Adakini Ntuli v Howard Donald [2010] EWCA Civ 1276 – ‘Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?’

‘Loyalty’ might not have been a bad answer to this question, sent in a text by Ms Adakini Ntuli to Take That’s Howard Donald in March this year. English law has long recognised the right to protect private and confidential information, especially that obtained as a result of a pre-existing relationship. ‘There could hardly be anything more intimate or confidential than… the mutual trust and confidences which are shared between husband and wife,’ said the courts in Argyll v Argyll [1967] Ch 302.

But decades on from the Swinging Sixties and the courts are not stuck in the dark ages; relationships outside marriage can be similarly protected, as was the case here, and importantly that protection includes the valuable remedy of a pre-publication injunction where there is an imminent threat that private information will be disclosed without authority. I say private, because from the grande dame of breach of confidence – sired by the implementation of the Human Rights Act 1998, which incorporated into English law the European Convention on Human Rights – was born the new kid on the block, misuse of private information, nickname ‘privacy’.

However Donald might have replied to Ntuli’s text, he certainly put a call in to his lawyers, while Ntuli’s attentions were directed to the publicist Max Clifford and then, through his office, to the News of the World. Within days, Donald had been granted an injunction to prevent Ntuli from disclosing specified categories of confidential information and the existence of the proceedings; it also granted Donald anonymity.

Eight months on, and although the injunction remains in force, the qualities that made it what is commonly referred to these days as a ‘super-injunction’ – notably the anonymity afforded to the applicant, and non-disclosure of the fact of the proceedings and that an injunction had been obtained – have been stripped away. Howard still has an injunction – it is just not quite so super.

November saw the latest instalment of this case at the Royal Courts of Justice. Donald argued that the injunction should remain and should also cover the very fact of his relationship with Ntuli, save as known between close friends and family. The defendant, however, cross-appealed, singing a different tune that in light of the undertakings she had given to the court at the return date in March – not to disclose ‘any intimate, personal or sexually explicit or details about their relationship… including any facts of a sexual nature’ – the injunction should not have been made; or, she argued, that its terms, including the word ‘intimate’ were too vague; and/or that the anonymisation and non-disclosure orders were inappropriate.

According to Lord Justice Maurice Kay, vice-president of the Court of Appeal Civil Division who heard the matter with the master of the rolls and Lord Justice Sedley, it was this ‘clash of human rights’ that the court needed now to consider.

In an injunction application, the well-established principles include that neither article 8, which guarantees the right to respect for private and family life, nor article 10, which guarantees the right to free speech, has as such precedence over the other. Where they are in conflict the court focuses intensely on the facts of the case and the comparative importance of the specific rights being claimed, considering the respective justifications for interfering with each right. Then an ultimate balancing test is applied (see Re S (a child) [2005] a AC 593).

Donald argued that his article 8 right was engaged, and in granting the injunction, Eady J agreed that his sexual relations ‘would be matters in respect of which the applicant would have a reasonable expectation of privacy, unless it could be shown that there was a countervailing public interest or that such matters were already genuinely in the public domain’.

The Court of Appeal wasn’t persuaded by the argument as to Ntuli’s countervailing rights, that she had a ‘"need" to tell the story of a relationship that went wrong and the reasons for its failure as she sees them by reference to her rights to personal autonomy and self-development’. Neither did Maurice Kay LJ buy the contention that the terms of the injunction were too vague, the words ‘intimate’, ‘personal’ and ‘sexually explicit’ not being ‘mutually exclusive epithets’. The Court of Appeal accepted that the judge had found that, in the context of the relationship, there could be ‘non-sexual but intimate and/or personal details in respect of which Mr Donald was likely to establish at trial that he has a reasonable expectation of privacy’.

However, the fat lady had not yet sung, and the second verse of the appeal judgment concerned the anonymity and the non-disclosure provisions. The starting principle in litigation is one of open justice and, accordingly, parties should be named. But justice can sometimes require that it is not seen to be done, or at least not entirely, and there can be a derogation from this principle where ‘the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice’ (A-G v Leveller Magazine Ltd [1979] AC 440).

The Court of Appeal understood Donald to be arguing that, without the super-injunction provisions, ‘the media might publicise the fact that "a well-known popular musician" had obtained an injunction which prohibited the publication of (to put it neutrally) salacious details’. The corollary of this would be intrusive speculation by the media and the public as to just what the applicant was seeking to protect. Is X having an affair? Is Y taking drugs? Does Z have a communicable disease? If the applicant is attempting to protect his private life, surely this would defeat the object?

But the Court of Appeal did not accept that these provisions were required to protect details of a relationship which it found was not wholly secret, and in respect of which Donald had not tried to impose a condition of secrecy. ‘A simple anonymity order’ or an order limiting publicity to ‘the fact that Mr Donald had obtained an injunction restraining Ms Ntuli from disclosing details of the relationship which existed between them’ could have served Donald’s purpose, it said. Accordingly, the Court of Appeal lifted the anonymity order and confined reporting of the matter to reporting of the judgment.

This reporting, of course, is unsurprisingly accompanied by the very speculation forecast. For example, the Daily Mail’s article the following day referred emotively to draconian gagging orders being lifted and Donald being ‘unmasked’ while seeking to ‘silence’ his former partner and ‘suppress a secret’. It went on, in what might or might not have been mock sympathy, to suggest that ‘the judgment… will inevitably lead to speculation on the internet about what he is so desperate to hide’ – presumably at the same time inviting its readers to do just that.

Ntuli’s text said it all. She proposed to sell to a national newspaper the private details of her relationship with Donald, which until then, because of the nature of the intimate relationship between them – and loyalty perhaps, which we might all like to hope would be part of our relationships – had remained properly private. It is not surprising that Donald quite rightly sought the recourse of the courts to prevent ‘a sordid spying into the privacy of domestic life’ (Albert v Strange [1848]) and the publication of what might amount to little more than ‘vapid tittle-tattle’ (Campbell v MGN Ltd [2004]).

No doubt Donald has felt betrayed at this would-be breach of trust; irritated at the need to engage lawyers to prevent unjustified disclosures; and distressed at seeing column inches of print speculating as to what his ‘secrets’ might be (they are probably no different from the private affairs of many a Daily Mail reader). But perhaps Donald has had the last laugh. After all The Daily Mail sympathises with the Take That star, and the ‘particularly bad timing for Donald. His band released their new album, Progress, on Monday and it has gone straight to the top of the charts’. Bad timing? Perhaps not.

Amber Melville-Brown is of counsel at Withers