s view, includes a
person�sphysical and psychological integrity; the guarantee a›orded
by article 8of the Convention is primarily intended to ensure the
development,without outside interference, of the personality of
each individual inhis relations with other human beings. There is
therefore a zone ofinteraction of a person with others, even in a
public context, which mayfall within the scope of �private
life�.��
Based on that general principle, the European Court of Human
Rights held,at para 53, that ��In the present case there is no
doubt that the publication byvarious German magazines of photos of
the applicant in her daily life eitheron her own or with other
people falls within the scope of her private life��.
39 Eady J suggested, at para 58, that that approach was
consistent withthe assumption in Campbell v MGN Ltd [2004] 2 AC 457
that article 8protected a person�s reasonable expectation of
privacy. That is so in broadterms, but at the same time it is far
from clear that the House of Lords thatdecided Campbell�s case
would have handled Von Hannover�s case in thesame way as did the
European Court of Human Rights. Very extensiveargument and
discussion was seen as required before Ms Campbell wasable to
enjoin the publication of photographs of her in the public street,
and
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then only because of their connection with her medical
condition. Had theHouse had the bene�t of Von Hannover�s case a
shorter course might havebeen taken.
40 That does not however mean (to anticipate an argument that
willarise again under article 10) that the English courts should
not now giverespectful attention to Von Hannover�s case. The House
of Lords inCampbell�s case made no speci�c �ndings as to the
content of article 8 savein the very general terms extracted by
Eady J. As it is put in a work shown tous by the media parties,
Fenwick & Phillipson, Media Freedom Under theHuman Rights Act
(2006), p 764, ��the test propounded�of a reasonableexpectation of
privacy, of whether the information is obviously private�isto be
structured by reference to the article 8 case law��. It thus
remains forthe national court to apply that case law, as it
currently stands, to the factsbefore it. It was therefore certainly
open to Eady J to have regard to VonHannover�s case in relation to
the very di›erent facts of the present case.
41 Perhaps realising the force of observations such as the
foregoing, themedia parties, in particular, were most anxious to
persuade us that theEuropean Court of Human Rights went no further
in Von Hannover�s casethan to hold that the Princess�s privacy had
been invaded by a campaign ofmedia intrusion into her life, of
which the enjoined photographs were thefruit. The taking and
publication of the photographs would otherwise nothave been in
itself an invasion of privacy. They cited in support
someobservations of Fenwick& Phillipson at p 768 of their book,
though it is fairto say that the learned authors also say that that
analysis is not without itsdi–culties. The judge, at para 53, did
not accept that analysis, nor would I.While it is quite correct
that there is reference in the judgment of theEuropean Court of
Human Rights to media intrusion, it is not possible to saythat the
general statements of principle set out in para 38 above are
solimited. And Mr Browne was able to show us authority from the
EuropeanCourt of Human Rights decided since Von Hannover�s case
that appliesthose statements in situations that were not ones of
media intrusion. Ofthose, the most signi�cant is Sciacca v Italy
(2005) 43 EHRR 400, paras 27and 29 of the judgment of the European
Court of Human Rights applyingVon Hannover�s case to a case that
was not one of press harassment, andciting the jurisprudence
ofVonHannover�s case in entirely general terms.
42 I would therefore conclude that to the extent that it is the
�rstdefendant�s case that the judge should not have had regard to
VonHannover�s case when considering the �rst question of whether
article 8was engaged; and to the extent if at all that the issue
matters for thedetermination of this part of the case; that
complaint is unfounded.
The contractual obligations43 When Mr Fowkes and the �rst
defendant were embarking on the
tour referred to in para 4 above the �rst claimant caused them
to bepresented for signature with a written contract that set out
signi�cantobligations of con�dentiality. Mr Fowkes signed, the �rst
defendant did notdo so until the tour was long over. Eady J held,
at para 129, that the �rstdefendant well knew that she was bound in
any event by obligations ofcon�dentiality, and indeed had given
that as her reason for not signinganything. To the extent that it
matters, it would appear that, by going on thetour and continuing
in employment and association with the �rst claimant
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when, as the judge found, she well knew of the contractual
terms, the �rstdefendant adhered to those terms: and I would be
prepared to read the judgeas having so found. But the reality of
the matter was, as the judge said atpara 130, that the provisions
of the written contract did not add much to theobligations that the
�rst defendant owed in equity by reason of the closenessof her
personal relationship with the �rst claimant.
