Price v Powel & Ors

A privacy claim may be struck out as an abuse of process where continuation would serve no legitimate purpose, but that remedy is exceptional and fact-sensitive. The court must consider whether any effective remedy remains, including damages, an injunction, delivery up or disclosure orders. At an interlocutory stage, disputed factual matters concerning the claimant’s expectation of privacy and the seriousness of the alleged misuse should not ordinarily be resolved on the papers. Where Articles 8 and 10 are engaged, the court must balance privacy and freedom of expression, including any present risk of further disclosure. Proportionality and the parties’ duty to assist the court in achieving the overriding objective are relevant.

The claimant brought an action for misuse of private information against four defendants. She sought damages, delivery up of documents, disclosure of recipients of the information and a permanent injunction. The claim concerned information about her relationship with Mr A and the identity of a man whom she alleged had raped her.

The fourth defendant applied under CPR rule 3.4(2)(b) and the inherent jurisdiction to strike out the claim as an abuse of process. She relied principally on Jameel v Dow Jones & Co Inc [2005] QB 946, arguing that the alleged misuse was insufficiently substantial and that no useful remedy was likely. The central issue was whether the claim should be terminated before trial despite the claimant’s assumed success on disputed facts.

1. Application dismissed. The court was required to assume, for the purposes of the application, that the claimant would prove the disputed facts pleaded against the fourth defendant. It would therefore be wrong to determine on the papers whether the claimant’s public disclosures had extinguished her reasonable expectation of privacy or whether the alleged breach of trust was sufficiently serious.
2. The principle in Jameel v Dow Jones & Co Inc [2005] QB 946 can apply, with appropriate adaptation, to a privacy action. A claim may be struck out where it no longer serves the legitimate purpose of protecting a claimant’s privacy or where no tangible or legitimate advantage would outweigh the burden on the parties and court resources. The court may make a strike-out order conditional on appropriate undertakings.
3. On the assumed facts, the claimant had a strong arguable case concerning the privacy of the information about Mr A and Mr B and the gravity of the alleged breach of confidence. The information did not presently appear comparable to the unremarkable details whose publication was accepted by the majority in Campbell v MGN [2004] 2 AC 457.
4. The claimant’s commencement of proceedings engaged the fourth defendant’s Article 10 rights. The balancing exercise also had to take account of the fourth defendant’s case that there was no present threat or likelihood of further disclosure. The interests of the parties’ young children were relevant to the desirability of resolving disputes between their parents.
5. The parties were reminded of their obligations under CPR rule 1.3 to assist the court in furthering the overriding objective and resolving the dispute proportionately. It could not yet be said that the claim had ceased to be worth pursuing, particularly since the claimant sought non-monetary relief and the other defendants’ claims were continuing.

Not stated in the judgment.