Christopher Hutcheson (formerly known as KGM) v News Group Newspapers and others  EWCA Civ 808
In these turbulent times for Rupert Murdoch (see the UK Human Rights Blog contempt post) it seems strange to see one of his newspapers being vindicated by the courts, but, for once, The Sun seems to have been on the side of the angels.
These proceedings concerned Mr. Hutcheson’s application to restrain NGN from publishing certain information. In 1968 he married a lady with whom he had four children, who are now grown up. The marriage still subsists. In the meantime, from about 1976 he developed a relationship with another woman with whom, in 1979 and 1981 respectively, he had two children.
For many years, however, the claimant managed to keep the information about his ‘second’ family secret, to a greater or lesser extent. he position now is that, finally, all members of the claimant’s ‘first’ family are aware of the situation.
As ever with such tales, there is an important twist. The daughter who only found out recently about her father’s ‘second’ family is married to the chef and businessman Gordon Ramsay, and the claimant was until recently associated with Gordon Ramsay in business.
The Sun wished to pursue 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.
He was refused an injunction by Eady J in the court below because the judge found that he had no reasonable expectation of privacy as to the fact of the ‘second family’.
In view of the very public slanging match between the claimant and Gordon Ramsay, Eady J concluded that the claimant could hardly expect to have it all his own way, and it was felt that he should not be allowed 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.
Against this background, the judge felt that it would be very difficult to draw hard and fast boundaries between ‘zones’ – whether business or familial in nature. According at least to this newspaper’s source, the two seem to be intertwined.
The claimant argued that the information was no more widely known than among his two families and that it was not ‘public knowledge’. He contended that he still had a reasonable expectation of keeping his ‘second’ family secret, in the sense that he should not be identified as being the father of the two children in question or as having had a relationship with their mother. As to the impact of publicising the information, Mr Hutcheson maintained that he was not concerned with his own reputation but on the distress this would cause to his second family. However evidence as to this effect came only from him.
For NGN it was claimed that the journalist’s source had confirmed that the reason why Mr Hutcheson had been sacked from Gordon Ramsay Holdings was because it had been alleged that the claimant had been using company monies to fund his ‘second family’. There was therefore genuine public interest in the story being published quickly.
The Court dismissed the appeal and upheld Eady J’s judgment below.
The Court of Appeal’s reasoning
The Court noted that the claimant’s wife in the ‘Second’ family had changed her name by deed poll to Frances Hutcheson and both the children of that marriage had Christopher Hutcheson named as father in their birth certificates.
The Court adopted Lord Steyn’s dicta in In re S (A Child) (Identification: Restrictions on Publication) with regard to the “ultimate balancing test”, which starts from the proposition that neither Articles 8 or 10 have precedence over the other, so when the values of these two articles are in conflict,
an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary… the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.
Together with this, the test laid down by Laws LJ in R(Wood) v Commissioner of the Metropolis provides a firm guiding hand to this notoriously difficult balancing act:
First, the alleged threat or assault to the individual’s personal autonomy must (if article 8 is to be engaged) attain ‘a certain level of seriousness’. Secondly, the touchstone for article 8(1)’s engagement is whether the claimant enjoys on the facts a ‘reasonable expectation of privacy’ …….Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2)…… “
And in prior restraint cases such as this, the burden of proof is on the party seeking the injunction; he or she must satisfy the requirements of s.12(3) of the Human Rights Act, or fail.
This judgment contains a fascinating new take on the freedom of the press issue, one which very much reflects the decimating effect on the newspaper industry of the internet, social networking and future developments which will no doubt be even more damaging. Indeed, Times columnist Sathnam Sanghera comments that the public inquiry into press standards that is being launched in the wake of the phone-hacking scandal is the technological equivalent to “launching an investigation into the horse and cart trade just as the motor car is taking off.
So whilst there was a time when judicial disapproval of the revenue raised by sex scandal stories for newspapers was a factor against the press in these prior restraint cases, things have moved on. This judgment suggests that this source of income might be seen as a necessary subsidy for keeping a “thriving and vigorous newspaper industry” going at all. and therefore should be considered a matter of serious commercial concern, “a relevant factor for the court to take into account”. 
Two other interesting aspects of this judgment deserve a mention. One is that it was argued on behalf of the claimant that Eady J had fallen into error by finding that Mr Hutcheson could not claim to have any expectation of privacy, since he had already decided that Article 8 was engaged. Once that decision had been taken, the engagement of Article 8 followed as a matter of course. The newspaper responded that the judge had been entitled to treat these as two distinct questions. The Court of Appeal did not accept the appellant’s submissions –
While it may often be as or more convenient to treat the question of the “engagement” of Article 8 as encompassing the question of its infringement as well, the Judge cannot be faulted for approaching the issue in stages.
In view of the fact that this was a “bare fact” or “fact of the relationship case”, and of the undeniably public nature of certain aspects of the life of the second family (the birth certificates, the active role of the appellant in the children’s upbringing), and finally, the knowledge the first family now had of the second family, the Court concluded that much of the rationale for a claim to privacy had been removed.
The second was the significance attached to the way the dispute between Mr Hutcheson and Mr Ramsay was ventilated in the media. As Gross LJ observed,
those who choose to conduct their quarrels in such a fashion take the risk that they may not be able to insist thereafter on clear boundary lines between what is public and what is private – regardless of whether they were, hitherto, only public personalities in a very limited sense.
So a claim to privacy is weakened, not only by the celebrity status of the person seeking privacy, but by any action they may take which involves publicity of some sort or another.
Finally, the fact that no evidence whatever was advanced from any family members (first or second) in support of the claim for injunctive relief proved fatal to Mr Hutcheson’s case.
There is an important distinction between the desire to keep information private and invoking the full panoply of the Court’s jurisdiction in order to do so. It is and should remain a strong thing to impose a prior restraint on publication.
Some readers may not recognise the still at the top of the post taken from Peter Greenaway’s celebrated 1989 film, The Cook, The Thief, His Wife and Her Lover.
This post originally appeared on UK Human Rights Blog and is reproduced with permission and thanks.