Privacy—Injunction—Story alleging extra-marital affair

Queen’s Bench Division, Lindblom J, 5 Sep 2012

The claimant, a former manager of England’s football team, was refused an injunction preventing disclosure of a relationship he had with a woman who was not his wife.

Hugh Tomlinson QC (instructed by Schillings) for the claimant. Richard Spearman QC (instructed by Simons Muirhead & Burton) for the defendant.

The claimant was a professional football manager. At one time he was manager of the England national team, and at the material times he was managing a team in the Dutch football league. He was married with three children, aged between 15 and 24. The defendant newspaper wished to run a story about the claimant and a third party, SA, with whom it alleged the claimant was having a sexual relationship. Previously, the claimant had admitted having an extra-marital relationship which the newspapers had publicised without his opposition. Instead, he had released a statement contending that the affair had taken place during a brief separation from his wife, that it had been a lapse, and that he wanted to concentrate on his family. In respect of the instant proceedings, the claimant did not deny the relationship with SA but nevertheless applied for an injunction to prevent the defendant from publishing a story about it.

Lindblom J

The relevant legal principles were well-established. There was a two-stage test. The first stage was to consider whether an applicant’s rights under Art 8 of the European Convention on Human Rights were engaged, in that he had a reasonable expectation of privacy. The second stage involved a balancing exercise between the right to respect for private and family life under Art 8 and the right to freedom of expression under Art 10. Neither article took precedence over the other. Where the values under them were in conflict, the court had to focus intensely on the comparative importance of the specific rights being claimed in the individual case. It had to take account of the claimed justification for interfering with or restricting each right. And to each of the two rights the test of proportionality had to be applied. Section 12(3) of the Human Rights Act 1998 provides that no relief was to be granted to restrain publication before trial unless the court was satisfied that the applicant was likely to establish that publication should not be allowed. There was no single, immutable standard by which to judge every application for an interim restraint order. In some circumstances, however, a temporary remedy might be necessary to enable the court to consider an application for interim relief pending trial. Relief could be granted to protect a short-lived relationship as well one that had gone on for some time.

As to the first stage, he had no difficulty in accepting the proposition—nor was it disputed—that a sexual relationship was of the essence of private life; that Art 8 clearly was engaged in the circumstances of the instant case; and therefore that, in principle, the claimant had a reasonable expectation of privacy. The first part of the two-stage test was therefore met. The real dispute arose at the second stage.

For the claimant, the core submissions were: first, that there was no public interest in the mass media publishing a story about the private life of a football manager and his relationship with a woman who was not his wife; second, that even if, as a former England manager, the claimant was a public figure—which was not accepted—he was certainly not to be described as a role model comparable, for example, with the captain of the England team at the time of publication; and third, that it was not a case of the claimant being a hypocrite.

His lordship held that in the instant case the balance clearly fell in favour of publication.
As a former manager of England’s football team, the claimant was undoubtedly a public figure. It was a matter of fact that he previously disclosed an extra-marital relationship in a national newspaper, saying that he was happily married and that his marriage would survive. His right to privacy was not defeated by SA’s willingness or enthusiasm to see the defendant’s article about their affair published. But it did not devalue the factors justifying publication when the balance was struck. The defendant plainly had a legitimate interest in publishing its story. It was able to contend that the claimant belonged to the category of those from whom the public could reasonably expect a higher standard of conduct. Even if one allowed for the degree of difference there had to be between the position of a former manager and that of a serving captain of England’s football team, he was clearly still a prominent public figure who had held positions of responsibility in the national game. Whether or not the defendant’s story was a set-up—involving, as it did, a photograph taken surreptitiously by a journalist who seemed to have been told where the claimant and SA would be—was no more than peripheral to the balancing exercise.

His lordship also concluded that the claimant would be most unlikely to succeed in obtaining a permanent injunction.

Accordingly, the claimant’s application for interim injunction would be refused.