Christopher Hutcheson (formerly known as “KGM”) v News Group Newspapers Ltd & Ors

An interim injunction restraining publication of private information requires the applicant to show that publication is likely to be prohibited at trial. The court first asks whether the information attracts a reasonable expectation of privacy. If it does, the court conducts an intense and fact-sensitive balance between the rights to privacy and freedom of expression.

Information known within a limited circle does not automatically lose its private character. Its nature, existing public dimension and the evidence of those allegedly affected remain material. A person who publicly conducts a dispute risks weakening any insistence on a strict boundary between its public and private aspects, particularly where restraint would present a distorted picture. Prior restraint is a strong measure, and the applicant bears the ultimate burden under section 12(3) of the Human Rights Act 1998.

Christopher Hutcheson appealed from Eady J’s refusal on 1 December 2010 to grant an interim privacy injunction restraining News Group Newspapers Ltd from publishing the existence of his long-standing relationship with Frances Styles, his paternity of their two adult children and their status as his second family.

Eady J held that there was no reasonable expectation of privacy concerning the bare fact of the second family. He also concluded that publication should not be restrained after balancing privacy against freedom of expression. The proposed publication concerned an allegation that company money had been used to support the second family and arose amid a highly public dispute following Mr Hutcheson’s dismissal from businesses associated with his son-in-law.

The central questions were whether the information was protected by article 8 of the European Convention on Human Rights and, if so, whether Mr Hutcheson was likely to establish at trial that publication should be prohibited.

1. The appeal was dismissed unanimously. The Court of Appeal assumed, without deciding, that the information was protected in principle by article 8. Even on that assumption, Eady J was entitled to find that restricting publication was neither necessary nor proportionate and that the applicant had failed to satisfy section 12(3) of the Human Rights Act 1998 (per Gross LJ, Etherton LJ and the Master of the Rolls).

2. Article 8 may apply because information relates to family life without the person necessarily having a reasonable expectation of privacy in that information. It was therefore permissible to approach applicability and reasonable expectation in stages. The latter issue remained difficult because the case concerned only the bare fact of a relationship, aspects of the second family’s life had an unavoidable public dimension, and the first family already knew of the second family.

3. Knowledge within a limited circle does not by itself permit publication to the world. Nevertheless, the nature of the information and its existing public dimension affect the strength of the privacy claim. Here any claim was at most borderline. Mr Hutcheson relied principally on the effect upon his family, but none of the family members gave evidence. Their dignity and autonomy ordinarily favoured their speaking for themselves where practicable.

4. The public dispute conducted through newspapers created a powerful interest in publication. Those who publicly conduct a quarrel risk losing the ability to insist on clear boundaries between its public and private aspects. An injunction could have presented a distorted and partial picture because the business and family matters had become intertwined.

5. There was also a public interest in permitting the newspaper to identify the second family when reporting the allegation that corporate funds had been diverted for private purposes. The absence of that specific allegation from the dismissal letter did not establish that it lacked substance. Whether the allegation was true could not be resolved at the interim stage, and any defamatory publication remained subject to the law of defamation.

6. The strong claim to freedom of expression outweighed the tenuous privacy claim. There was at least a very real likelihood that the claim would fail at trial. Because prior restraint is a strong measure and the applicant bears the ultimate burden under section 12(3), the interim injunction was properly refused.

1. Court of Appeal (Civil Division): By [2011] EWCA Civ 808, the court unanimously dismissed the appeal and upheld the refusal of interim injunctive relief.

2. High Court: On 1 December 2010, Eady J refused an interim privacy injunction. He found no reasonable expectation of privacy in the bare fact of the second family and, alternatively, held that the applicant was unlikely to obtain a permanent injunction after balancing privacy against freedom of expression.