Abbey v Gilligan & Ors

Information contained in correspondence is not private merely because it appears in an email. The claimant must show a reasonable expectation of privacy in the particular information and must be the proper person to enforce any duty of confidence. A person cannot ordinarily recover substantial damages for disclosure of information concerning a company or principal where the duty, if any, is owed to someone else.

Publication may nevertheless be justified by an objectively assessed public interest, including scrutiny of the affairs of a person holding a role of national importance. The court must balance Articles 8 and 10 where both are engaged. Proceedings may also be an abuse of process where the claimant had no realistic prospect of a valuable remedy and the costs were disproportionate.

Mr Abbey brought proceedings against a journalist and the newspaper publisher concerning emails obtained from another journalist and partly published in the Evening Standard in September 2007. The emails principally concerned the affairs and financial position of Complete Leisure Group Ltd, in which Lord Coe had an interest and for which Mr Abbey acted as a consultant. One email contained information personal to Mr Abbey.

The claims were framed in breach of confidence and, alternatively, misuse of private information. The defendants relied on title to sue, public interest and abuse of process. The central issues were whether Mr Abbey had a reasonable expectation of privacy or an enforceable obligation of confidence, whether publication was justified in the public interest, and whether the proceedings were abusive.

1. Title to sue and privacy. The information in the emails dated 20 and 21 August 2007 concerned CLG, its investors, officers and advisers, and was not personal to Mr Abbey. He was acting as consultant rather than principal. Any duty of confidence was therefore owed, if at all, to CLG, Lord Coe or another person, not to Mr Abbey. Applying Fraser v Evans, Mr Abbey was not the proper claimant for substantial damages. He also had no reasonable expectation of privacy in information which was not personal to him.
2. The fact that information was contained in correspondence did not create an automatic expectation of privacy. The court applied the two-stage approach in McKennitt v Ash: whether the information was private and protected by article 8, followed, if necessary, by the article 8 and article 10 balancing exercise. The test concerned each item of information and all the circumstances, consistently with Browne v Associated Newspapers Ltd. The personal email of 23 August was confidential and personal, but obtaining and reading it did not, on these facts, cross the necessary threshold.
3. Public interest. Publication was objectively in the public interest in exposing the extent of Mr Abbey’s role in managing CLG, questioning the separation between Lord Coe’s Olympic duties and private business interests, and reporting CLG’s inability to pay debts and delay in filing accounts. The court did not find that Lord Coe had acted improperly, but the matters were capable of contributing to a debate concerning the performance of a role of national importance. The court also referred to the balancing principles in Re S (A Child), although it did not conduct a hypothetical balancing exercise after finding that Mr Abbey had failed at the threshold stage.
4. Abuse of process and outcome. The repeated, unsupported threats to report alleged criminal conduct to the police in order to obtain settlement were an attempt at extortion and an abuse of process. Applying Jameel v Dow Jones & Co Inc, the proceedings were also abusive because Mr Abbey had no realistic prospect of substantial damages or a useful declaration and the costs were wholly disproportionate to any benefit. The claim was dismissed.