Giving judgment striking out the Claimant’s privacy claim in Pryor v Liverpool Womens’ NHS Foundation Trust & Lumsden ([2021] EWHC 2911 (QB) [pdf]), Senior Master Fontaine, has confirmed that the English law of privacy has not progressed yet to there being a stand-alone tort of privacy.

Background

Michelle Pryor was a patient at Liverpool Womens’ Hospital. Jo Lumsden was a midwife formerly employed by the Liverpool Womens’ NHS Foundation Trust. Ms Pryor attended the Liverpool Womens’ Hospital to give birth to her fourth child. She claimed that the memory of the birth of her child had been ruined by the knowledge that that day after the birth she was cared for by Ms Lumsden who had allegedly earlier been in a relationship with the baby’s father. Ms Lumsden was not on duty when Ms Pryor gave birth. Ms Lumsden had not known who Ms Pryor was, or where she was when she came on duty.

After learning (from her boyfriend’s conduct) that her partner knew Ms Lumsden, she asked her community midwife to request that Ms Lumsden speak with her to confirm details of what had gone on. When Ms Lumsden acceded to that request, called Ms Pryor and answered her questions honestly, Ms Pryor realised her partner had cheated on her, and dumped her. However, she then proceeded to tell her “story” in publications in the Liverpool Echo and Take a Break Magazine. The story was also picked up and published by many other news outlets. Ms Pryor was also due to appear on Good Morning Britain to discuss her experiences before Ms Lumsden’s solicitors, Manleys, threatened an interim injunction and ITV pulled the interview.

Ms Pryor subsequently brought a claim against Ms Lumsden and Liverpool Womens’ NHS Trust for damages arising out of alleged breach of privacy and breach of duty.

The Claims and applications

The brief details on Ms Pryor’s Claim Form read “Claim for damages arising out of breach of privacy rights and breach of duty”. Despite repeated requests to abandon what the Defendants stated was a hopeless claim, Ms Pryor fought on, issued, and pursued a privacy claim, represented by Bond Turner solicitors in Liverpool and Robert Sterling (counsel).

After securing a transfer to the Media and Communications List (initially resisted) an application was made to strike out the privacy claim (CPR 3.4(2) and/ or for summary judgement under CPR 24.2). Mark Manley and Jessica Baker of Manleys Solicitors and Louis Browne QC of Exchange Chambers acted for Ms Lumsden.

The Judgment

Striking out the claim, Senior Master Fontaine commented that the claim was unclear and inadequately pleaded. A significant argument before the court centred around whether the law of privacy had now progressed so
that there is a freestanding legal cause of action for “breach of privacy rights”.

Ms Pryor relied upon Gulati v MGN Ltd [2015] EWHC 1482 and NT1 v Google LLC [2018] EWHC 799 (QB) 344 at [225] to support an argument that privacy law was ever growing and had moved to a position where such action was free-standing. The Senior Master found that those authorities could not form a basis for establishing a new tort of invasion of privacy, as both were claims for misuse of confidential information/ breach of Article 8 of The Human Rights Act 1998.

In fact, as set out by the Senior Master, paragraphs 16 and 45 of the Court of Appeal Judgment in Gulati provided that the damages were awarded for invasion of privacy related to the claim for misappropriating or misusing private information. The Senior Master also confirmed that breach or invasion of privacy is “an overarching term for a number of torts, including misuse of private information” and that applied to the comments at paragraph 48 of the Gulati Judgment. Further, in Wainwright, Lord Hoffman also made this clear and suggested that: –

“…the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill the gaps in the existing remedies.”

The Senior Master also noted that Practice Direction 53B relating to Media and Communications claims, does not include beach of privacy as a claim which can be brought in that specialist list. She found that: –

“If a freestanding claim for breach of privacy rights exists, it is unlikely that it would not have been in that list”

Ms Pryor also alleged a claim for misuse of confidential or private information and a somewhat novel introduction of a new possible tort of “intrusions into physical privacy”. These claims were not pleaded but were instead set out within the Claimant’s skeleton argument.

The Senior Master accepted submissions on behalf of both Defendants that a tort of “invasion of privacy” or “breach of privacy rights” or “breach of physical privacy” is not a tort recognised in English Law. In reaching this conclusion, the Senior Master referred to: Campbell v MGN Ltd [2004] UKHL 22 at [132]; McKennitt v Ash [2008] QB 73 per Buxton LJ at [8]; Wainwright v The Home Office [2004] 2 AC 406 at [18]-[19] and [23], [43] and [62]  Perhaps unsurprisingly, the notion of a tort of physical intrusion privacy were given short shrift.

The Senior Master also discussed a second issue on the law being Ms Pryor’s claim for “breach of the duty not to act in conflict of duty”. She found that the Nursing and Midwifery Council Code and Joint Statements are not statutory regulations, nor other forms of legislation and therefore, they do not create any cause of action in civil law.

Accordingly, the Senior Master found that Ms Pryor’s claim was without any legal basis and should be struck out. She ordered Ms Pryor to pay Ms Lumsden’s costs of the action on the indemnity basis. The Claimant did not seek permission to appeal.

Jessica Baker is a solicitors at Manleys Solicitors.