Those who conduct their quarrels in public risk losing their ability to insist “on clear boundary lines between what is public and what is private”.
So said the Court of Appeal in Christopher Hutcheson v News Group Newspapers Ltd, 1 in dismissing an appeal by Christopher Hutcheson, father-in-law of the chef Gordon Ramsay. The Court upheld Eady J’s decision not to grant an injunction restraining News Group Newspapers (NGN) from publishing the fact that Mr Hutcheson had a second family.
Background
Mr Hutcheson and his wife, Greta, whom he married in 1968, had four children. From about 1976, he developed a relationship with another woman, Frances Styles, with whom, in 1979 and 1981 respectively, he had another two children (Christopher and Victoria). For many years, Mr Hutcheson managed to keep the fact of his second family secret from the first. By late 2010, however, all members of his first family were aware of the situation, although his daughter Tana Ramsay (the wife of Gordon Ramsay) had only been informed in around November 2010.
Mr Hutcheson had, until October 2010, been associated with Gordon Ramsay in business. He was dismissed in October 2010. Since that time, there had been a very public “slanging match” between Gordon Ramsay and Mr Hutcheson in the columns of various newspapers, with each making various “unappetising allegations” about the other. These covered both business and personal matters.
The Sun, published by NGN, wished to publish an allegation, based on an unidentified source, that Mr Hutcheson was dismissed from Gordon Ramsay Holdings because he had been using company monies to fund his second family. Mr Hutcheson sought a “privacy” injunction against NGN to restrain publication.
Eady J’s decision
At first instance, Eady J refused to grant the injunction.
Eady J accepted that Article 8 of the European Convention on Human Rights (ECHR) was engaged so far as Mr Hutcheson and the members of both his families were concerned, but considered that there was no question of any proposed publication intruding into intimate matters internal to the second family or Mr Hutcheson’s extra-marital relationship. He considered this to be a “bare fact” case (i.e. the court was concerned only with the bare fact of the relationship), which meant that it might be reasonable to treat it discreetly; but that was “not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it”. He concluded, therefore, that there was no reasonable expectation of privacy as to the fact of Mr Hutcheson’s second family.
While that was sufficient to decide the application, Eady J nevertheless went on to determine where the balance lay between Articles 8 and 10 of the ECHR. He noted that NGN was entitled to publish allegations relating to the supposedly true reason for Mr Hutcheson’s dismissal from the Gordon Ramsay Group (subject to the constraints of the law of libel), and that Mr Hutcheson could not rely on privacy law to prevent that. He also noted Mr Hutcheson’s highly publicised attacks on Gordon Ramsay, holding that Mr Hutcheson could “hardly expect to have it all his own way and to use the court’s processes to cover up the true position or to prevent Gordon Ramsay from responding to his allegations by using the full facts at his disposal”. Observing that there was “much in dispute”, and that it was “impossible for the Court to come to a definitive conclusion as to where the truth lay” concerning the public quarrels, Eady J concluded that Mr Hutcheson was unlikely to succeed at trial in obtaining a permanent injunction.
Mr Hutcheson appealed.
Court of Appeal decision
The Court of Appeal held that Article 8 could be “engaged”, in the sense that information relates to family life, without it necessarily following that there is a reasonable expectation of privacy in the information in question. The critical question was, however, whether Mr Hutcheson had a reasonable expectation of privacy in respect of the information that he sought to restrain NGN from publishing. This was not straightforward, given the sexual and family nature of the relationship and the fact that for decades the existence of the second family had remained secret. The case was, however, a “bare fact” or “fact of the relationship” case. Also relevant was what the Court described as “the unavoidably public nature of certain aspects of the life of the second family”. Finally, the knowledge that the first family now had of the second had removed much of the rationale for a claim to privacy.
The Court thought it unnecessary to reach a conclusion on whether the information was, in principle, protected by Article 8, given the view that it took on the balancing exercise (set out below). The Court proceeded by assuming (not deciding) that the information was so protected, noting that, had it concluded that the information was protected, this conclusion would at most have been of a borderline nature given the countervailing arguments.
In the balancing exercise, the Court began by focussing on the public interest in publication of the fact of Mr Hutcheson’s second family. It observed that those who chose to conduct their quarrels in public took the risk that they might not be able to insist thereafter on clear boundary lines between what is public and what is private. The Court considered that, in this case, there was a very real risk of a distorted and partial picture being presented to the public of the dispute between Gordon Ramsay and Mr Hutcheson, if an injunction as sought by Mr Hutcheson were to be granted. The fact that business and family matters had become intertwined demonstrated a powerful interest in publication.
