Douglas & Ors v Hello! Ltd.& Ors

On an application for service out of the jurisdiction, the court need only decide whether the pleaded claim has a good arguable prospect of success. It should not determine issues reserved for an imminent trial.

A person commissioned in advance to obtain confidential material for its intended unlawful publication may arguably be a joint participant in a common design. That allegation is materially different from mere knowing assistance or the supply of lawful facilities. Publication in England may constitute the essential act causing the relevant privacy or confidentiality wrong, notwithstanding an earlier foreign act.

A foreign sender may also arguably use United Kingdom processing equipment under section 5(1)(b) of the Data Protection Act 1998 when transmitting data through the recipient’s equipment.

Michael Douglas and Catherine Zeta-Jones arranged for their wedding to remain private, subject to an exclusive approved-photograph arrangement with Northern & Shell plc, publisher of OK!. Unauthorised wedding photographs were taken, transmitted to London and published by the rival magazine Hello!. An earlier interim injunction restraining publication had been discharged by the Court of Appeal: [2001] QB 967.

Jacob J later permitted the claimants to join Philip Ramey, a Californian photographer who claimed copyright in the photographs, and to serve him in California. Deputy Master Mark refused Mr Ramey’s application to set aside service. Laddie J allowed his appeal, holding that the pleaded claims had no reasonable prospect of success.

The claimants appealed. The central question was whether their pleaded claims against Mr Ramey disclosed a good arguable case sufficient to justify service out of the jurisdiction.

Appeal allowed. The court held that Laddie J had taken too narrow a view of the pleaded case against Mr Ramey.

1. Applicable threshold. In this interlocutory jurisdiction appeal, the question was whether there was a reasonable prospect of success, or a serious issue to be tried, rather than whether the claims would ultimately succeed. The court was required to avoid deciding issues that would shortly arise at the trial between the claimants and the other defendants.
2. Privacy, confidence and common design. English law recognised the pleaded privacy and confidentiality claims, including without a pre-existing confidential relationship. There was a good arguable case that Mr Ramey had been commissioned in advance to obtain unauthorised photographs for publication in Hello!, had sold publication rights, and had participated in the common design. That allegation went beyond knowing assistance. It was materially different from the provision of lawful equipment capable of misuse. A photographer, or a person arranging for photographs to be taken, could arguably be jointly responsible for their publication in breach of confidence or privacy.
3. Territorial connection. The essential act alleged was publication in England. It was therefore arguable that English jurisdiction was available under CPR 6.20(8) and (15), even if an earlier taking of the photographs in New York was itself a separate wrong governed by foreign law. The possible New York privilege for newsworthy publications did not answer a claim founded on publication in England.
4. Data protection. The pleaded statutory-duty claim raised a genuine issue under section 5(1)(b) of the Data Protection Act 1998. On the admitted evidence that the photographs were transmitted to London through Hello!’s ISDN line, it was arguable that Mr Ramey used United Kingdom equipment and that the use was not merely transit through the jurisdiction.
5. Remaining claims. The economic-tort claims were arguable because they were premised on the other alleged unlawful means. It was also arguable that Northern & Shell, having contractually acquired a valuable share in the exclusivity of the privacy and confidentiality rights, could seek their vindication.

The order setting aside service on Mr Ramey was therefore overturned. Further orders were made in the agreed minute of order.

• Court of Appeal (Civil Division): Allowed the claimants’ appeal and restored the basis for service out on Mr Ramey.
• Chancery Division, Laddie J: Allowed Mr Ramey’s appeal from the Deputy Master and ordered that service on him be set aside.
• Deputy Master Mark: Refused Mr Ramey’s application to set aside service.
• Chancery Division, Jacob J: Granted permission without notice to join Mr Ramey and to serve him in California.