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HRH Prince of Wales V Associated Newspapers Ltd

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HRH Prince of Wales V Associated Newspapers Ltd 57 2 0 Ch[2008]Ch Princec of f Wales l v Associatedte Newspaperse r Ltd t (CA) C A Court of Appeal HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch) [2006] EWCACiv 1776 B 2006 Feb 21, 22, 23; Blackburne J March 17 2006 Nov 27, 28; Lord Phillips of Worth Matravers CJ, Dec 21 Sir Anthony Clarke MR and May LJ ConÞdential information Disclosure Public interest ClaimantÕs handwritten C travel journal circulated in conÞdence to chosen individuals Unauthorised disclosure by employee in breach of contract Newspaper publishing extracts from journal Whether violating claimantÕs right to privacy Whether contractual duty of conÞdence a›ecting newspaperÕs right to freedom of expression Whether publication justiÞed in public interest Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 10 D The claimant, the Prince of Wales, kept handwritten travel journals recording his views and impressions of overseas visits, which were photocopied by a member of his private o–ce and circulated to chosen individuals in an envelope marked ÔÔprivate and conÞdentialÕÕ. G, who was employed in the claimantÕs private o–ce under a contract which provided that any information relating to the claimant that she acquired during the course of her employment was subject to an undertaking of conÞdence and was not to be disclosed to any unauthorised person, supplied the E defendant newspaper publisher with typed copies of eight of the claimantÕs journals. The newspaper published substantial extracts from one of the journals, which related to the claimantÕs visit to Hong Kong in 1997 when the colony was handed over to the Republic of China and which included a description of a banquet which the Chinese President had attended, which the claimant described in a manner that was disparaging of the formalities and of the behaviour of the Chinese participants. The claimant, contending that the publication interfered with his right to respect for his private life under article 8 of the Convention for the Protection of Human Rights and F Fundamental Freedoms1, commenced proceedings for breach of conÞdence and infringement of copyright and applied for summary judgment pursuant to CPR Pt 24. The judge granted summary judgment in relation to the Hong Kong travel journal. On the newspaperÕs appeal Held, dismissing the appeal, that, whether a publication or threatened publication involved a breach of a relationship of conÞdence, an interference with privacy or both, it was necessary to consider whether those matters justiÞed the G interference with the right to freedom of expression under article 10 which would be involved if the publication were made the subject of a judicial sanction; that if no breach of a conÞdential relationship were involved, the balance to be struck would be between article 8 and article 10 rights and it would usually involve weighing the nature and consequences of the breach of privacy against the public interest, if any, in the disclosure of private information; that if the disclosure related to information received in conÞdence, that factor was, of itself, capable of justifying restrictions on H freedom of expression; that there was an important public interest in the observance of duties of conÞdence, and those who engaged employees or entered into other relationships which carried with them a duty of conÞdence ought to be able to be 1 Human Rights Act 1998, Sch 1, Pt I, art 8: see post, p 80, para 86. Art 10: see post, pp 80 81, para 87. Ch 2008 4 58 Princer n ofo WalesW v AssociatedA s i d NewspapersN ws Ltd (CA) 2 C[2008]Ch conÞdent that they could disclose, without risk of wider publication, information A they legitimately wished to keep conÞdential; that the test was whether a fetter of the right of freedom of expression was, in the particular circumstances, necessary in a democratic society; that a signiÞcant element to be weighed in the balance was the importance in a democratic society of upholding duties of conÞdence created between individuals; that it was not simply a question of whether the information was a matter of public interest but whether, in all the circumstances, it was in the public interest that the duty of conÞdence should be breached; that, in applying the B test of proportionality, the nature of the relationship giving rise to the duty of conÞdentiality might be important, although the extent to which a contract added to the weight of duty of conÞdence arising out of a conÞdential relationship would depend upon the facts of the individual case; that, on the facts, the information in the claimantÕs travel journal was obviously conÞdential and of a private nature and the claimant could reasonably expect that it would