Another privacy win for the media.
A privacy claim brought by an ex-business associate of Lord Sebastian Coe in relation to an Evening Standard article which published leaked business emails was dismissed on Tuesday by the High Court. Mr Justice Tugendhat’s judgment rejected the claim in the most clear and scathing of terms. He found that the business associate in question, a Mr Peter Abbey: 1) had no reasonable expectation of privacy in relation to the information complained of; 2) that, in any event, the article was published in the public interest and 3) that the claim was an abuse of the court process and an attempt at extortion.
The Claimant has not asked the court for permission to appeal. The judgment can be accessed here: Peter Abbey v (1) Andrew Gilligan and (2) Associated Newspapers Ltd.
The Claimant is a business consultant with a chequered business history. He helps companies attract investors and raise finance and has, over the years, been linked as either a director or a consultant to various different business initiatives. He has had mixed success and has, as a result, featured frequently in Private Eye as being an individual connected to a number of failed and bankrupt businesses. He is currently subject to an Individual Voluntary Arrangement. Yet despite his controversial commercial record, the Claimant was someone who Lord Coe chose to go into business with in March 2005 when he allowed him to assist in the formation of a company called Sebastian Coe Limited. This company was set up for the provision of speakers, product endorsements and consultancy advice on sports related activities. As the judgment states, Lord Coe is well known: a winner of Olympic Gold medals, a former member of Parliament and a very well-known figure in public life.
On 6 July 2005 London was selected as the host for the 2012 Olympic Games. Three weeks later, on 22 July 2005, Lord Coe and the Claimant set up a company which later became the Complete Leisure Group or “CLG”. On 3 October 2005 Lord Coe was appointed Chairman of LOCOG (the organising committee set up to stage the 2012 London Olympic and Paralympic Games). In November 2005 CLG agreed to acquire Sebastian Coe Limited and with it the services, image and intellectual property rights of Lord Coe for a period of 40 years or until his death.
On 8 November 2005 CLG announced its proposal to raise up to £1m by the sale of up to 1 million Ordinary Shares at £1 each. Various individuals took up this subscription and invested in CLG. These investors were no doubt attracted to a company whose objective was to profit from the heightened image and popularity of Lord Coe. The investors had been led to believe that the company was due to float on the Alternative Investment Market and hoped that this would increase the value of their shareholding significantly. Many of the investors were introduced to CLG by the Claimant in his capacity as consultant to CLG. On 31 May 2006 CLG re-registered as a Public Limited Company. A second subscription to raise a further £500,000 was announced in August 2006. At this time Sebastian Coe Limited had a projected annual turnover of £850,000.
The Claimant was not only heavily involved in raising investments for CLG, he also helped with the practicalities of setting up both CLG and Sebastian Coe Limited. Their registered offices were listed as Mr Abbey’s place of business and he introduced both solicitors and accountants to the companies. He was also a shareholder in CLG (through one of his companies, Berkeley Consultants Limited).
The Dispatches Programme
On 10 September 2007 Channel 4 broadcast a Dispatches programme which focused upon the likely cost of the 2012 Olympics to the taxpayer and considered whether any individuals connected to the Olympics stood to personally profit. A section of the programme focused upon Lord Coe’s earning capacity in the context of his Olympic role. The programme considered whether Lord Coe sought to profit from the Olympics via CLG and touched upon the Claimant’s involvement.
Prior to the broadcast, journalists from Dispatches had contacted both Mr Abbey and Lord Coe for comment. Carter Ruck on behalf of Lord Coe denied that Lord Coe was seeking to profit from his Olympic position, explained that CLG was created to ring-fence his private business interests from his public responsibilities and sought to distance Lord Coe from the Claimant by explaining that the Claimant did not play any part in the management of CLG.
Shortly before broadcast a journalist working on the Dispatches programme came into possession of copies of emails about CLG which he had been given by a confidential source. The emails were neither hacked nor stolen. The emails suggested that CLG was experiencing some financial difficulties and that certain investors were demanding their money back. It was too late to incorporate the emails into the Dispatches programme, yet the journalists on the programme felt that the content of the emails clearly merited legitimate journalistic enquiry and decided that there was a clear public interest in giving another journalist the chance to pursue the story. They passed the emails to the journalist Andrew Gilligan (the First Defendant) who in turn decided that it was in the public interest to publish quotes from them in the article complained of.