44 I revert to the matter directly in issue. The judge was right
to holdthat the �rst claimant had succeeded in demonstrating that
the matters thathe enjoined fell under article 8. I must therefore
now go on and consider the�rst defendant�s argument that her
article 10 rights of expression in respectof those matters
outweighed that article 8 protection.
Article 10: the balancing exercise
The role of this court45 Despite the very extensive analysis of
the facts and issues that the
speeches contain, the ratio of the majority of the House of
Lords inCampbell v MGN Ltd [2004] 2 AC 457 appears to have been
that, in theabsence of an error of principle on his part, the Court
of Appeal should nothave interfered with the trial judge�s
assessment of the balance betweenarticles 8 and 10: see per
Baroness Hale, at para 158, and Lord Hope, atparas 87 and 101,
together with Lord Hope�s criticism of the unreality of theapproach
of the Court of Appeal, at para 99, the latter view being
endorsedby Lord Carswell, at para 165 of his speech. That approach
is, with greatrespect, plainly correct. It was properly, albeit
inevitably, adopted byMr Price. The very short answer to this part
of the appeal is, therefore, thatthe judge indeed made no error of
principle, and therefore his conclusionrejecting the �rst
defendant�s case under article 10 must stand. However,lest that
seems too bloodless a resolution of the disputes, and in order
todemonstrate that the judge indeed made no error of principle, I
will descendinto somewhat greater detail.
The judge�s methodology46 In a passage headed ��A need to
balance Convention rights�� the
judge, basing himself on Campbell�s case and on In re S (A
Child)(Identi�cation: Restrictions on Publication) [2005] 1 AC 593,
set out theprinciples to be applied when article 8 rights were
relied on to restrainpublication. No criticism was made of the
formulation or the relevance ofthose principles, nor could it have
been made. The judge�s principles were:(i) neither article has as
such precedence over the other; (ii) where con�ictarises between
the values under articles 8 and 10, an ��intense focus��
isnecessary upon the comparative importance of the speci�c rights
beingclaimed in the individual case; (iii) the court must take into
account thejusti�cations for interfering with or restricting each
right; and (iv) so too, theproportionality test must be applied to
each.
47 Three comments may be made. First, it was a recurrent
complaint ofthe �rst defendant that the judge had not paid respect
to or appliedsection 12(4) of the 1998 Act, which requires
��particular regard�� to be paidto the article 10 right. But from
his statement of the principles the judgeclearly had in mind what
was said by Lord Steyn in In re S (A Child) atpara 17, that neither
article 8 nor article 10 ��as such�� has precedence over
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the other. That guidance bound him, as it binds us. Second, it
is well worthnoting that one of the cases speci�cally mentioned in
article 10(2) ispreventing the disclosure of information received
in con�dence.
48 Third, the �rst defendant complained that the judge,
whenaddressing the individual items of which complaint is made, had
not thenapplied the balancing test separately to each one of them.
But that con�ictswith what the judge said, at para 67:
��I need naturally to consider each of the passages in the book
singledout for complaint separately, not only to decide whether in
each case thethreshold test for privacy is passed (that is to say,
whether or not therewould be a reasonable expectation of privacy),
but also to consider, ifthat initial test has been satis�ed,
whether any other �limiting factor�comes into play such as public
domain or public interest.��
The suggestion that the judge, having so directed himself,
needed none theless to repeat that direction as a mantra every time
he came to a speci�c issueis quite unreal. And when signi�cant
issues in relation to article 10 did arisein a particular instance
those issues were addressed by the judge separatelyfrom the general
guidance that he had given himself.
