Cases of Interest

MOSTYN NEIL HAMILTON v MOHAMED AL FAYED (NO.1)

The unsuccessful Claimant in the well-publicised libel action sought to adduce fresh evidence to support the allegation that documents stolen from the dustbins outside the Claimant's Counsel's Chambers had been bought by the Defendant and used by him to unfair advantage. The Court of Appeal refused his application to set aside the jury's verdict or order a re-trial or reverse the order for costs in favour of Al Fayed on the grounds that there was no reason to believe that the documents had given any significant procedural advantage to the Defendant, let alone that they might have enabled him to obtain a favourable verdict when otherwise he might not have done.

MICHAEL DOUGLAS (2) CATHERINE ZETA-JONES (3) NORTHERN & SHELL PLC v HELLO! LTD

The Court of Appeal lifted an injunction restraining the Defendant publishers of 'Hello!' magazine from publishing nine unauthorised photographs taken surreptitiously of the first two Claimants at their wedding in the Plaza Hotel, New York. The third Claimant, the proprietor of OK! Magazine, had paid a substantial amount of money for the exclusive right to publish photographs of the wedding which had been authorised by the couple. The Court of Appeal held that the Claimants had a strong case for invasion of their privacy and/or breach of confidence. In particular, Lord Justice Sedley held that the English law recognised a distinct right to privacy, in line with Article 8 of the European Convention on Human Rights. However, there were differing degrees of privacy and in the instant case the major part of the couple's privacy rights had been sold as part of a commercial transaction. The Court decided with some hesitation on the balance of convenience that such right to privacy was overriden in this case by the fact that the grant of an injunction would kill off the entire issue of Hello! potentially causing unquantifiable damage, whereas any damage sustained by the Claimants was capable of being quantified after publication by an account of the profits which had been made by that issue of Hello!.

KEITH BURSTEIN v TIMES NEWSPAPERS LTD

The Claimant had recovered £8,000 in damages from the Defendant in respect of allegations published in The Times that he had organised bands of hecklers to go about wrecking performances of modern atonal music. The Defendant's only defence that the words were fair comment had been struck out by the Judge at trial, leaving only the meaning of the article and the sum of damages awarded to be decided by the jury. On appeal, the Court of Appeal decided that some of the particulars on which the Defendant had wished to rely should properly have been admitted in evidence even though the defence had been struck out. The court was not persuaded, however, that if this evidence had been before the jury, their award would have been lower.

CARLTON COMMUNICATIONS PLC (2) CARLTON TELEVISION LTD v NEWS GROUP NEWSPAPERS LTD : ROGER JAMES COOK v NEWS GROUP NEWSPAPERS LTD

Applications were brought in two libel actions pursued by the Claimants against the News of the World for articles alleging that the television series The Cook Report was faked. In both applications, the Claimants successfully struck out parts of the Defendant's particulars of justification. In the first, on the basis that the words were incapable of bearing the wider meaning contended for by the Defendant. In the second, on the basis that the Defendant had 'over-pleaded' its case and had sought to refer to a previous libel claim brought against the programme by G, a proprietor of IVF clinics, who had been featured in the series. The action was settled for £45,000. Eady J considered that 'No relevant inference could be drawn from the terms on which the earlier litigation had been settled.'

ASHWORTH SECURITY HOSPITAL v MGN LTD

The Defendant newspaper group appealed the decision of Rougier J ordering disclosure of the identity of an intermediary who provided medical information on Ian Brady obtained from a source at the Claimant hospital where he was detained. The information had been taken from the hospital database. The appeal raised the following issues: whether there was jurisdiction to make a Norwich Pharmacal order forcing disclosure of the source under the principles of that case and/or under the principles in Broadmoor Hospital v R; whether the order infringed s.10 of the Contempt of Court Act 1981; and whether the order infringed Article 10 of the European Convention on Human Rights. The Court of Appeal held that jurisdiction for the Order existed under Norwich Pharmacal principles as it conferred jurisdiction to order disclosure against a party 'mixed-up' in wrongdoing whether innocently or a wrongdoer itself. S.10 of the Contempt of Court Act was to be interpreted in light of Article 10 of the Convention such that the specific purposes for which disclosure of sources was permitted should be equated as far as possible with the 'legitimate aims' for which Article 10 could be restricted, with the same test for 'necessity' applying to both statutes. The appeal was dismissed as disclosure in the circumstances was necessary: 'The disclosure of confidential medical records to the press was misconduct that was not merely of concern to the individual establishment in which it occurred. It was an attack on an area of confidentiality that should be safeguarded in any democratic society. This was an exceptional case.' The Defendant is seeking leave to apply to the House of Lords.

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