remain conÞdential; that, therefore, the publication by the newspaper of extracts from it interfered with his right under C article 8 to respect for his private life; that G was employed in circumstances and under a contract that placed her under a duty to keep the contents of the journal conÞdential; that the nature both of the information and of the relationship of conÞdence under which it had been received weighed heavily in the balance in favour of the claimant; that, by contrast, the contribution which the journal or the newspaper articles made to providing information on any matters of public interest was minimal; that the signiÞcance of the interference with article 8 rights e›ected by the newspaperÕs publication of information in the journal outweighed the D signiÞcance of the interference with article 10 rights which would have been involved had the newspaper been prevented from publishing that information; that, even if the signiÞcance of the fact that the information published had been revealed to G in conÞdence were ignored, the claimant had an unanswerable claim for breach of privacy and, when the breach of a conÞdential relationship was added to the balance, the claimantÕs case was overwhelming; and that, accordingly, the judge had been right to grant the claimant summary judgment ( post, paras 35 39, 41 43, 46, 65 69, E 70 74, 84). Campbell v MGN Ltd [2004] 2 AC 457, HL(E) considered. Decision of Blackburne J [2006] EWHC 522 (Ch); post, p 60e et seq a–rmed. The following cases are referred to in the judgment of the Court of Appeal: Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109;[1988] 3 WLR 776;[1988] 3 All ER 545, HL(E) F Campbell v Frisbee [2002] EWCACiv 1374;[2003] ICR 141,CA Campbell v MGN Ltd [2004] UKHL 22;[2004] 2 AC 457;[2004] 2 WLR 1232; [2004] 2 All ER 995, HL(E) Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595;[2006] QB 125;[2005] 3 WLR 881;[2005] 4 All ER 128,CA Editions Plon v France (2004) 42 EHRR 705 Fressoz and Roire v France (1999) 31 EHRR 28 G Hosking v Runting [2004] NZCA 34;[2005] 1 NZLR 1 Lion Laboratories Ltd v Evans [1985] QB 526;[1984] 3 WLR 539;[1984] 2 All ER 417,CA London Regional Transport v Mayor of London [2001] EWCA Civ 1491;[2003] EMLR 88,CA M v Secretary of State for Work and Pensions [2006] UKHL 11;[2006] 2 AC 91; [2006] 2 WLR 637;[2006] 4 All ER 929, HL(E) H McKennitt v Ash [2005] EWHC 3003 (QB); [2006] EMLR 178;[2006] EWCA Civ 1714;[2008] QB 73;[2007] 3 WLR 194,CA S (A Child) (IdentiÞcation: Restrictions on Publication), In re [2004] UKHL 47; [2005] 1 AC 593;[2004] 3 WLR 1129;[2004] 4 All ER 683, HL(E) Von Hannover v Germany (2004) 40 EHRR 1 59 2 0 Ch[2008]Ch Princec of f Wales l v Associatedte Newspaperse r Ltd t (CA) C A The following additional cases were cited in argument in the Court of Appeal: AvB[2005] EWHC 1651 (QB); [2005] EMLR 851 A v B plc [2002] EWCA Civ 337;[2003] QB 195;[2002] 3 WLR 542;[2002] 2 All ER 545,CA Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142;[2002] Ch 149;[2001] 3 WLR 1368;[2001] 4 All ER 666,CA Bladet Troms¿ v Norway (1999) 29 EHRR 125 B Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2000] 1 WLR 2416;[2001] 1 All ER 700, HL(E) Galloway v Telegraph Group Ltd [2006] EWCACiv 17;[2006] EMLR 221,CA Goodwin v United Kingdom (1996) 22 EHRR 123 Gourgunidz v Georgia (Application No 71678/01) (unreported) 17 October 2006, ECtHR Halford v United Kingdom (1997) 24 EHRR 523 C Hubbard v Vosper [1972] 2 QB 84;[1972] 2 WLR 389;[1972] 1 All ER 1023,CA Leempoel v Belgium (Application No 64772/01) (unreported) 9 November 2006, ECtHR Maccaba v Lichtenstein [2004] EWHC 1579 (QB); [2005] EMLR 109 Malisiewicz Gaüsior v Poland (Application No 43797/98) (unreported) 6 April 2006, ECtHR Service Corpn International plc v Channel Four Television Corpn [1999] EMLR 83 D The following additional cases, although not cited, were referred to in the skeleton arguments before the Court of Appeal: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 Hyde Park Residence Ltd v Yelland [2001] Ch 143;[2000] 3 WLR 215,CA Jersild v Denmark (1994) 19 EHRR 1 Laserdisken ApS v Kulturministeriet (Case C 479/04)[2006] ECR I 8089, ECJ E McDonaldÕs Corpn v Steel [1995] 3 All ER 615,CA Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605,CA R (ProLife Alliance) v British Broadcasting Corpn [2003] UKHL 23;[2004] 1 AC 185;[2003] 2 WLR 1403;[2003] 2 All ER 977, HL(E) Schering Chemicals Ltd v Falkman Ltd [1982] QB 1;[1981] 2 WLR 848;[1981] 2 All ER 321,CA Tennant (Lady Anne) v Associated Newspapers Group Ltd [1979] FSR 298 F Thompson v United Kingdom (2004) 40 EHRR 245 Thorgeirson v Iceland (1992) 14 EHRR 843 Woodward v Hutchins [1977] 1 WLR 760;[1977] 2 All ER 751,CA X v Persons Unknown [2006] EWHC 2783 (QB); [2007] EMLR 290 The following cases are referred to in the judgment of Blackburne J: AvB[2005] EWHC
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