49 However, I need to address some general complaints raised by
the�rst defendant. Those were that the judge had not respected the
right of the�rst defendant to tell her own story; a complaint that
the judge had not givensu–cient weight to the extent to which
information in the book was alreadyin the public domain; and a
complaint that the judge had undervalued thepublic interest in the
disclosure that the �rst defendant wished to make, inthe course of
that analysis failing to follow the binding guidance of this
courtinAv B plc [2003] QB 195.
The �rst defendant�s right to tell her own story50 A concern
that the �rst defendant might have been deprived of her
article 10 right to tell her own story was one of the matters
that weighedwith the court that was persuaded to grant permission
to appeal. The pointfeatured heavily in the �rst defendant�s
argument, strong reliance beingplaced on the observation inAv B plc
[2003] QB 195, para 11(xi) that:
��the fact that the con�dence was a shared con�dence which only
one ofthe parties wishes to preserve does not extinguish the other
party�s rightto have that con�dence respected, but it does
undermine that right.��
Based on that, the argument then moved to the striking
proposition that thejudge should have held that the �rst claimant�s
article 8 rights, if any, were tobe subordinated to the article 10
rights of the �rst defendant.
51 That argument again completely ignores the judge�s �ndings of
fact.He held that the con�dence was ��shared�� only in the sense
that the �rstclaimant had admitted the �rst defendant to her
con�dence, whichcon�dence the �rst defendant knew should be
respected: see para 16 above.As a result, the �rst defendant had no
story to tell that was her own asopposed to being the �rst
claimant�s: see paras 30—31 above. And, even ifthat were not so, it
needs no intense focus to conclude that on the facts theright of
the �rst defendant must yield to the right of the �rst
claimant.
52 A major part of the �rst defendant�s article 10 case thus
fails. Nor,for the record, was it at all fair to the judge to say
that he had simply ignored
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that article 10 right. He devoted a section of his judgment to
the issue, atpara 77, though he did not express himself in quite
the terms set out above.
The public domain
53 It is perhaps inevitable that, although the inquiry is now
underarticle 10, it still tends to be conducted in the traditional
terms of the Englishlaw of con�dence. As we shall in due course
see, that is particularly the casein A v B plc. But the general
principle is no doubt correct in both cases, thatinformation that
is already known cannot claim the protection of privatelife. Mr
Price however advanced a striking extension of that principle,
thatonce a person had revealed or discussed some information
falling within aparticular ��zone�� of their lives they had a
greatly reduced expectation ofprivacy in relation to any other
information that fell within that zone. Thisargument was used in
particular in respect of the �rst defendant�s revelationsabout the
�rst claimant�s health and her distress at the death of her
�anc�.The material said to contain revelations by the �rst claimant
falling withinthe same zone were remarkably sparse, which is in
itself an indication ofhow protective the �rst claimant has been of
her privacy. The judge dealtwith the argument in these terms, at
paras 79—80:
��79. . . . Ms Ash produced a number of articles on the basis of
whichshe argued that, at least in certain respects, Ms McKennitt
had revealedaspects of her personal life and beliefs to the general
public. She chose tocon�ne her submissions to a limited number of
articles, partly for reasonsof time, although it is reasonable for
me to proceed on the basis that sheselected the examples which she
thought best illustrated her point. If thatis so, I did not �nd the
submission very compelling in the light of thematerial contained in
the book. Conversations with, or behaviour in thepresence of, close
personal friends would appear to me to be signi�cantlydi›erent from
the sort of material revealed by Ms McKennitt in the past.Also, as
I have already pointed out, there is in this context a
signi�cantdi›erence between choosing to reveal aspects of private
life with whichone feels �comfortable� and yielding up to public
scrutiny every detail ofpersonal life, feelings, thoughts and
foibles of character.
