KGM v News Group Newspapers Ltd

C, Christopher Hutcheson, the father-in-law of Gordon Ramsay, applied for an interim non-disclosure order to prevent the publishers of The Sun, the Mirror and the Daily Mail from reporting the fact that he had a secret family in addition to that which was publicly known. The Sun wished to publish the story in support of an allegation of wrongdoing against C. Both the Mirror and the Daily Mail were aware of the relevant information and were asked to give undertakings not to publish. The Mirror stated that it had no intention of publishing relevant material. Counsel for the Daily Mail said she had no instructions.

The second family, including two children, had been kept secret from the first family for many years, but was no longer. All children of both families were adults. C stated he had played a full part in the upbringing of the secret children, but no one outside the families and his professional advisers were otherwise aware of their existence. He said he did not care for the potential effect on his reputation should the information be published, but wished to protect his families from unwarranted intrusion. No evidence was relied on from any family member.

C maintained that the allegation which The Sun wished to publish was untrue and there was no proper factual foundation for it.

(1) Whether an injunction should be granted against the newspaper groups which did not state an intention to publish;

(2) Whether C had a reasonable expectation of privacy in the relevant information; and

(3) If so, whether the public interest argument, together with other relevant factors, was such as to bring the balance down in favour of freedom of speech.

(1) In the absence of any evidence of an intention to publish or threat to do so the application against the Mirror and the Daily Mail was dismissed.

(2) There was no reasonable expectation of privacy in the relevant information.

(3) If there was a reasonable expectation of privacy in the information, the public interest argument, and other factors, such as the existence of public statements by C in relation to the dispute with Gordon Ramsay, was such that he had failed to establish that he was likely to succeed at trial.

This judgment was made public after the Court of Appeal refused an appeal on 24 May 2010. The reasons for the CA’s decision are awaited. it will be interesting to see whether both aspects of Eady J’s decision in relation to the substance are upheld.

The appeal against the dismissal of the application against the Mirror and the Daily Mail was not fully argued, since their right to publish would be determined by the substantive appeal.

Eady J drew a variety of factors into both stages of the test for establishing an interim injunction in privacy. The information in relation to the family was, it appeared, largely secret, and was in relation to family life, however because fatherhood was essentially a public matter the Judge held there was no reasonable expectation of privacy. As to public interest the Judge declined to find that the allegation which The Sun wished to publish was true, but held that he was not satisfied that “there can be seen to be already to be no justification for overriding his (ex hypothesi) right to keep the existence of his “second” family secret.” If that way of putting the HRA s. 12 / Cream Holdings test is approved by the CA it may become a useful shorthand for the burden to be satisfied by the Claimant at the interim stage.