Case No: C1/2003/0819
Neutral Citation No: [2003] EWCA Civ 1169
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
His Honour Judge Norris QC
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 31st July 2003
Before :

LORD JUSTICE LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE WALLER
and 
LORD JUSTICE CARNWATH

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Between :

	D	Appellant	
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	L	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr Peter Duckworth (instructed by Breakwells solicitors) for the Appellant
Mr Rajeev Thacker, Ms Shanti Mauger (instructed by the Bar Pro Bono Unit and assisted by Freshfields Bruckhaus Deringer solicitors) for the Respondent

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Judgment

Lord Justice Waller : 

1.	The appeal is concerned with whether a party who did not know that a private conversation was being tape recorded should be entitled to injunctive relief preventing publication of parts of that tape recording.  The judge HH Judge Norris QC in the exercise of his discretion refused to grant relief in the circumstances of this case and this court is being asked to reverse that decision.  The basic issues will be whether the judge misdirected himself, and/or whether his decision was wrong in the sense of exceeding “the generous ambit within which a reasonable disagreement is possible” [see Lord Fraser in G v G  [1985] 1 WLR 647 at 652D].
2.	The nature of the case is such that it is right so far as possible to anonymise the judgment.  Letters accordingly define the parties, and the facts will be set out only in broad terms and only in so far as necessary to identify the issues.
3.	The appellant (D) is a musician and songwriter.  The respondent (L) moved into his home and they lived together for some years.  After some years while the relationship was breaking down, L removed quantities of documents from D’s office, and registered a caution on the home.  The relationship ended in a major row. Inter-solicitor correspondence ensued.  L took delivery of a voice-activated tape recorder.  She says and the judge accepted that “the tape recorder was there for L’s protection in relation to domestic violence proceedings …” [Bundle 2 page 75].

4.	A number of conversations between D and L were recorded by L without the consent or knowledge of D. In the course of those conversations D referred to matters relating to D’s sexual proclivities.  L was as a result of their previous intimate relationship aware of those sexual proclivities, but they were not at that stage in the public domain.
5.	L commenced proceedings claiming an interest in the home.  In the course of those proceedings L was not straightforward either in her disclosure of the documents she had taken or in her disclosure of the tapes.  Indeed various assurances were given as to disclosure which later revelations showed to be untrustworthy.
6.	During the proceedings D himself gave evidence of his sexual proclivities as part of his case for resisting L’s claim.  That evidence was given by a statement which did not reveal an aspect (“the additional aspect”) which D sought to keep private.  D did however in his evidence given orally reveal “the additional aspect”.  L gave evidence which hinted at “the additional aspect” and which was publicised in a national daily newspaper during the currency of the trial.  The judge in his judgment given in open court referred to D betraying an interest in “the additional aspect”.  
7.	On the second day of the trial D applied for an interim injunction to restrain use of the documents and the tapes.  L gave a temporary undertaking and the trial continued. On the 4th day further evidence was served on behalf of L explaining the history of and her reason for making the tape recordings. No one wished the case to go into a fifth day and counsel for D did not apply to cross-examine L on the new evidence.   At the end of the 4th day, D renewed his application for an injunction in relation to both documents and tapes, and also applied for an order that certain aspects of the evidence given by D which included reference to “the additional aspect”, should be treated as having been given in private under CPR 39.2(3)(c).
8.	The judge heard extensive argument on the documents and tapes issues. It seems that the most extensive argument related to the tapes aspect, but late on in the argument the judge suggested the matter should be  adjourned on the basis that Mr Duckworth for D should identify those passages in the tapes about which D complained and on the basis that argument could be resumed on the date when the main judgment was handed down.  The transcript would indicate that Mr Duckworth accepted that suggestion.
9.	The judge then ruled that the CPR 39 matter should be heard in private and proceeded with that.  The judge gave judgment on the CPR 39.2(3)(c) application on 11th February.  He ruled that the oral evidence given by D as to his sexuality should be treated as given in private, but he made it clear that that ruling did not apply to evidence contained in D’s statement which itself referred to some of D’s sexual proclivities (though not “the additional evidence”), that evidence being put in deliberately and with the assistance of legal advice to combat L’s claim that L and D had become engaged to be married – the case of D was that their respective sexuality was destructive to any prospect that either would marry [see paragraph 62 main judgment page 76 Bundle 2].