��80. In any event, it is important that a large proportion of
the materialMs Ash relied upon was speci�cally revealed by Ms
McKennitt in thecontext of her attempts to promote water safety and
to support the Cook-Rees Memorial Fund. A classic example is
provided by an interview inMay 1999 with the journal �Le Lundi�. It
is somewhat surprising thatMs Ash should think that this carefully
measured, and no doubt in itselfdistressing, exposure of her own
feelings in a particular context shouldgive her the right to reveal
at considerable length what Mr Brownedescribed as �her pitifully
grief-stricken reaction to the death of [her�anc�], his brother and
a friend�. It goes on for some eight pages. One�sreactions and
communications to a friend in the immediate aftermath ofpersonal
bereavement are surely a classic example of material in respectof
which there would a �reasonable expectation� that one�s privacy
wouldbe respected.��
54 I respectfully agree. It was cruelly insensitive to use the
�rstclaimant�s promotion of the Cook-Rees fund, and her explanation
of her
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reasons for setting up the fund, to suggest that she had thereby
opened upwhole areas of her private life to intrusive scrutiny.
55 Mr Price expressed concern at the judge�s view that a person
canlimit publication to what he wishes to be published. But, with
respect, thejudge seems to me to have been completely right. If
information is myprivate property, it is for me to decide how much
of it should be published.The ��zone�� argument completely
undermines that reasonable expectation ofprivacy. Mr Price�s real
concern was, I think, not with the judge�s view ingeneral terms,
but with the possibility that he thought to be contained withinit
that a public �gure could censor or control what was published
aboutthem. That raises questions of a di›erent order, to which I
now turn.
The public interest: and the �rst claimant as a public �gure56
One might instinctively think that there was little legitimate
public
interest in the matters addressed by the book, and certainly no
public interestsu–cient to outweigh the �rst claimant�s article 8
right to private life. Thatis what the judge thought and, as
already pointed out, in the absence of errorof principle his view
will prevail. That conclusion was contested under thishead in two
respects, which it is necessary to keep separate. First, there wasa
legitimate public interest in the a›airs of the �rst claimant
because she wasa public �gure, and for that reason alone. Second,
if a public �gure hadmisbehaved, the allegation in the present case
being of hypocrisy, the publichad a right to have the record put
straight. The parallel for that argumentwas the case of Ms
Campbell, who could not retain privacy for the fact thatshe was a
drug addict because she had lied publicly about her condition.
57 The �rst of these arguments involves consideration of two
recentauthorities, already introduced, Von Hannover v Germany 40
EHRR 1 andAv B plc [2003] QB 195, to which I must now return.
VonHannover v Germany58 There is no doubt that the European
Court of Human Rights has
restated what were previously thought to be the rights and
expectations ofpublic �gures with regard to their private lives.
The court recognised theimportant role of the press in dealing with
matters of public interest, and thelatitude in terms of mode of
expression there provided: 40 EHRR 1, para 58.But a distinction was
then drawn between a watchdog role in thedemocratic process and the
reporting of private information about peoplewho, although of
interest to the public, were not public �gures. TheEuropean Court
of Human Rights said, at paras 63—64:
��63. The court considers that a fundamental distinction needs
tobe made between reporting facts�even controversial ones�capable
ofcontributing to a debate in a democratic society relating to
politicians inthe exercise of their functions, for example, and
reporting details of theprivate life of an individual who,
moreover, as in this case, does notexercise o–cial functions. While
in the former case the press exercises itsvital role of �watchdog�
in a democracy by contributing to �impart[ing]information and ideas
on matters of public interest� it does not do so inthe latter
case.
