Hutcheson v NGN Ltd [2011] EWCA Civ 808

Christopher Hutcheson sought to prevent NGN from publishing information about his 'second family' – a long-term relationship producing two children outside his marriage. The Court of Appeal dismissed his appeal, finding the public interest in freedom of expression outweighed his privacy claim, particularly given his public dispute with Gordon Ramsay.

Facts

Christopher Hutcheson married in 1968 and had four children. From 1976, he developed a relationship with another woman, Frances Styles, with whom he had two children in 1979 and 1981. For many years, he kept this ‘second family’ secret from his first family. Hutcheson was the chief executive of Gordon Ramsay Holdings until his dismissal in October 2010. His daughter from the first family was married to Gordon Ramsay.

Following his dismissal, a public dispute erupted between Hutcheson and Ramsay, with both making allegations against each other in the press. The Sun newspaper wished to publish that Hutcheson had been dismissed because he allegedly used company monies to fund his second family. By the time of the hearing, all members of his first family knew about the second family.

Issues

Primary Issues

1. Whether Hutcheson had a reasonable expectation of privacy regarding the fact of his second family under Article 8 ECHR.

2. If Article 8 was engaged, whether the balance between Article 8 (privacy) and Article 10 (freedom of expression) favoured granting an injunction.

3. Whether Hutcheson satisfied the test under section 12(3) of the Human Rights Act 1998 for pre-trial relief.

Judgment

The Court of Appeal (Gross LJ, Etherton LJ, and the Master of the Rolls) dismissed Hutcheson’s appeal against Eady J’s refusal to grant a privacy injunction.

On the first issue, the Court assumed without deciding that Article 8 was engaged but noted that any claim to privacy was borderline at best. Gross LJ observed that this was a ‘bare fact’ case concerning only the existence of the relationship rather than intimate details, the second family had various public incidents attached to it (birth certificates, marriage certificate), and the first family now knew of the second family.

On the balancing exercise, Gross LJ identified strong public interest factors supporting publication:

Those who choose to conduct their quarrels in such a fashion take the risk that they may not be able to insist thereafter on clear boundary lines between what is public and what is private

The Court found that granting an injunction risked presenting a distorted picture to the public given the ongoing public dispute. There was also public interest in NGN being free to publish to authenticate the allegation of diversion of corporate funds.

Regarding evidence, the Court noted the absence of any evidence from family members supporting the privacy claim. As Tugendhat J had observed in Terry v Persons Unknown:

Respect for the dignity and autonomy of the individuals concerned requires that, if practicable, they should speak for themselves.

Implications

This case reinforces several important principles in privacy law:

Prior Restraint

The Court emphasised that it is ‘a strong thing to impose a prior restraint on publication’ and that there is an important distinction between desiring to keep information private and invoking the Court’s jurisdiction to do so.

Public Disputes

Those who engage in public disputes through the media risk losing the ability to maintain clear boundaries between public and private matters.

Evidence Requirements

Claimants relying on impact to family members should adduce evidence from those family members themselves, not merely hearsay from the claimant.

Bare Facts versus Details

The Court distinguished between information about the bare fact of a relationship (potentially less protected) and information about the contents or details of that relationship.

Balance with Freedom of Expression

The decision demonstrates the courts’ commitment to balancing privacy rights against freedom of expression, particularly where there are allegations of wrongdoing in the public interest.

Verdict: Appeal dismissed. The Court of Appeal upheld Eady J's refusal to grant an interim privacy injunction, finding that Hutcheson was not likely to succeed at trial in establishing entitlement to a permanent injunction restraining publication of information about his second family.

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