After a hearing before Mr Justice Eady on 15 November, generating a judgment on 4 December, an adulterer has been granted an interim injunction against the husband of the woman with whom he had an affair, preventing the husband (inter alia) from selling the story to the press.
The legal background
Human rights lawyers have speculated as to whether Article 8 of the European Convention on Human Rights (the right to privacy) would in any way impinge on the long established “prior restraint” rule in Bonnard v Perryman, now strengthened by Article 10 (freedom of speech), that a court will not grant an injunction to restrain defamation save in exceptional circumstances. If anyone is aware of the tension between those principles, it is Mr Justice Eady, who is the most senior High Court judge hearing defamation and privacy cases. Mr Justice Eady hears most applications for injunctions in this area and his views therefore carry considerable weight, even though the higher courts don’t always agree with him on appeal.
In a wise and humane judgment which warrants reading in full, the judge began by observing that the claimant had conducted an adulterous relationship with the defendant’s wife and now sought an injunction for which the judge knew of no direct precedent. This did “not at first glance appear to be a very compelling case“.
Referring directly to Bonnard v Perryman, he observed that the main cause of action relied on “entails the striking proposition that a spouse whose partner committed adultery owes a duty of confidence to the third party adulterer to keep quiet about it – even without any voluntary assumption of such an obligation“.
Although, as set out below, the circumstances of this application were striking and unusual, the fact that the injunction was granted at all represents a remarkable extension of what was previously understood to be the ambit of the Article 8 privacy rights. Inevitably also, it has undermined to some degree the rule in Bonnard v Perryman, and must therefore be a cause for concern for those parts of the press for whom adultery on the part of high profile individuals (apparently the claimant was a leading figure in the sports world) is an important bankable commodity.
The considerations behind the judgment
The conduct of the defendant husband was the first consideration which weighed in the judge’s mind:
“..the defendant has made it clear in a number of threatening communications, and indeed in his evidence to the court, that he wishes to reveal the information partly out of revenge and partly to make money for himself by selling the story to the media.”
The judge said that the evidence of motive had to be considered against the value of the speech which the claimant sought to restrain, making a distinction between “political speech at one end of the spectrum” and “vapid tittle tattle” (a phrase taken from the House of Lords judgment in Jameel where his decision on a Reynolds defence was recently overturned) at the other end.
The second consideration identified by the judge was that “the evidence at the moment appears to indicate that neither of the parties to the sexual relationship in question wishes either the fact of it, or any details about how it was conducted to be made public“. This therefore distinguishes the circumstances in this case from a “kiss and tell” story where one party to the relationship does want to go public with it (usually for financial gain). The judge went on to make this striking observation:
“There is a powerful argument that the conduct of an intimate or sexual relationship is a matter in respect of which there is a “reasonable or legitimate expectation of privacy”. Accordingly, anyone who obtains such information would be expected to recognise that, either from the nature of the information itself, or from the circumstances in which it was imparted. If that is so for journalists or for scandal mongers in general, it is a matter for consideration whether, and to what extent, a “cuckolded” husband is under a lesser obligation.”
The third consideration identified by the judge falls directly within the rationale of Article 8: “the claimant says that he is now seeking to reconstruct his family life, and is concerned for the interests of his own wife and young children“. The claimant argued that there was no reason why his own wife and children should suffer more than was necessary through the stresses and strains of press intrusion, that their own rights under Article 8 should be taken into account even though they were not parties to the action.
The judge’s fourth consideration was an aspect which he described as “even more troubling“: “The claimant’s wife is suffering stress and anxiety which requires medical attention (attested by medical evidence) and which is quite likely to be made worse by press exposure. There is also non-medical evidence of self harm and of threats to commit suicide.” The judge contrasted his own concern for the possible medical consequences on the claimant’s wife with the attitude of the defendant:
“[The defendant] himself has not been deterred by this at all. He says it is just “bullshit” and portrays himself as the victim absolved from any responsibility for the consequences of his action. His attitude is that he is entitled to his revenge on the claimant, and if possible, to some financial gain; if his own wife, or the claimant’s children or his children, suffer incidental fall out, then that is the claimant’s fault.”
The judge also observed that it was the claimant’s case (albeit contested) “that at the time of the “affair” [the claimant] did not know that [the defendant’s wife] was married.” He then rejected the contention made on behalf of the defendant that “a party to an adulterous relationship can never, as a matter of law, obtain injunctive relief (interim or permanent) against the wronged party preventing him from disclosing the relationship”.
He observed that no such legal principle could be demonstrated from 19th or 20th century case law, and it would be curious “that it should now emerge fully formed in the 21st“. The judge also specifically refused to accept the submission made on behalf of the defendant “that there is, or should be, a general legal principle that “there is no legitimate expectation of privacy for a person who conducts a relationship with another person’s wife“.”
The judge also rejected the proposition put forward on behalf of the defendant that the claimant had a “public persona” and that therefore “there is a public interest in the disclosure of information about the relationship“. The judge countered this by observing that this was not a case where the claimant had “misled the public by false denial; nor has he moralised publicly on family life, or his own continence in sexual matters“. The judge concluded therefore that there was no “genuine interest so far as the public is concerned in the disclosure of this information“.
The effect of the judgment
Where Article 8 rights of privacy are engaged, and there is a desire on the part of an adulterous claimant to restrain publication of material which is both private and defamatory, such an application may succeed where circumstances such as those existing in this action are presented to the court. It is, however, difficult to exaggerate the extremity of the evidence indicating the unworthiness of the defendant. This tape transcript of the call made by the defendant to the claimant gives a flavour:
“You’re going to be f**ked. You’re f**ked, I’m just telling you when this goes to court. You can’t even afford the House of Lords … I’m on Legal Aid … it’s all paid for me. Because I’m a good guy … I’ve done nothing.”
The defendant was plainly not a “good guy“, but it is unlikely that Mr Justice Eady would have much sympathy with a tabloid journalist whose main motivation was an improved circulation and financial gain. This judgment will probably strike fear into some parts of the print press for whom “kiss & tell” stories are meat and drink, and there have already been howls of complaint. But the judgment is hard to criticise unless you are an advocate that the right to free speech must always prevail at the expense of the rights guaranteed by Article 8. It also breathes spectacular new life into the High Court’s privacy jurisdiction.