McClaren v News Group Newspapers Ltd.

An interim non-disclosure order requires the court first to decide whether the claimant has a reasonable expectation of privacy and then to balance the competing rights under Articles 8 and 10 of the Convention. Neither right has automatic precedence. A sexual relationship ordinarily engages Article 8, but publication may nevertheless be justified where the claimant is a prominent public figure and the circumstances support a legitimate public interest in publication. The other participant’s willingness to disclose the relationship does not defeat the claimant’s privacy rights, although it may be relevant to the balance. The court must also consider the likelihood of permanent relief at trial. Where publication is likely to be permitted after trial, interim restraint should ordinarily be refused.

The claimant, a married professional football manager and former manager of England’s football team, applied urgently for an interim injunction restraining News Group Newspapers Ltd. from publishing an account of his sexual relationship with SA. The defendant intended to publish the story in The Sun, together with a photograph of the claimant and SA.

The application concerned the claimant’s Article 8 rights and the defendant’s Article 10 rights. The court also considered the claimant’s public profile, his previous public disclosure of an extra-marital relationship, SA’s willingness to publicise the relationship, and the prospects of permanent relief at trial.

1. Application dismissed. The claimant’s application for an interim non-disclosure order was refused. He was ordered to pay the defendant’s costs, to be assessed if not agreed.
2. The court applied the two-stage approach identified in McKennitt v Ash [2008] QB 73. First, it asked whether Article 8 was engaged and whether the claimant had a reasonable expectation of privacy. Secondly, it balanced the claimant’s Article 8 rights against the defendant’s Article 10 rights, applying proportionality to both rights. Neither Convention right took precedence, following Re S (A Child) [2005] 1 AC 593.
3. A sexual relationship was at the essence of private life. Article 8 was therefore engaged and the claimant had, in principle, a reasonable expectation of privacy.
4. The balance nevertheless fell decisively in favour of publication. The claimant was undoubtedly a public figure within the approach recognised in Spelman v Express Newspapers [2012] EWHC 355 (QB). He was a former England manager, remained prominent in the national game, and had previously placed details of another extra-marital relationship in the public domain. Those matters supported the defendant’s legitimate interest in publishing a story concerning whether higher standards of conduct could reasonably be expected of him.
5. SA’s willingness or enthusiasm to publicise the relationship did not defeat the claimant’s Article 8 rights. It did, however, form part of the circumstances relevant to the balancing exercise. Whether the story had been set up, and the manner in which the photograph had been obtained, were peripheral to that exercise.
6. The claimant was most unlikely to obtain a permanent injunction at trial. The temporary threshold under section 12(3) of the Human Rights Act 1998 was therefore not satisfied. It was unnecessary to determine the precise scope of the proposed order.