10.	Mr Duckworth wrote to the judge with copy to Miss Mauger who represented L on 7th March explaining difficulties, which the late reception of evidence on 11th February had produced, and seeking to put in further evidence in rebuttal. Apart from a general comment as to the lack of opportunity to cross examine L, this letter and rebuttal evidence was not in any way directed at L’s suggested reason for making the tapes.
11.	The judge then handed down his main judgment on 31st March.  In that judgment he dealt with both the documents and the tapes issue.  On the documents he ruled that if L would not give an undertaking he would grant an injunction. On the tapes issue he ruled without seeing any part of the tapes.
12.	First he ruled against Mr Duckworth’s primary submission in this way:
“They [the tapes] feature in this case because D fears that in the course of an argument L or D may have said something about his sexual preferences or adventures that could be used to his disadvantage.  He has had all of the tapes since shortly before the trial and no such passage has been drawn to my attention.  Mr Duckworth submits that, nonetheless, as a matter of principle (and without reference to the contents) I can order the delivery up of tapes belonging to L, of conversations to which she was a party, in property occupied by her, to the other party to the conversations, they must be confidential and because his privacy has been invaded.  I do not consider that it is a breach of confidence for one party to disclose (or even publish) the content of a conversation with another.  Something more than those bare facts is required.”
He then referred to A v B plc [2003] QB 195 at 204ff  in order to identify “the something more” citing various propositions:
“(a)	The claimant (A) must have some interest of a private nature worthy of protection; examples of such interests are health, personal relationships, finances, behaviour that a reasonable person would understand was meant to be unobserved;
(b)	There must be some duty of confidence to which the defendant (B) is subject, and such a duty will arise whenever B is in a situation where he knows or ought to know that B can reasonably expect his privacy to be respected;
(c)	If there is an intrusion (e.g. by the use of surveillance techniques) in a situation where A reasonably expects his privacy to be respected then that intrusion will be capable of giving rise to liability to an action for breach of confidence, but the publication of the information will not necessarily be injuncted;
(d)	Between sexual partners outside marriage there is an especially acute conflict between the claims of privacy and the claims of freedom of expression.  Where there is a shared confidence which B does not wish to preserve, A’s right to have the confidence respected is not extinguished, but it is undermined: the extent to which it is undermined will vary with the nature (particularly stability) of the relationship.
(e)	A public figure is entitled to a private life, but his actions will be more closely scrutinised by the media: and if he has courted publicity has less ground for objection to the intrusion.
(f)	In drawing the balance sheet between the respective interests the Court does not act as an arbiter of taste; and it may often not be required to adopt a technical approach.
(g)	Once the balance sheet is drawn, it may not point clearly in either direction, and if this is the position interim relief should be refused.”
13.	He then conducted the balancing exercise concluding first that nothing on the tapes which was harmful had been drawn to his attention; the relief (he said) was being sought to gag L; second the tapes did not constitute a particular invasion of privacy being recorded in L’s own space, for the purpose of providing evidence in domestic violence proceedings, and because L had not sought to use the tapes in any other way; third it was D who introduced his sexuality into the proceedings; fourth D had said their was no commitment between D and L, it was not therefore open to him to rely on a relationship akin to husband and wife as giving rise to an obligation of confidence; fifth L’s obligations of confidence did not survive the termination of the relationship, and her freedom of expression must be given great weight.
14.	On the handing down of the judgment argument was rejoined over documents and tapes.  As regards documents a permanent injunction was granted and nothing more need be said.  As regards the tapes, Mr Duckworth identified the passages in the tapes publication of which D wished to restrain, and relied on written submissions previously before the judge to support the argument made on 11th February [page 77A Bundle 2].
15.	The judge delivered a further judgment.  He referred again to A v B plc and the balancing exercise.  He refused the injunction on four grounds.  The fourth is no  longer of materiality being a jurisdictional point as to whether he had the right to review his own main judgment.  That point is rightly not relied on by Mr Thacker for L in this court.
16.	The three points relied on were these:-
(i)	The judge said he was being asked to rule in the abstract, there being no indication of what L intended to do, and no evidence of an intention to abuse her freedom of expression; L was entirely free to tell her side of the story and “it is accepted (recorded the judge) that she is free to say that D has admitted interest in and participation in [his proclivities including ‘the additional aspect’]”; it should not be decided in the abstract whether she should be deprived of proving the truth of her assertion, before the court knows what L intended to say, to whom and in what manner.
