In SKA and PLM v CRH [2012] EWHC 766 (QB) Tugendhat J refused to grant an injunction prohibiting the disclosure of the fact that the claimants were engaged in an extra-marital relationship, and the paternity of the claimants’ unborn twins. The case raises interesting questions about whether the bare fact of a relationship can constitute private information, whether the paternity of one’s children constitutes private information, and the competing rights of others. Overall the reasoning is not entirely convincing and the decision seems dominated by frustration at the claimants’ lack of co-operation and judicial perceptions of morality. 

 The facts

The first claimant (SKA) is a wealthy businessman in his 70s, he is married to his second wife, and he has adult children from his first marriage. He also has a younger Russian mistress (this is the second claimant – PLM). Tugendhat J described PLM as ‘not young, but considerably younger than [SKA]’.

The claimants admitted that they had been in a secret relationship for a few years, that they had decided to have children, and that PLM is now expecting twins fathered by SKA. The claimants wanted to keep their relationship and the paternity of the twins a secret. Unfortunately for the claimants their relationship and the paternity of the twins became known to a third party and the claimants received demands for large sums of money. The claimants suspected the defendant and sought an injunction prohibiting the defendant and unknown persons from disclosing the information to the first claimant’s wife and his adult children from a previous marriage.

On 12 March Tugendhat J granted an interim injunction without notice to the first defendant prohibiting for seven days the disclosure of the information and the harassment of the claimants. The application was heard in private, the names of the parties were anonymised, and access was restricted to the court file. The case was brought back before Tugendhat J on 19 March.

The judgment

Tugendhat J granted an injunction prohibiting disclosure of photographs, personal financial information and intimate details of the claimants private lives, but he refused to prohibit disclosure of the fact that the claimants were in a relationship, and the fact that the first claimant was the father of the unborn twins.

In brief his reasoning seems to be as follows. First, he thought that it was unlikely that the claimants had a reasonable expectation of privacy: he did not consider the information to be obviously private; and he determined that it was not clear what a person of ordinary sensibilities would feel if placed in the same position as the claimants, he therefore concluded that the claimants had no reasonable expectation of privacy. Second, even if he was wrong on the first question, he nevertheless found that it was not likely that the claimants would succeed on the balancing test.

 Comment

 (1) A reasonable expectation of privacy?

The first issue was whether the bare fact of a relationship constitutes private information. Tugendhat J noted that whilst there will commonly be a reasonable expectation of privacy in respect of the details of a sexual or family relationship the same cannot be said for the bare fact of a sexual relationship, or a parental or other family relationship. It appears from his analysis that he adopts the position that whilst the bare fact of a relationship is not automatically to be considered private information, it may be private information in particular circumstances (at [65]) (this test derives from Murray v Big Pictures Limited [2008] EWCA Civ 446).

A number of cases have raised the issue of whether the bare fact of a relationship constitutes private information and the courts are still working out what factors are relevant in determining whether the information is private in the circumstances. Unfortunately the reasoning in SKA does not add much.

Two factors seem to be clear from the previous cases. First, in some cases the fact the claimant has been, or is, in a relationship with a particular person will have to be revealed to expose professional misconduct. For example, in Lord Browne of Madingley v Associated Newspapers [2008] QB 103 the Court held that the need to contextualise professional wrongdoing was a ‘sufficient reason to permit publication of the bare fact of the relationship’ (at [59]).  However, even if the bare fact of a relationship is not protected, the courts may nevertheless protect the identity of one of the parties from disclosure in the press to restrict media intrusion – see Goodwin v NGN (No.3) [2011] EWHC 1437.

Second, where the relationship is already in the public domain then the claimant will not be able to establish that the information is private. For example, in Lord Browne of Madingley v Associated Newspapers the ‘relationship seemed to have become fairly widely known’ (at [8]), and therefore the existence of the relationship was not private. A similar issue arose in Ntuli v Donald [2010] EWCA Civ 127. In SKA Tugendhat J was evidently frustrated at the lack of information provided by the second claimant on this point (at [10-11]).

It is not clear what factors Tugendhat J took into account when he concluded that the claimants had no reasonable expectation of privacy as he offered no reasons for doing so, he simply relied upon Eady J’s analysis in KGM v News Group Newspapers [2010] EWHC 3145.

I would accept that Article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the “second” family or to the Claimant’s extra-marital relationship. It is a “bare fact” case; that is to say, the court is concerned only with the bare fact of the familial relationship (as was the case, for example, in Donald v Ntuli). Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is 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. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the “second family”. (KGM at [36] cited in SKA at [68]).

Yet the reliability of this analysis is questionable because Eady J appears to have brought the balancing of article 8 and 10 ECHR into the initial question of whether there is a reasonable expectation of privacy. Moreover, in depending on this analysis, Tugendhat J does not explain how this satisfies the Murray circumstances test.

Moreover, in purporting to apply the Murray test, it is not clear whether Tugendhat J was applying it by reference to someone in the position of the first claimant, the second claimant or both. On balance it seems that Tugendhat J was largely focusing on the position of the second claimant, concluding that it was ‘not easy to consider what a reasonable person of ordinary sensibilities would feel if placed in the Second Claimant’s position’ (at [65]). That conclusion is questionable, as it seems fairly obvious what a person in the position of the second claimant would feel faced with the prospect of these revelations.

