March 20, 2023
The claimants, husband and wife Richard and Sarah Stoute, owned and ran Full Support Health Care Ltd, which sells PPE to the NHS and private hospitals. During the Covid-19 pandemic, FSHL secured government contracts to deliver PPE worth about £2 billion.
In December 2022 the claimants applied for an interim injunction to restrain News Group Newspapers Ltd from publishing four photographs of: (i) the claimants’ second home in Barbados; (ii) the claimants’ boat in Barbados; (iii) Sarah Stoute on a public beach; and (iv) Richard Stoute on a public beach. The injunction was granted in respect of the first two photographs but was refused in relation to the third and fourth photographs.
In January 2023, News Group published articles about the claimants in the print and online editions of The Sun on Sunday newspaper, including the two photographs of the claimants. The photographs of the house and boat were not published. The published photographs were the same as the photographs that had been sent to the claimants the previous day, save that the latter photographs were cropped in a different way from the published photographs. The published photographs showed the claimants from head to toe, whereas the cropped photos originally sent to the claimants showed them from waist height upwards only.
The claimants issued the claim form in January 2023 for, inter alia, misuse of private information in relation to publication of the photographs.
On the return date of the interim order in December 2022, News Group did not appeal the injunction granted in respect of the photographs of the claimants’ house and boat. However, the claimants applied to restrain publication until trial of the different, uncropped photographs of the claimants, as published in The Sun on Sunday newspaper.
The court had to decide whether:
- the application should be entertained given that, as News Group argued, it had already been heard in December 2022;
- the claimants were likely to succeed in showing that the photographs amounted to information in respect of which the claimants had a reasonable expectation of privacy; and
- the balance of convenience fell in favour of granting injunctive relief.
The claimants accepted that the application sought, in part, to relitigate issues that had already been heard in December 2022. However, they said that it was permissible because the December hearing had taken place on an erroneous basis in respect of what News Group was threatening to publish. They said that if News Group had disclosed the photographs that were in fact eventually published, then the claimants would have given additional evidence, as they had done for the return date hearing, and that their case would have been stronger.
Mr Justice Johnson noted that, ordinarily, if a claimant fails to secure an injunction, the remedy is to appeal and there is no general right to make a repeat application for the same relief. A return date is only set if the application is granted, or, as here, granted in part and the purpose of the return date is to enable the defendant to oppose the continuation of the injunction after being given sufficient notice. There is not, however, any absolute rule prohibiting a repeat application and in certain cases the court can allow a point to be relitigated. The court therefore has a discretion in this regard.
Johnson J said that the photographs, which were sent to the claimants less than 24 hours before publication, were disclosed in a way that naturally led the claimants to believe that they were what would be published and that had informed and framed the claimants’ application for the interim injunction. News Group had not indicated that the disclosed photographs were cropped versions of the photos that would be published. Further, there were significant differences between the two sets of photographs (i.e., the published photos showed much more of the claimants than the cropped photos) and if the claimants had been aware of the photographs that were in fact published, then they would have put forward different evidence because (as subsequent events had shown) they would have been able to say more about the circumstances in which the photographs were taken.
Considering all this, as well as the chronology of the original application and the fact that it had been made on an urgent basis, Johnson J found that there was good reason to permit a repeat application.
As for whether the claimants had a reasonable expectation of privacy, Johnson J noted that just because they were in a public location at the time the photographs were taken did not necessarily mean that they had no reasonable expectation of privacy. However, to succeed there needed to be an additional “privacy” element to the situation that renders the information private even though it is obtained in a public pace (e.g. the subjects of the photographs are getting changed on a beach under a towel and the towel momentarily slips).
Here, the claimants were in a public place, i.e. a public beach, that they had crossed to reach a restaurant, where other members of the public were present. The claimants had arrived by jet ski, which provided a “demonstrative and performative element to their arrival” that would have drawn attention to them. The information in the photographs corresponded to how the claimants had chosen to appear in public. There was no additional element of inherently private information. The information in the photographs was simply what any person at the restaurant at that time would have seen. The fact that the photographs showed more of their bodies than was shown in the cropped photographs did not make a material difference. The fact that the claimants had not consented to the photographs, that the photos had been taken from a distance using highly magnified telescopic lenses, and that the claimants had been pursued by paparazzi over a period of two or three days, were all relevant to the question of whether the claimants had a reasonable expectation of privacy. However, these factors were not present to a degree or extent that made it likely that the court at trial would conclude in their favour.
Considering the balance of convenience if he were wrong on the question of reasonable expectation of privacy, Johnson J noted that the photographs had already been published and damage incurred. If the claimants were to succeed at trial, they would be entitled to damages and, potentially, a permanent injunction. Any further damage suffered between now and trial could also be considered when assessing damages. If, on the other hand, Johnson were to grant an injunction now and at trial the court were to find that the publication was lawful, then that would mean that there had been a significant and unjustified interference with News Group’s right to freedom of expression. The balance therefore fell against the grant of injunctive relief and in favour of maintaining the status quo until trial.
The application was dismissed. ( EWHC 232 (KB) (17 January 2023) — to read the judgment in full, click here).