Hutcheson v NGN Ltd [2011] EWCA Civ 808

The court upheld an interim injunction preventing a newspaper from publishing details about the claimant's 'second family'. The claimant's and his children's right to privacy (Article 8 ECHR) was deemed to outweigh the newspaper's right to freedom of expression (Article 10).

Facts

The claimant, Mr Chris Hutcheson, a businessman publicly known as the father-in-law of celebrity chef Gordon Ramsay, sought an interim injunction to prevent News Group Newspapers Ltd (NGN), publishers of The Sun, from publishing details about his private life. The information concerned the existence of a ‘second family’, including a partner and two teenage children, which was not known to his wife or the wider public. NGN intended to publish the story, arguing it was in the public interest because Mr Hutcheson had presented himself publicly as a family man and had recently been involved in a high-profile business dispute with his son-in-law.

Issues

The central legal issue was the conflict between the claimant’s (and his second family’s) right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR) and the defendant’s right to freedom of expression under Article 10 ECHR. The court had to determine whether, under section 12(3) of the Human Rights Act 1998, the claimant was “more likely than not” to succeed at a full trial in obtaining a permanent injunction. This involved balancing the respective rights and assessing the strength of NGN’s public interest defence.

Judgment

The Court of Appeal dismissed NGN’s appeal, upholding the interim injunction granted by Eady J in the High Court. The judgment, delivered by Lord Justice Gross, methodically addressed the balancing exercise required.

High Court Decision

Eady J had granted the injunction, finding that the potential harm caused by publication, particularly to the claimant’s children in both families, would be severe and unjustified. He considered NGN’s public interest argument, based on alleged hypocrisy, to be weak and “a threadbare basis” for overriding the compelling privacy interests at stake.

Court of Appeal Decision

Lord Justice Gross, affirming the High Court’s decision, conducted a fresh balancing exercise. He stressed that the ultimate question was whether the Article 8 rights of the claimant and his family would be outweighed by the Article 10 rights of the publisher.

The Balancing Exercise

The court emphasised that the rights of the children were paramount. Gross LJ stated:

The focus of the balancing exercise must be on the comparative importance of the specific rights being claimed in the individual case… the justifications for interfering with or restricting each right must be taken into account; and, finally, the proportionality test must be applied to each.

He found that the privacy rights of the children in the claimant’s second family were of the highest order, noting the potential for “intense and unwanted media scrutiny” which would be profoundly intrusive and distressing.

The Public Interest Defence

The court critically evaluated NGN’s public interest argument. NGN claimed that Mr Hutcheson had courted publicity and potentially misled the public about his family life, thereby making his private conduct a matter of legitimate public interest. Gross LJ robustly dismissed this argument:

I do not for my part see that any ‘hypocrisy’ on the part of the claimant, to adopt NGN’s characterisation, could begin to justify the inevitable intrusion into the lives of the children and their mother which would be caused by publication of the information NGN wishes to publish. The position of the children is, in my view, a factor of the first importance.

The judgment held that the story was essentially about private matters and lacked a sufficient public interest component to justify the resulting invasion of privacy, especially concerning the innocent children involved. The court concluded that the claimant was more likely than not to succeed at trial, thus satisfying the test for an interim injunction.

Implications

The decision is a significant affirmation of the weight given to the privacy rights of children within media law litigation concerning misuse of private information. It demonstrates that even where the subject is a public figure involved in public disputes, the courts will robustly protect the Article 8 rights of their family, particularly minors. The ruling signals that a ‘public interest’ defence based on exposing alleged personal hypocrisy will likely fail where the publication would cause significant harm to innocent third parties and the information itself does not relate to a matter of genuine public debate or concern.

Verdict: The appeal was dismissed and the interim injunction preventing publication was upheld.

Source: Hutcheson v NGN Ltd [2011] EWCA Civ 808