Laura Gray looks at key aspects of the judgment and its consideration of a return date and expectations of privacy.

Factual Background

At a return date hearing on 17 January 2023, the High Court refused to grant an injunction restraining the further publication of photographs of married couple, Richard and Sarah Stoute (the “Claimants”). The photograph of the Claimants was published on 1 January 2022 in The Sun and on its associated website. The Claimants ran a company, Full Support Health Care Limited (“FSHL”), which supplied PPE to the NHS and private hospitals. FSHL secured government contracts worth £2 billion to provide PPE during the Covid-19 pandemic. The photographs were taken by paparazzi near the Claimants’ second home in Barbados and depicted the Claimants arriving at a public beach via jet ski and then walking to a restaurant.

At an initial interim application, the Court had ordered the restraint of publication of photographs of the Claimants’ house and boat, but had refused to grant an injunction over publication of photographs purely of the couple.

The three issues considered by the Court were:

1. Whether the application should be entertained in light of a prior application and decision on 31 December 2022? In other words, were the Claimants able to use the ‘return date’ (as discussed further below) as an opportunity to request a reconsideration of their initial application to the Court?
2. Whether the photographs amounted to the Claimants’ private information, meaning information that the Claimants reasonably expected to be private?

• Under American Cyanamid[1], did the balance of convenience fall in favour of injunctive relief?

Misuse of Private Information

Misuse of private information is a tort derived from Article 8 of the European Convention on Human Rights (“ECHR”). A successful claim must demonstrate:

1. The Defendant’s use of private information: This requires an assessment of whether the Claimant has a reasonable expectation of privacy in respect of the information. The Court assesses how a reasonable person would view the use of this information if they were placed in the same position as the Claimant. This includes looking at the Claimant’s personal attributes, location, the nature and purpose of the intrusion, whether there was consent, the effect on the Claimant, and the circumstances around the publication. Photographs are deemed a particularly intrusive invasion of privacy and attract special consideration. Whilst being photographed in public can be considered fair game by journalists, it has been held that there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life”.
2. A lack of justification for use: This involves a proportionality test, balancing the Claimants’ privacy rights and the Defendant’s right to freedom of expression (Article 10 ECHR). There is no presumption in favour of either Article 8 or 10 and each case is decided on its own facts.

Judgment

Repeat application at a return date not necessarily an abuse of process

Generally, return dates serve to give the Defendant an opportunity to oppose the continuation of an injunction. If the Claimants had wanted to oppose the earlier decision, their remedy would typically have been to appeal rather than request the same relief again at the return date. However, the judge opined that whilst it is generally contrary to the public interest for the same issue to be relitigated, there may be special cases where the Court has discretion to entertain a repeat application where it considers there to be a good reason to do so.

Here, the judge found there to be good reason because:

• the initial interim application had been heard at very short notice;
• the Defendant chose not to give the Claimant more than two days’ notice of the proposed application;
• the Defendant initially declined to provide copies of the photographs, only disclosing them within 24 hours of publication; and
• the disclosed photographs were cropped to reveal less of the Claimants (waist up) than was eventually published (head to toe).

Whilst this final point was eventually considered to be immaterial to the substantive case, it is useful to demonstrate that ‘good reason’ might be justified where different or new evidence is presented.

A reasonable expectation of privacy

Johnson J assessed whether the Claimants were more likely than not to succeed in proving a reasonable expectation of privacy at trial. He ruled that they did not, due to the ‘demonstrative and performative’ way in which they arrived at the public beach by jet ski and the lack of any further inherently private information. The prevalence of CCTV and smart phones means that a reasonable person knows they may be captured on camera when in public.  Following Peck v UK, you need an additional element to render information private in the public space, thereby engaging the “inner zone” (for example, in Peck, the individual’s right to privacy was preserved due to the context of a mental health crisis and their physical ill health in public).  The judge in this case gave the example of where a person touches a post-box when posting a letter and leaves their DNA on the letterbox, they retain a right to privacy in respect of that material. Here, the fact that consent was absent and that the photographs were taken by magnified telescopic lens after a two-to-three-day long pursuit of the Claimants was relevant, but it did not amount to a degree of intrusion significant enough[2] to demonstrate that they had a reasonable expectation of privacy.

When does the balance of convenience fall in favour of granting injunctive relief?

The balance of convenience test stipulates that one party must not be disproportionately harmed by injunctive relief being granted or refused. The Court may also consider the public interest in granting or refusing an injunction. In this case the judge held that even if the Claimants were able to prove a reasonable expectation of privacy, the significant and unjustified interference with the Defendant’s right to freedom of expression swayed the balance of convenience in favour of maintaining the status quo until trial. The Claimants’ application was therefore refused.

The full judgment can be found here.

[1] [1975] UKHL 1, [1975] AC 396, [1975] 2 WLR 316, [1975] 1 All ER 504, [1977] FSR 593

[2] Van Hannover v Germany [2005] 40 EHRR 1 at [44], John v Associated Newspapers Ltd [2006] EWHC 1611 QB; [2006] EMLR 27 per Eady J at [16].