��64. Similarly, although the public has a right to be informed,
whichis an essential right in a democratic society that, in certain
special
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circumstances, can even extend to aspects of the private life of
public�gures, particularly where politicians are concerned, this is
not the casehere. The situation here does not come within the
sphere of any politicalor public debate because the published
photos and accompanyingcommentaries relate exclusively to details
of the applicant�s private life.��
59 There is more in the same sense. If we follow in this case
theguidance given by the English courts, that the content of the
law ofcon�dence is now to be found in articles 8 and 10 (see para
10 above), then itseems inevitable that the �rst defendant�s case
must fail. Even assuming thatthe �rst claimant is a public �gure in
the relevant sense (which propositionI suspect the European Court
of Human Rights would �nd surprising), thereare no ��special
circumstances�� apart from the allegation of hypocrisy dealtwith in
the next section to justify or require the exposure of her private
life.But the �rst defendant argued that English courts could not
follow or applyVon Hannover�s case to the facts of the present case
because we were boundby the contrary English authority of A v B plc
[2003] QB 195. Thate›ectively required the �rst claimant�s private
a›airs to be exposed to theworld, hypocrite or not.
Av B plc60 The facts have already been set out. The judgment of
this court is
notable for the detailed guidance that it contains as to how a
court shouldaddress complaints about invasion of privacy by public
or allegedly public�gures. The �rst defendant placed particular
reliance on the court�spara 11(xii):
��Where an individual is a public �gure he is entitled to have
his privacyrespected in the appropriate circumstances. A public
�gure is entitled to aprivate life. The individual, however, should
recognise that because of hispublic position he must expect and
accept that his actions will be moreclosely scrutinised by the
media. Even trivial facts relating to a public�gure can be of great
interest to readers and other observers of the media.Conduct which
in the case of a private individual would not be theappropriate
subject of comment can be the proper subject of comment inthe case
of a public �gure. The public �gure may hold a position wherehigher
standards of conduct can be rightly expected by the public.
Thepublic �gure may be a role model whose conduct could well be
emulatedby others. He may set the fashion. The higher the pro�le of
the individualconcerned the more likely that this will be the
position. Whether youhave courted publicity or not you may be a
legitimate subject of publicattention. If you have courted public
attention then you have less groundto object to the intrusion which
follows. In many of these situations itwould be overstating the
position to say that there is a public interest inthe information
being published. It would be more accurate to say thatthe public
have an understandable and so a legitimate interest in beingtold
the information. If this is the situation then it can be
appropriatelytaken into account by a court when deciding on which
side of the line acase falls. The courts must not ignore the fact
that if newspapers do notpublish information which the public are
interested in, there will be fewernewspapers published, which will
not be in the public interest. The sameis true in relation to other
parts of the media.��
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61 The �rst defendant relied on two parts of this account.
First, that��role models��, voluntary or not, have less expectation
of privacy. That wasreinforced by a later passage in the judgment,
at para 43(vi):
��Footballers are role models for young people and
undesirablebehaviour on their part can set an unfortunate example.
While [the trialjudge] was right to say on the evidence which was
before him that A hadnot courted publicity, the fact is that
someone holding his position wasinevitably a �gure in whom a
section of the public and the media wouldbe interested.��
The �rst claimant, it was said, was inevitably a �gure in whom a
section ofthe public would be, and was, interested. Second, the
general interest insupporting the ��media�� in the publication of
the sort of material that sellsnewspapers should extend to
biographies and literary works generally, suchas the book was
claimed to be.
62 The width of the rights given to the media by A v B plc
cannot bereconciled with Von Hannover�s case. Mr Price said that
whether that wasright or wrong, we had to apply A v B plc, in the
light of the rule ofprecedent laid down by the House of Lords in
Kay v Lambeth LondonBorough Council [2006] 2 AC 465, in particular
by Lord Bingham ofCornhill, at paras 43—45. Put shortly, the
precedential rules of Englishdomestic law apply to interpretations
of Convention jurisprudence. Where,for instance, the Court of
Appeal has ruled on the meaning or reach of aparticular article of
the Convention, a later division of the Court of Appealcannot
depart from that ruling simply on the basis that it is
inconsistentwith a later, or for that matter an earlier, decision
of the European Court ofHuman Rights.
