Ambrosiadou v Coward

On an application concerning the scope of limited permission to appeal, the court should not conduct a proleptic appeal or determine factual arguments before the appeal is heard. A complaint that a party cannot be trusted may bear on whether an assurance is adequate, but is not itself a proposition of law. A child’s interests are paramount and no court can ignore them. Article 8 protection may extend to professional activities, but commercial activity does not automatically attract protection. The court must assess the extent to which personal and professional relationships merge or overlap. The proper breadth of any restraining order, including possible protection of business information, is ordinarily a consequential issue to be determined after entitlement to relief has been established.

The applicant wife sought to enlarge or clarify limited permission to appeal from Eady J’s refusal to continue an injunction restraining the respondent husband from publishing the contents of an application filed in divorce proceedings in Thessaloniki. The application contained information about the parties’ marriage, their jointly operated Cyprus-based hedge fund and their 13-year-old son. Permission had been granted only on whether reliance on counsel’s assurance was sufficient, or whether a binding undertaking or order was required, particularly in relation to information about the child. The applicant also sought permission to argue that the parties’ business relationship fell within Article 8 because their personal and professional lives were indistinguishable.

The central issues were the proper scope of the existing permission and whether the proposed business-privacy ground was a discrete ground of appeal.

1. Application for further or enlarged permission. The court made no order. The application was an attempt to define the ambit of argument before the appeal and, insofar as it sought further permission, to pursue a proleptic appeal. That was not an appropriate use of the court’s process. Factual matters could be relevant depending on the outcome of the appeal, but they did not enlarge the permitted legal issue.
2. Permitted issue concerning the child. The existing permission covered whether it was sufficient to rely on an assumption or counsel’s assurance, rather than a binding undertaking or an order, in relation to information concerning the child. The proposition that the child’s interests are paramount fell within the permission and was in any event a proposition of law which no court could ignore.
3. Article 8 and professional activity. The court accepted the principle stated in Niemietz v Germany [1992] 16 EHRR 97 and Imerman v Tchenguiz [2010] EWCA Civ 908 that private life under Article 8 may extend to professional activities. It did not follow that all business or commercial activity attracted Article 8 protection. The relevant question was how far the personal and professional categories merged or overlapped.
4. The evidence did not establish that the business relationship, so far as likely to be publicised, overlapped with the personal relationship protected by Article 8. In any event, the issue was not a discrete ground of appeal. The width of any eventual order, including whether it should extend into the business relationship, was a consequential matter for determination if entitlement to an order were established, or if a suitably broad undertaking were obtained.

Order: None.

• Court of Appeal (Civil Division): On 23 November 2010, Lord Justice Sedley considered an application to clarify or enlarge limited permission to appeal and made no order.
• Queen’s Bench Division: Eady J had refused to continue an injunction restraining publication of the contents of the respondent’s Thessaloniki application notice, while relying on counsel’s assurance that private material would be redacted.
• Permission stage: Sir Richard Buxton had granted limited permission to appeal concerning whether an assurance was sufficient, rather than a binding undertaking or order, particularly regarding information about the child, and refused permission on the remaining matters.