Hannon & Anor v News Group Newspapers Ltd & Anor

Claims for misuse of private information and breach of confidence are not plainly abusive merely because the facts also cause reputational damage. At an interlocutory strike-out stage, a defendant must show that the claim is unarguable or plainly improper on the pleaded facts. The developing relationship between privacy, confidence and defamation requires careful analysis of the facts and cannot generally be resolved summarily. The one-year limitation period for defamation does not automatically apply by analogy to privacy or confidence claims. Whether an arrested person has a reasonable expectation of privacy in the fact and circumstances of arrest is fact-sensitive. The existence of criminal proceedings, or the operation of the contempt regime, does not create an absolute right to publish arrest information.

Sarah Hannon and Daniel Dufour brought claims against News Group Newspapers Ltd and the Commissioner of Police of the Metropolis. They alleged that police officers had disclosed information about their arrests and related incidents to a Sun journalist in return for payment, leading to sensationalised publications. The claims were framed in breach of confidence, misuse of private information and infringement of rights under article 8 of the Convention.

News Group Newspapers applied to strike out both claims. It argued that the claims were in substance defamation claims, were statute-barred or abusive, would yield only trivial damages, and concerned matters in which there could be no reasonable expectation of privacy. The central issues were whether those matters could be determined summarily and whether the pleaded claims were plainly unsustainable.

1. The applications were dismissed. The court had to assume that the pleaded primary facts were true. Strike-out was appropriate only if the claims were unarguable as a matter of law or plainly abusive. Fact-sensitive issues requiring a trial could not properly be resolved on the applications.
2. The claims contained a substantial reputational element, but reputation was not their sole or essential subject matter. They also alleged wrongful acquisition and disclosure of private or confidential information, humiliation and other effects. It was therefore premature to characterise the claims as defamation claims only.
3. The authorities concerning attempts to evade the rule in Bonnard v Perryman principally concerned remedies, especially interlocutory injunctions. They did not establish that reputational damage is exclusively the preserve of defamation or that privacy and confidence claims cannot overlap with it. The developing privacy jurisprudence required fuller factual and legal analysis.
4. The court rejected the submission that the one-year limitation period in section 4A of the Limitation Act 1980 applied to these claims. Section 4A referred to actions for libel, slander and specified malicious falsehoods. No legal basis was shown for extending it by analogy to privacy or confidence proceedings.
5. It was not necessary to decide whether damages would be too small under Jameel v Dow Jones Co Inc, because the possibility of reputational damages had not been excluded. The value of the alleged privacy and confidence infringements depended on facts to be established at trial.
6. Whether information about an arrest attracts a reasonable expectation of privacy is a question of fact and degree. Axel Springer AG v Germany did not establish an absolute public right to know or publish the fact and circumstances of every arrest. Section 2 of the Contempt of Court Act 1981, and Schedule 1 paragraph 4 concerning when proceedings become active, addressed contempt and did not determine separate privacy or confidence rights.
7. The potentially public nature of the events in the Hannon case, and earlier publicity arising from related criminal proceedings, might affect the assessment of privacy or damages, but could not justify strike-out on the pleaded facts. The remaining issues were remitted to trial.