63 I would respectfully and fully agree with the importance of
that rule.The alternative, as an earlier constitution of this court
said, is chaos. ButI do not think that the rule inhibits us in this
case from applying VonHannover�s case. If the court inAv B plc had
indeed ruled de�nitively on thecontent and application of article
10 then the position would be di›erent;but that is what the court
did not do. Having made the importantobservation that the content
of the domestic law was now to be found in thebalance between
articles 8 and 10, the court then addressed the balancingexercise
e›ectively in the former English domestic terms of breach
ofcon�dence. No Convention authority of any sort was even
mentioned. Itmay well be that aspect of the case that caused a
later division of this courtto comment, per Lord Phillips of Worth
Matravers MR in Campbell vMGNLtd [2003] QB 633, paras 40—41:
��40. . . . When Lord Woolf CJ spoke of the public having
�anunderstandable and so a legitimate interest in being told�
information,even including trivial facts, about a public �gure, he
was not speaking ofprivate facts which a fair-minded person would
consider it o›ensive todisclose. That is clear from his subsequent
commendation of theguidance on striking a balance between article 8
and article 10 rightsprovided by the Council of Europe Resolution
1165 of 1998.
��41. For our part we would observe that the fact that an
individual hasachieved prominence on the public stage does not mean
that his privatelife can be laid bare by the media. We do not see
why it should necessarily
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be in the public interest that an individual who has been
adopted as a rolemodel, without seeking this distinction, should be
demonstrated to havefeet of clay.��
64 However that may be, and wherever that leaves courts that
wouldhave to apply the guidance given in A v B plc, it seems clear
that A vB plc cannot be read as any sort of binding authority on
the content ofarticles 8 and 10. To �nd that content, therefore, we
do have to look toVon Hannover�s case. The terms of that judgment
are very far awayfrom the automatic limits placed on the privacy
rights of public �gures byA v B plc.
65 But, in any event, even if we were to follow A v B plc,
theguidance that that case gives does not produce the outcome in
our casethat is sought by the �rst defendant. First, as to the
position of the �rstclaimant, she clearly does not fall within the
�rst category mentioned byLord Woolf CJ, and ��hold a position
where higher standards of conductcan be rightly expected by the
public��: that is no doubt the preserveof headmasters and
clergymen, who according to taste may be joinedby politicians,
senior civil servants, surgeons and journalists. Second,although on
one view the �rst claimant comes within Lord Woolf CJ�ssecond
class, of involuntary role models, I respectfully share the doubts
ofLord Phillips MR, set out in para 63 above, as to the validity of
thatconcept; and it would in any event seem di–cult to include in
the class aperson such as the �rst claimant, who has made such
e›orts not to holdherself out as someone whose life is an open
book. Third, it is clear thatLord Woolf CJ thought that role models
were at risk, or most at risk, ofhaving to put up with the
reporting of disreputable conduct: such as wasthe conduct of the
claimant before him. The �rst claimant does not fallinto that
category; but to make that good I need to go on to the secondpart
of this argument, that exposure is legitimate to demonstrate
improperconduct or dishonesty.
66 In so doing I have not overlooked Lord Woolf CJ�s second
generalpoint, that weight must be given to the commercial interest
of newspapers inreporting matter that interests the public. That
view has also receivedcriticism, and it seems clear that this court
in Campbell�s case, in the passagecited above, was not entirely
happy with it. It is di–cult to reconcile withthe long-standing
view that what interests the public is not necessarily inthe public
interest, a view most recently expressed by Baroness Hale inJameel
(Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359,para
147:
��The public only have a right to be told if two conditions are
ful�lled.First, there must be a real public interest in
communicating and receivingthe information. This is, as we all
know, very di›erent from saying thatit is information which
interests the public�the most vapid tittle-tattleabout the
activities of footballers� wives and girlfriends interests
largesections of the public but no one could claim any real public
interest inour being told all about it.��
It is fortunately not necessary to pursue that issue further,
because it ismerely a general factor that cannot be said to have
any signi�cant impact onthe present case.
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Hypocrisy67 This is the charge brought against the �rst
claimant, which is said to
justify telling the world about her private behaviour and a