After a 15 month legal battle Associated Newspapers has won the right to publish an account of the gay relationship between Lord Browne and his partner as the Court of Appeal handed down its judgment yesterday rejecting Lord Browne’s application for the story to be the subject of an injunction up to trial.
The purchase of the story from the partner by Associated Newspapers had the usual hallmarks of a failed attempt by the spurned lover to extract money from Lord Browne by means of a threat of exposure in the press. The Mail on Sunday obliged doubtless with a substantial payment for the story when Lord Browne declined and, despite the best efforts of his lawyers, Lord Browne now languishes in the stocks while the print press pillory him with the venom specially reserved for those who unsuccessfully take on the print press in the courts.
Sir Antony Clarke identified the key question in his judgment on the Court of Appeal’s behalf: “The most difficult question arises in respect of the handling of the matters that we have concluded are publishable by the newspaper in advance of the trial”. As Mr Justice Eady had previously observed in his comprehensive and carefully reasoned first instance judgment in the High Court, this case brings to the fore the tension between the principles which apply on the one hand to applications to restrain information (which can include defamatory allegations) on the basis that they are private and/or confidential and on the other hand to applications to restrain publication of allegations which are defamatory.
The background facts are that the claimant is the group Chief Executive of BP. He and Jeff Chevalier were partners between 2002 and early 2006, during which time Mr Chevalier enjoyed the trappings of the millionaire lifestyle of his partner. When the relationship came to an end Mr Chevalier sent an email to Lord Browne which Mr Justice Eady said “could be interpreted (although [Mr Chevalier] denies it) as a thinly veiled threat” to make public the story of their relationship.
At some point after this Mr Chevalier contacted the Mail on Sunday and the original injunction application was made on 6 January last year. Mr Justice Underhill granted an injunction to restrain two of the five categories of information at issue. The ones that he did not restrain were:
- The alleged misuse of BP’s resources and manpower to support or assist Mr Chevalier.
- The bare fact of the past relationship between Mr Chevalier and Lord Browne.
- The alleged breach of confidentiality by Lord Browne in discussing with Mr Chevalier confidential BP matters and showing him confidential BP documents.
In his judgment of 9 February 2007 Mr Justice Eady concluded that he should not deal with the matter by categorising items as “business” and “personal”, but should determine in relation to each separate item whether there was a reasonable expectation of privacy. According to the Court of Appeal he therefore asked the correct question. The Court of Appeal also approved of his conclusion that there was no “reasonable expectation that the law will protect the privacy of a senior executive, in relation to the use of corporate information and resources, when the effect would be to keep such allegations from those who might ordinarily be expected to make the relevant judgements or exercise supervision.”
The Court of Appeal recognised again the tension between the rights to freedom of expression given to the media by Article 10 of the European Convention on Human Rights, and the privacy rights given to the individual by Article 8. It confirmed the four guiding principles as to how to reconcile that tension, quoting Lord Steyn’s judgment in Re S (a child):
“First, neither article 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 interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”
The Court of Appeal deftly side stepped the issue of the role played in Mr Justice Eady’s judgment by the 19th century judgment in Bonnard v Perryman, which effectively rules out pre-publication injunctions for libel. It did so with the assistance of the defendant newspaper which did not (before the Court of Appeal) seek to rely on this authority, although it had before Mr Justice Eady. It may be that Associated Newspapers wanted to avoid giving the appellate courts an opportunity to review the rule.
The situation was complicated by the lie told by Lord Browne in a witness statement adduced before Mr Justice Eady, before he retracted that lie in a subsequent witness statement. Mr Justice Eady had said that he decided not to refer the matter to the Attorney General for possible perjury proceedings because he could not think that anything would be achieved by doing so, commenting:
“In any event, it is probably sufficient penalty that the claimant’s behaviour has had to be mentioned in this judgment.”
Mr Justice Eady also made an order for indemnity costs against the claimant based in part on his attempt to mislead the court (meaning that the claimant would have to pay a higher proportion of the successful defendant’s costs than normal), and as the Court of Appeal also observed:
“the lie damaged his position because the judge took a less favourable view of his credibility than he might otherwise have done.”
The Court of Appeal came to the conclusion (like Mr Justice Eady) that this lie did not disentitle the claimant to maintain privacy in the details as to how he met Mr Chevalier, which therefore remain excised from the judgment of Mr Justice Eady and are not mentioned in the Court of Appeal judgment. However, it appears that reports in today’s Sun about the case have rather undermined that decision.
As always, the newspaper, and in particular Associated Newspapers, claims the moral high ground, and pours scorn on the defeated claimant in its columns. Not only will he lose substantial benefits from BP, but with the combined costs of all this protracted legal activity, Lord Browne will be several million pounds poorer after today’s judgment.
Two interesting points of principle arise in this case. The first is the suggestion on behalf of the newspaper that a party to privacy or defamation proceedings who is guilty of deception should thereby come out the loser, which is one which might present problems for press defendants as well as claimants. The second is the role of the press as society’s watchdog, and whether that role should include savaging its victim in this way after buying a story from someone who is selling it as an act of betrayal of the confidence of another.