The Court turned next to the allegation of wrongdoing involving the misuse of company monies to fund Mr Hutcheson’s second family. It was common ground that Mr Hutcheson had used company funds for private purposes, although he maintained that no wrongdoing was involved, and that the monies had been repaid. The Court did not think it could determine at this stage where the truth ultimately lay and, in the circumstances, held there was a public interest in allowing NGN to publish the fact of Mr Hutcheson’s second family to authenticate the allegation of diversion of corporate funds for private purposes. The Court noted that, while (in doing so) NGN would be subject to the law of defamation (should the allegation turn out to be unfounded), this was irrelevant in the current proceedings, except that it tended to suggest that NGN was prepared to back its source.
Assuming (without deciding) that Mr Hutcheson did have a reasonable expectation of privacy in relation to the information in question, the Court reiterated that the claim to privacy was, at best, borderline. It noted that Mr Hutcheson had effectively discounted his own claim to privacy, and that the claim essentially turned on the impact of publication on his wife, Frances Styles, and his children. It was noteworthy, however, that there was no evidence from any family members in support of Mr Hutcheson’s claim for an injunction. While the basis for a privacy claim in Mr Hutcheson’s situation might appear to be that the first family did not know about the second, that basis was no longer open to Mr Hutcheson. His evidence also indicated that there was already a public dimension to the existence of the second family. For example, Frances Styles had, at some time, called herself “Mrs Hutcheson” and changed her name by deed poll to “Frances Hutcheson”. Although Mr Hutcheson’s name was not on the birth certificates for Christopher and Victoria, both children had taken his name. Subsequently, when Victoria married, her marriage certificate had recorded Mr Hutcheson as her “father/parent”. Both the birth certificates and the marriage certificate were in the public domain. Mr Hutcheson had also attended meetings at Christopher’s and Victoria’s schools, such as parents’ evenings. The Court found that this public dimension did not of itself allow NGN to publish the fact of the second family, but that it was a factor to be weighed in the balance.
Finally, the Court remarked that the case involved a strong claim to freedom of expression in the public interest, against which there was, at best, a tenuous claim to privacy. At the least, there was a very real likelihood that Mr Hutcheson would fail at trial. The Court stressed the importance of distinguishing between the desire to keep information private and invoking the full panoply of the court’s jurisdiction in order to do so. The Court noted that it was (and should remain) a strong measure to impose a prior restraint on publication and dismissed the appeal.
Comment
Although the Court of Appeal took a slightly different approach to that taken by Eady J at first instance, it arrived at the same conclusion and made clear, in any event, that it found Eady J’s findings correct and unexceptionable.
This decision, and the recent decision in Goodwin v News Group Newspapers Ltd (No. 3),2 demonstrate that the courts are, in the right circumstances, willing to find that public interest and freedom of expression outweigh an individual’s right to privacy. What sets these cases apart from others in which injunctions have been granted is the limited nature of the (arguably) private information that the newspapers have sought to publish, as well as the fact that there is some public interest in publication.
Neither Hutcheson or Goodwin was a “kiss and tell” case where the newspaper wished to publish salacious details of a sexual relationship between the claimant and a third party. In both cases, NGN only wished to publish the fact of the relationship. In Hutcheson, the fact that Mr Hutcheson and Gordon Ramsay had aired their differences in public (in relation to both business and family matters), was enough to demonstrate a powerful interest in publication. There was also a public interest in NGN’s freedom to publish the fact of Mr Hutcheson’s second family to authenticate the allegation of diversion of corporate funds for private purposes. In Goodwin, Tugendhat J held that there was a public interest in discussion of the circumstances in which it was proper for a Chief Executive (or other person holding public office or exercising official functions) to carry on a sexual relationship with an employee in the same organisation.
If conducting quarrels in public risks blurring the boundaries between public and private, this principle is likely to extend to those who conduct much of their life in the public domain, such as those who feature in “warts and all” reality television series or who regularly give frank interviews about personal matters to media organisations.
Eleanor Steyn
Article written for Entertainment Law Review.
1 [2011] EWCA Civ 808.
2 [2011] EWHC 1437 (QB) – in which Tugendhat J permitted the disclosure of the job description (even if not the name) of an RBS employee with whom Sir Fred Goodwin had had an affair. The judge was not satisfied that the woman would establish a reasonable expectation of privacy in respect of the bare fact of the relationship.
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