(ii)	The tapes simply contained an admission of D’s sexual proclivities.  D had given evidence as to certain aspects.  The judge had recorded in his main judgment L’s evidence relating to “the additional aspect”.  Both were now in the public domain, and indeed to some extent published in the press; the only function of the injunction would be for D to be able to deny in public the truth he admitted in private, and to deprive L of her ability to prove the truth of admissions made to her.
(iii)	Since the balance did not come down clearly on D’s side, the injunction should be refused; the judge added that did not give L carte blanche; he was not prejudging an application that D might make in certain circumstances; he was not prepared to grant an injunction covering all circumstances for all time.
17.	At the commencement of the hearing of this appeal we asked Mr Duckworth  to make clear precisely the relief he sought.  That came about because he appeared at one stage to be seeking not simply an order to prevent publication of extracts of the tapes, but an order to prevent L revealing “the additional aspect” of D’s proclivities, learned by her not from the tapes, or even the conversations recorded on the tapes, but from her relationship over many years with D.  Mr Duckworth made clear that the relief he was seeking was confined to publication of identified extracts from the tapes.  This interchange identified the need to keep separate, consideration of the different ways in which an obligation of confidence may arise, and how different factors impinge on the way in which the court will approach the problem depending on the basis on which an obligation has been imposed.
18.	As long ago as 1913 in Ashburton v Pape [1913] 2 Ch 469 at 475 Swinfen Eady LJ said:
“The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.”
Thus either surreptitious behaviour or breach of a confidential relationship can give rise to a duty of confidence which would be protected by the court.  This is also emphasised in the judgment of Keene LJ in Douglas v Hello! [2001] QB 967 paragraph 167. 
19.	So far as L and D are concerned it is possible to dispose fairly immediately of any case based on confidence flowing from disclosures by D to L during their relationship.  It is unnecessary to inquire into the question whether the nature of their relationship was such as to give rise to the obligation of confidence in relation to either’s sexual proclivities or to get into any question whether disclosure once the relationship is over would continue to carry with it obligations of confidence, because D’s proclivities including “the additional aspect” are now in the public domain having been revealed in evidence and made the subject of a finding in the main judgment.  The admission made by Mr Duckworth and recorded in the judgment quoted in paragraph 15(1) above was rightly made and could not in any event now be withdrawn.
20.	But an obligation of confidence can be imposed by conduct.  If a person takes a photograph in a private place knowing that he or she is not allowed to do so, then subject to certain public policy justifications, an obligation not to publish that photograph will be imposed.  As already indicated the Chancery courts have been granting injunctions to prevent publication of  material taken in such circumstances for many years.  The Douglas v Hello! litigation is an example of the court exercising this jurisdiction in the modern era and of course with the added impetus of the Convention on Human Rights.  It also illustrates certain important matters. First when the court of appeal considered whether to grant an interim injunction they were not convinced that at a trial the circumstances would be such as to impose the obligation of confidence on the  unauthorised photographers.   Brooke LJ recognised the jurisdiction to which I have referred in his judgment at paragraphs 68-71 particularly paragraph 71, but he was concerned as to whether the circumstances that would be established at the trial would impose the obligation of confidence (see paragraph 59).   Keene LJ also recognised the same principle when saying in paragraph 167 to which I have referred:
“…if the present case concerned a truly private occasion, where the persons involved made it clear that they intended it to remain private and undisclosed to the world, then I might well have concluded that in the current state of English law the claimants were likely to succeed at any eventual trial.”
If the court had been satisfied as to the existence of the obligation of confidence there is little doubt that they would have granted an injunction.  However it appears that the court felt there might well be circumstances where the Douglases would not establish the behaviour necessary for a breach of confidence claim at the trial and thus considered the Douglases prospects by reference to a possible tort of privacy.  This formed the main subject matter of Sedley LJ’s judgment.
21.	At the trial the Douglases did establish the circumstances giving rise to an obligation of confidence.  Lindsay J was referred both to cases prior to the Human Rights Act and to those since including A v B plc [2003] QB 195 CA and Campbell v MGM [2003] QB 633, CA.  The recent cases he suggested represented a fusion between the pre-existing law of confidence and rights and duties arising under the Human Rights Act.  He set out helpfully the relevant principles which derived chiefly from the recent cases.  Certain of those principles are of direct relevance to the point at issue on this appeal:
“(ix)	If there is an intrusion in a situation in which a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be justified –A-v-B at paragraph 11(x).
