Spelman injunction lifted

by Carl Gardner on February 24, 2012

Jonathan Spelman, the 17-year-old rugby international and son of cabinet minister Caroline Spelman, obtained an injunction earlier this month restraining Express Newspapers – specifically, the Daily Star Sunday – from publishing information about him which, it was argued on his behalf, would breach his right to privacy and have a very significant harmful effect on him. Mr Justice Lindblom ruled that Mr. Spelman had a reasonable expectation of privacy about the information and that publication would not significantly advance the public interest. He concluded that it was more likely than not that his privacy claim would succeed and so section 12(3) of the Human Rights Act, which gives special protection for freedom of expression, was no bar to an injunction.

But now, following a hearing last week, Mr Justice Tugendhat has lifted the injunction.

His conclusions on the key legal points all seem directly opposed to Lindblom J’s – though to be fair, more and different evidence seems to have been before the judge this time. As far as Spelman’s expectation of privacy is concerned (para. 100) he says

I am unable to find that the applicant is more likely than not to establish at any trial that he has a reasonable expectation of privacy in relation to the First Source’s Information. Nor can I find that he is more likely than not to fail in establishing that. The likelihood of his success on this point seems to me to be somewhere between the two. Whether the Claimant has a reasonable expectation of privacy is an issue on which each side has a real prospect of success.

Thinking about this for a moment, it seems to me that by somewhere between the two Tugendhat can only logically mean he sees Spelman’s chances as precisely 50-50. On public interest he says (paras. 102 and 108)

It is not possible to discuss this issue in any detail in this open judgment. My conclusion is that the newspaper has a good prospect of establishing that if it were to publish some information of the kind that is sought to be prohibited, that would be in the public interest. Of course, much would depend upon the style of any article, and how intrusive or offensive it might be ..

.. So on the issue of public interest, again I find that each side has a real prospect of success.

He goes on to consider whether damages might be an adequate remedy in this case – and interestingly referred to a recent speech by a retired French judge outlining the approach he would take in similar cases. A rare example, this, of reference in an English court to continental legal thinking. Tugendhat J seems not to reach any firm conclusion on the adequacy of damages but does conclude (para. 119) that

Having regard to all the matters set out above, I have reached the conclusion that it is not necessary or proportionate to make an order restraining the defendant from disclosing any information relating to the Claimant of the kinds specified in the order made on 10 February …

This case is especially interesting: first, against the background of the Leveson inquiry which, some have said, has made newspapers very cautious about what print at the moment; and secondly, because some may see it as representing a slight swing back by judges in favour of freedom of expression.

I’m not sure myself that judges’ legal analysis has changed. It may make a difference, though, if judges begin to feel more doubt about the prospects of success of privacy claims – and then, applying section 12(3) and the normal more likely than not standard laid down by the House of Lords in Cream Holdings v Banerjee, deny claimants their injunctions.

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1 Simon Carne February 24, 2012 at 22:12

Like Carl Gardner, I am intrigued by Tugendhat’s “between the two” remark. If Tugendhat meant 50:50 (and knew that’s what he meant), he wouldn’t have written “between the two”. So was he having a moment of mathematical brain freeze or is there an alternative explanation?

Can we draw a distinction between these two concepts: (1) given all the available that will be adduced at trial, the Claimant’s chances of success are more than 50% and (2) given the less-than-complete set of information available to Tugendhat today, he is unable to find that the Claimant’s chances of success will be greater than 50%?

If those two concepts can be differentiated, then Tugendhat is saying that, given the information at his disposal today, he cannot find that that the chances are more than 50%, but neither can he find that they are less than 50%. That doesn’t mean the chances are exactly 50% – merely that he cannot find what they are.

That still doesn’t make “between the two” the ideal phrase to use but it makes more sense, perhaps.

Thoughts, Carl? Anyone?

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