A related problem is that it is not always clear in the judgment whether Tugendhat J was simply considering whether the bare fact of the relationship is private, or whether he was also considering whether the paternity of the twins was private. In doing so it appears that he largely focused on the question of whether the bare fact of the relationship was private, and that he may not have given sufficient consideration to the issue of whether the paternity of one’s unborn children is private information. Interestingly Tugendhat J noted that he would have held that the second claimant had a reasonable expectation of privacy in respect of her pregnancy before it was obvious that she was pregnant, but as it is now obvious that she is pregnant she has no reasonable expectation of privacy in relation to her pregnancy. The fact that she now has no reasonable expectation of privacy in relation to her relationship and the paternity of her unborn children is troubling.

In the circumstances it seems that Tugendhat J may have been too quick to conclude that the claimants were unlikely to establish a reasonable expectation of privacy.

(2) Balancing competing rights and interests

Having concluded that it would be unlikely that the claimants would be able to establish that they had a reasonable expectation of privacy, Tugendhat J nevertheless considered the balance to be struck between competing rights and interests. He noted that the proper method for balancing competing rights and interests is the balancing test set out in Re S [2004] UKHL 47, and he suggested that the following Convention rights were relevant in the circumstances: the defendants Article 10 ECHR right; the rights of SAK’s children and SAK’s wife to receive information under Article 10 ECHR; and the Article 8 ECHR right to respect for private and family life of the claimants, SAK’s grown up children, SAK’s wife and the unborn twins.

Dealing first with the defendant’s Article 10 ECHR right, he concluded that the defendant did not forfeit his article 10 ECHR rights just because there was an allegation of blackmail, instead the court needed to consider the value of the speech. Tugendhat J did not accept the claimants’ submissions that the speech was trivial, indeed he concluded that ‘to tell a grown up child that his or her father aged in his 70s is, or is about to be, the father of twins, is speech of a high order of importance’ (at [77]). He commented that this speech was important to both the existing children and the unborn children, and in analysing these rights he distinguished between cases which involved telling a married man’s wife and children that he was having an affair and ‘telling his wife and grown up children that he is about to become the father of twins in his 70s’ (at 79) (thus distinguishing the present case from  ASG v GSA [2009] EWCA Civ 1574 and CTB v NGN [2011] EWHC 1326 (QB).

Related to this was the judge’s concern that the first claimant would not live long enough to assume full parental responsibility and that the grown up children may be in control of their father’s wealth at a later point. This does not seem to be the most pressing of concerns as the first claimant could easily put in place measures to provide for his children. It also does not appear to be an issue which falls within the Convention rights identified by the judge.

Most difficult was Tugendhat J’s analysis of the rights of the unborn twins, in particular his assertion that there ‘is likely to be a strong argument that the twins would have a right to know who their father is’ (at [81]). First, there is the question of whether an unborn child has any rights at all. This is a highly difficult question that Tugendhat J was no doubt keen to avoid. Indeed, he commented that he did not think that it was necessary to consider whether the rights of the twins are already engaged before their birth or whether it is only at their birth that the court would be bound to have regard to their rights and best interests (at [81]). Second, even assuming that the twins have such rights what would those rights entail? Surely, in addition to any right they themselves may have to know who their father is, their article 8 ECHR rights would include a right to respect for their private life, which may tell against disclosure of the information to others. Moreover, if one considers the best interests of the twins, there is surely a strong argument that it was not in their best interests for the disclosure to take place when their mother was in the final stages of pregnancy, and that it would have been preferable for the court to award a temporary injunction to allow the claimants time to plan for this difficult revelation.

Turning finally to the rights of the first claimant’s wife, Tugendhat J did not hold back on what he thought of the first claimant’s evidence that the disclosure would be painful for the first claimant’s wife and that he was concerned that it would have an adverse impact on her health; he denounced this evidence as ‘particularly unimpressive’ (at 82]). He suggested first that it was not clear that the claimant’s wife did not know of the relationship, and second that the claimant was not in a position to ‘speak for the best interests of [his] wife’ (at [83]). These concerns were legitimate, but it is not clear what information the judge would have required from the claimant, how this could be obtained without completely defeating the point of the order sought, and how these issues precisely related to the wife’s article 8 and 10 rights.

Thus overall one is left with the impression that Tugendhat J was not impressed by the claimants in this case and that this may have dictated the result more than the balancing of the competing rights and interests. Certainly he appears to have been unconvinced that the claimants had considered the interests of the existing children, the wife or the unborn twins. The lack of evidence provided by the claimants on these issues appears to have been their downfall, in particular their failure to put forward a clear plan for when they were going to tell the first claimant’s family about the twins, and the anticipated relationship between the first claimant and the twins. Nevertheless, Tugendhat J’s suggestion that there would be little point in issuing an injunction, which lasted only until the birth of the twins, seems questionable, and there is clearly further work to be done in determining when the bare fact of a relationship constitutes private information.

Kirsty Hughes is a Fellow and Lecturer in Law at Clare College, Cambridge