Axon v Ministry of Defence & Anor (Rev 1)

Whether information concerns a person’s professional role does not determine the privacy question. The court must assess objectively, in all the circumstances, whether there was a reasonable expectation of privacy. Relevant considerations include the public nature of the role, the seriousness and consequences of the conduct, the likelihood that the information would become public, and the stage reached in any investigation. Misconduct may be relevant both to the existence of a reasonable expectation of privacy and to any later balancing exercise under Articles 8 and 10. A separate confidence claim requires a duty of confidence owed to the claimant. For vicarious liability, confidential access obtained through employment may create a close connection with an employee’s wrongful disclosure, even where the disclosure was deliberate, criminal and for personal gain.

The claimant, formerly commanding officer of HMS Somerset, sued the Ministry of Defence for misuse of private information, breach of confidence and breach of Article 8 arising from disclosure to the Sun of complaints of bullying, an equal opportunities investigation, his removal from command and its outcome. News Group Newspapers Ltd was joined as a third party in contribution proceedings.

The Ministry denied liability and disputed disclosure, causation and limitation. The central issues included whether the claimant had a reasonable expectation of privacy, whether an employee of the Ministry supplied the information, whether the Ministry was vicariously liable, whether publication would have occurred in any event, and whether the claim was time-barred.

1. Claim dismissed. The claimant had no reasonable expectation of privacy in any of the information relied upon. His role as commanding officer of a warship was highly public. His imposed removal from command was itself a public fact, and the reasons for it were likely to become publicly known.
2. The reasonable-expectation test was objective and required consideration of all the circumstances. The seriousness of the claimant’s bullying, its effect on the ship’s operational effectiveness, the completion and acceptance of the investigation, the complainants’ knowledge, and the unusual nature of the removal all pointed against privacy. The private conduct of the investigation and security markings on documents were relevant but not conclusive. Misconduct was relevant to the first-stage privacy question as well as to any Article 8 and Article 10 balancing exercise.
3. The confidence claim independently failed. Any duty owed by the employee concerning unauthorised disclosure of information obtained through her work was owed to the Crown or Ministry, not to the claimant. Article 8 added nothing once the reasonable-expectation finding had been made.
4. Although not necessary to the result, the court found it more likely than not that the employee had disclosed the information to the Sun. Had the disclosure been actionable, the Ministry would also have been vicariously liable. Her employment required access to security-sensitive information and included an obligation to preserve its confidentiality. That created a sufficient connection between the employment and the hypothetical tort, notwithstanding her personal motive, criminal conduct, lack of authorisation and absence of benefit to the Ministry.
5. The claim would alternatively have failed on causation. The removal and its reasons would have become public without the leak, and publication could not have been restrained because the newspaper’s Article 10 rights would have prevailed. The limitation arguments and the alleged abuse of process concerning reputational damage were not determined.

No indemnity issue arose between the Ministry and News Group Newspapers Ltd.