The article entitled “Email from Coe investors: We want our money back” was published in the Evening Standard on 14 September 2007. It referred to a number of the leaked emails to show that CLG was suffering financial difficulties and also that Lord Coe appeared not to have achieved the complete separation of his business interests from his public Olympic role as he had claimed. The article also mentioned the Claimant’s involvement with CLG together with a reference to his controversial career.
The First Defendant had made attempts to contact the Claimant prior to publication of the article but the Claimant declined to comment and in fact denied in evidence that he had been aware of the story before its publication. The Claim The Claimant did not complain about the article at the time of publication. Instead he waited for nearly four years to bring a complaint against the Defendants, which included, amongst other things, various criminal allegations including an allegation of email hacking.
The Claimant admitted that he was prompted to do so when he read about payments being made to individuals by the News of the World in relation to the phone hacking scandal.
When the Claimant’s claim was finally formulated, most of the allegations of criminality had been dropped and instead the claim was for breach of confidence and/or misuse of private information. The particulars of claim did include a speculative allegation of email hacking but accepted that the emails could have been obtained by other means. In any event the Claimant later withdrew the hacking allegation entirely.
The Claimant’s claim fell into two parts:
- The fact that the Defendants obtained the emails with a view to publication was claimed to be in itself an actionable breach of confidence and/or unjustified infringement of his privacy; and
- There was a further actionable breach of confidence and/or misuse of private information in respect of the publication of parts of some of the emails obtained in the article.
The Defendants contended that the Claimant’s stale claim was an abuse of process and further denied that the emails contained information that was confidential to the Claimant and asserted that the Claimant could have no reasonable expectation of privacy over such information. If the Defendants were held to be wrong on that, they argued that there were a number of different public interest grounds which justified both the obtaining of the relevant emails and their subsequent publication.
- Title to sue – Mr Justice Tugendhat held that the claim failed at the first hurdle because the information complained of related to the affairs of CLG and was not information that was personal to the Claimant. As such the Defendants did not owe a duty of confidentiality to the Claimant and the Claimant had no reasonable expectation in relation to any information which was not personal to him.
- The case on obtaining – there was one email which did contain information that was personal to the Claimant. This email was not referred to in the article. Mr Justice Tugendhat held that the information was not so clearly private or confidential that it could be said that it was a breach of confidence or misuse of private information for Mr Gilligan to obtain and read it.
- Public interest – the Court went on to decide that in any event the article was published in the public interest. A number of public interest arguments were accepted by the Court. Namely:
- In correcting the false impression that had been given by representatives for Lord Coe that the Claimant did not play a part in the management of CLG. The emails showed that the Claimant did have an active role in the management of CLG and held that it was therefore in the public interest to correct that false picture.
- In contributing to a debate of public importance in exploring whether Lord Coe had been able to achieve a clear separation between his public and private duties and interests. There was no adverse finding against Lord Coe and no suggestion that he had breached his duty to prevent any conflict between his duty to LOCOG and his interests in CLG. However the Court accepted that Lord Coe’s LOCOG PA also had a CLG email address and that there was public interest in raising this issue as a topic of public debate.
- In exposing the inability of CLG to pay its professional advisers and other debts as they fell due, and the inability or the unwillingness of CLG’s directors to file accounts when they were due, which were both matters which could have seriously put into question Lord Coe’s ability to properly carry out his Olympic role.
- In also exposing the business relationship between Lord Coe and the Claimant, which, given the Claimant’s professional history, called into question Lord Coe’s private and professional judgment. Due to Lord Coe’s role of national importance, the public had an interest in knowing to whom he had decided to entrust his private business interests to.
- Abuse of Process – the Court found that the Claimant’s repeated allegations of serious criminality against the Defendants, in circumstances where there was no evidence to support such allegations, were made solely for the purpose of obtaining a settlement on terms which did not reflect the merits of his claim. This conduct was held to be an attempt at extortion and an abuse of the process of the Court. In addition the Court found that the claim is a “Jameel” type of abuse of process in that the costs of the litigation are out of all reasonable proportion to the possible benefit the Claimant could have achieved were he to have succeeded.