England football captain John Terry (“JT”), or LNS as he was known in recent High Court proceedings, was the subject of many pages of text over the last week in newspapers, various websites and a High Court judgment. There was also much comment and criticism from both the press and the public and some would say the Judge, Mr. Justice Tugendhat, who decided upon his application for a super-injunction.
Following on from the lifting of the injunction the News of the World went ahead and splashed the story that JT had been having an affair with an ex-team-mate’s former girlfriend and further alleged that he had got her pregnant and paid for an abortion. Whilst the subject matter and outcome of the hearing are well known to almost everybody, what lessons can be learned from the Judge’s ruling.
Evidence
In the judgment Tugendhat J criticised the way in which JT had asked his business advisers to handle the matter instead of dealing with it himself or instructing his solicitors to do so.
Tugendhat J said that he could not attach the same weight to witness statements from JT’s business partners as he could have done in respect of one from his solicitors as they would not have the requisite skill or knowledge in taking such statements. He stressed the importance that witness statements “should be what the witness truly believes and that words should not be put into the mouth of a witness“ and that the fact the evidence was put forward by JT’s business partners was of concern to him when on the face it, it meant he was considering “double-hearsay” evidence, i.e. a third hand report of events.
This would appear to be a clear indication that individuals concerned with protecting their reputation and private lives should involve solicitors at an early stage in order to ensure that any evidence gathered at the outset can be considered in the right light if the matter proceeds to Court as in this case. The same can be said for reasons of privilege.
Motivation
It is clear from Tugendhat J’s judgment that he felt that JT’s motivation for making the original application was misplaced in that it was for financial reasons and not on privacy grounds.
Tugendhat J believed that JT was more interested in protecting his reputation and limiting the damage of any effect upon his valuable sponsorship contracts than seeking damages for the invasion into his private life.
In the judgment it states that JT did not put forward any evidence of personal distress as a result of the allegations despite there being over 100 pages of exhibits.
Defamation v Privacy
In light of this Tugendhat J also commented upon JT’s decision to seek an injunction for invasion of privacy rather than defamation.
The test for successfully obtaining an injunction is different in a defamation claim than with a claim for invasion of privacy.
Since the case of Bonnard v Perryman it has long been established that in order to defeat an application for an interim injunction in respect of defamation all a respondent need do is show that they will advance a recognised defence that is not hopeless. This rule is firmly in the media’s favour and, together with subsequent case law, is an indication that Claimants still have to meet a high threshold test in order to be successful.
It is for this reason, no doubt, that JT did not apply for a defamation injunction but rather a breach of confidence/privacy injunction. The test for a breach of confidence/privacy injunction is different in that the strict rules against prior restraint generally do not apply as damages are often considered not to be an adequate remedy.
Tugendhat J acknowledged this difference but confirmed that such a strategy may not always succeed if the privacy claim is an abuse of process in order to sidestep the recognised principles on prior restraint. In the circumstances careful consideration will also need to be given by Claimants as to this decision at the outset.
Similar considerations were given by Eady J when deciding upon the case bought by Max Mosley, represented by this firm, against the News of the World.
Prior Notification
Also of note in the JT case has been the outcry from the media that he sought a so called ‘super-injunction’ without giving prior notification to the media.
Yet again the media can be accused of hypocrisy in criticising others of doing what they themselves are more than happy to do. It is well known that in many circumstances the media do not give individuals prior notification of publication of stories regarding their private lives because of the threat of an injunction. In the Mosley case Colin Myler, the editor of the News of the World, admitted that the threat of an injunction was a specific factor taken into consideration when they decided not to notify. Indeed it is this very issue that Mr. Mosley is seeking to clarify in his application to the European Court of Justice.
It would appear that whilst the media are happy not to notify for their own advantage they are not happy when the boot is on the other foot.
Tim Lowles is an Associate solicitor at Steeles Law LLP. For more information about this article or to speak with Tim about any media law matter please contact him on 020 7421 1720 or by email at media@steeleslaw.co.uk.