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(xiii)	It can be right to regard unauthorised photographs as “information” for the purposes of the law of confidence.  In the case before me the unauthorised photographs have been said to convey the information “This is what the wedding and the happy couple looked like” – Douglas supra at paragraph 138 per Sedley LJ.  The law of confidence can well encompass photographs of such an event and no less so because the event could have been described in words or by drawings.  The photographs:-
“… conveyed to the public information not truly otherwise obtainable, that is to say, what the event and its participants looked like.  It is said that a picture is worth a thousand words.  Were that not so, there would not be a market for magazines like Hello! and OK!  The result is not obtainable through the medium of words alone, nor by recollected drawings with their inevitable inaccuracy.  There is no reason why these photographs inherently should not be the subject of a breach of confidence.”
per Keene LJ in Douglas supra at paragraph 165.
(xiv)	It is a familiar course for Chancery Judges to grant injunctions to restrain the publication of photographs taken surreptitiously in circumstances such that the photographer is to be taken to have known that the occasion was a private one and that the taking of photographs by outsiders was not permitted – Douglas supra at paragraph 68 citing Creation Records Ltd –v- News Group Newspapers Ltd [1997] EMLR 444 and Shelley Films Ltd –v- Rex Features Ltd [1994] EMLR 134.
(xv)	It is well settled that equity may intervene to prevent a publication of photographic images taken in breach of confidence.  If, on some private occasion, the prospective claimant makes it clear, expressly or impliedly, that no photographic images are to be taken of them, then all those present will be bound by the obligation of confidence created by their knowledge (or imputed knowledge) of that restriction – Douglas supra at paragraph 71 per Brooke LJ.”
22.	Furthermore the fact that the Douglases had published their own photographs thus putting “information” into the public domain was held to be no answer to their claim against the unauthorised photographers (see paragraph 213).  In addition Lindsay J in fact granted a permanent injunction at the trial.
23.	It seems to me (though I accept Lindsay J did not put it quite this way) that the important point to emphasise is that a photograph is more than the information you get from it.  A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photograph provides or even if the information revealed by the photograph is in the public domain.  It is no answer to the claim to restrain the publication of an improperly obtained photograph that the information portrayed by the photograph is already available in the public domain.  I should add that to restrain the use of an improperly obtained photograph leaving the person free to describe the information it portrays is clearly a lesser restriction on freedom of expression, and in any event prima facie Article 10 (2) would recognise that obligations of confidence should be upheld.
24.	The same principle seems to me to be applicable to a tape recording taken by one person of a private conversation with another without the consent of that other. There may be circumstances where such taping is justified and I will turn to that question below, but prima facie equity should impose a duty of confidence in relation to the tape quite separate and distinct from such obligation as may exist in relation to the information revealed on the tape.  Just as a photograph can make a greater impact than an account of the matter depicted by that photograph, so the recorded details of the very words of a private conversation can make more impact, and cause greater embarrassment and distress, than a mere account of the conversation in question.
25.	When one looks at the reasoning of the judge in this case and indeed when one looks at the key paragraphs in the skeleton argument of Mr Thacker supporting the judge’s decision paragraphs 21 to 26, the issues as to the obligation of confidentiality owed in relation to the information on the tapes and confidentiality of the tapes themselves having regard to the way they were obtained, are not kept distinct.  It may not be relevant and certainly is not as relevant to the tapes alone whether what is on the tapes is something about which L is entirely free to talk, or whether what is on the tapes is now in the public domain.  It is not relevant that when the tapes were made the relationship of the parties had broken down.  So far as the tapes alone were concerned D is entitled to rely not on the permanence of any relationship he had with L but on the secret nature of the taping of a private conversation. In my view therefore the judge did misdirect himself.
