Pre-trial or post-judgment - Relief - Interim injunction - Claimant applying for interim injunction

McClaren v News Group Newspapers Ltd: QBD (Mr Justice Lindblom): 5 September 2012

The claimant was married with a wife and three children. He was a professional football manager, working in the Dutch football league and had previously been the manager of England’s international team. The claimant had previously had an extra-marital relationship and it had been revealed in one of the defendant’s newspapers.

At the time, the claimant had not sought an injunction preventing the publication of the article. The claimant released a statement at the time, which had said, inter alia, that the affair had taken place during a brief separation from his wife, it had been a lapse, and that he wanted to concentrate on his family. In respect of the instant proceedings, the defendant wished to publish a story in the Sunday edition of one of its newspapers, the story being that of an extra-marital relationship between the claimant and a third party, SA.

The article included a photograph taken of the claimant and SA walking along the street on their way to SA’s flat. The claimant applied for an interim injunction preventing the publication of the defendant’s story. Two matters fell to be determined. First, whether, on the facts, the claimant’s rights under article 8 of the European Convention on Human Rights were engaged and there had been a reasonable expectation of privacy; and, second, where the balance would lie between the claimant’s rights under article 8 and those of the defendant under article 10 of the convention. Consideration was given to Spelman v Express Newspapers [2012] All ER (D) 51 (Mar).

The court ruled: (1) A sexual relationship was of the essence of private life, and, in principle, the claimant had a reasonable expectation of privacy (see [28] of the judgment).

(2) In the circumstances of the instant case, the balance clearly fell in favour of publication. The claimant was undoubtedly a public figure within the definition recognised in Spelman and belonged to the category of those from whom the public could reasonably have expected a higher standard of conduct. It was a matter of fact that the claimant had previously disclosed an extra-marital relationship in a national newspaper.

Although the claimant’s right to privacy was not defeated by SA’s willingness or enthusiasm to see the defendant’s article about their affair published, it had not devalued the factors justifying publication when the balance in the case was struck. The defendant plainly had a legitimate interest in publishing its story (see [33], [34] of the judgment). The application for the grant of an interim injunction would be refused.

Hugh Tomlinson QC (instructed by Schillings) for the claimant; Richard Spearman QC (instructed by Simons Muirhead & Burton) for the defendant.