26.	In any event I would suggest that the judge’s approach to the taping by L was itself flawed.  It seems to me that the correct starting point was that these tapes were being taken secretly related to private matters being discussed in a private conversation and were taped without the consent of D.  It may be less wrong for this to have been done by L in her own shared space than if she had put a listening device into what was D’s space.  It may also make it less wrong that her reasons were  for the purpose of providing evidence  in the event of domestic violence proceedings.  [If the tapes provided such evidence and this application were concerned with tapes that provided such evidence the position would be entirely different.]  But equity should as it seems to me impose on the conscience of the person who secretly takes tapes of a private conversation relating to private matters for a purpose that may be justified an obligation not to use the same for any other purpose.  I would add for the avoidance of doubt that this case is concerned with two persons in private conversation and the taping of a conversation by one person about what at the time were private matters without the consent of the other.  Even in that situation some consideration to Article 10 must be given, and a balancing exercise performed (see further below), but other cases and other factual situations will obviously produce different balancing exercises.
27.	Can L justify using the tapes for any purpose?  Is this a case where equity should grant relief in D’s favour?  First I should deal directly with Article 10 and the freedom of L’s expression.   L as I have already said is free to say what she likes.  Does it restrict her freedom not to be able to back up what she has said by reference to the tapes?  If so, does Article 10 require her to be left free to do so?  I can see that L might prefer to have the tapes to back up whatever she wants to say, but in my view if she had secretly taped for that purpose simply because she wanted to publish otherwise private material that would have been an improper purpose and equity would have imposed the duty of confidence and prevented her from doing so.   In my view Article 10 does not require any different result.  On the other hand if D had been seeking to mislead the public by actively asserting that his sexuality did not involve the additional sexual proclivity, that might have justified taping even a private conversation to provide proof that the public were being misled.  Even if injunctive relief were granted at this stage, it would therefore seem to me that circumstances could arise if L chose to reveal what she is entitled to reveal and if D chose to deny publicly the truth, where the court would release L from any injunction granted.  In one sense the question is whether L should be trusted now only to use the tapes for a legitimate purpose.
28.	That brings me to Mr Thacker’s most powerfully argued point.  He submitted that the judge found there was no indication that L intended to abuse her right of freedom of expression.  He said there was no evidence that she intended to use the tapes for any other purpose than that for which she had obtained them, and he said on instructions that his client had no intention of publishing the tapes for any other purpose.  Although no undertaking was offered in that regard he submitted that no relief should be granted for these reasons alone.
29.	When a person has secretly taped a conversation and when the history demonstrates a serious reluctance to produce the tapes pursuant to obligations of disclosure, and even the giving of false assurances as to completion of disclosure, there is an argument for saying that the present lack of evidence of intention should be viewed with some scepticism.  But equally L has not made any attempt to publish so far and there is thus force in Mr Thacker’s submission.  Indeed it is one the judge clearly accepted having had the opportunity of assessing L in the witness box.
30.	Finally Mr Thacker showed us some offensive messages written or copied by D to L or to her advisers.  A letter to the Recorder who tried one aspect of the dispute between them is amongst them.  Mr Thacker submits that he who comes to equity must do so with clean hands.  The messages are thoroughly unpleasant and threatening.  There is considerable force in the submission that equitable relief should be denied to D on this ground alone. 
31.	Taking the points made in paragraphs 27-30 together, and taking account also of the fact that in this case what is sought is an injunction relating to sections of the tapes which, when taken in the context of the whole picture now in the public domain, cannot be said to be seriously damaging, I would refuse D any relief.
32.	I would accordingly dismiss the appeal.
Carnwath LJ :
33.	I agree.
Lord Phillips MR : 

34.	On the face of it, publication of a covert tape recording of a private conversation involves a breach of confidence, which the Court should restrain. Here, however, there are a number of factors which militate against a grant of the discretionary relief of an injunction:
i)	The judge held that the respondent made the tape recording for her own protection and that finding has not been challenged;
ii)	The respondent has done nothing that indicates that she intends to publish the matters on the tapes which the appellant does not wish to be disclosed;
iii)	Those matters have already been brought into the public domain;
iv)	Those matters are a small part, and in my view an insignificant part, of the personal information that the respondent has obtained about the appellant in the course of or as a result of their relationship. No injunction has been sought in relation to the remainder of this information and the respondent has not published, or threatened to publish it;
v)	The appellant has written letters of a nature which would, in any event, have made me reluctant to afford him equitable relief.
35.	For these reasons I agree that this appeal should be dismissed.
Order:  Appeal dismissed with costs of appeal.
(Order does not form part of the approved judgment)