The private Princess (page xiii, paperback preface)

My piece in today’s Daily Telegraph discusses a judgment last December in which the High Court applied von Hannover v Germany. It also suggests that clamants’ Conditional Fee Agreements (see page 216) may be unlawful.

The popular Canadian folk singer and composer Loreena McKennitt went to the High Court in London last November to block publication of a book written about her life by Niema Ash, a former friend and employee. Ash defended herself without lawyers after her insurance funding ran out a week before the trial.

The entire hearing took place behind closed doors and so the judgment attracted little interest when it came out just before Christmas.

Since then, lawyers have been poring over Mr Justice Eady’s judgment, advising celebrities that they now have a better chance of protecting their private lives while warning media clients about the ruling’s chilling effect on free speech. The case is important because it is one of the first to apply a ruling from the European Court of Human Rights in favour of Princess Caroline of Monaco, delivered in June 2004. Human Rights judges held that paparazzo photographs showing the princess shopping or on holiday with her family had been published in breach of her right to respect for her private life under Article 8 of the Human Rights Convention.

That case may have been about images, Mr Justice Eady said last December, but the principles expounded by the Strasbourg court “are not confined to information in photographic form’’.

It was clear from that ruling, the judge added, “that there is a significant shift taking place between, on the one hand, freedom of expression for the media... and, on the other hand, the legitimate expectation of citizens to have their private lives protected’’. As Lord Woolf had observed, “a public figure is entitled to a private life’’.

Mr Justice Eady granted McKennitt an injunction preventing Ash from publishing specified passages in the book, Travels with Loreena McKennitt: My Life as a Friend. Needless to say, those passages are not quoted in the published judgment, though the judge gives enough of a flavour for us to work out which areas of McKennitt’s life he regards as giving rise to a reasonable expectation of privacy.

They included, for example, her state of health following a bereavement; “household minutiae’’ about her Irish cottage such as “what was under the lino, the sanitary arrangements, or how many bunk beds were put up when visitors came to stay’’; intimate conversations with a trusted friend; negotiations over a recording contract; settlement of a legal action; and, intriguingly, “something which happened in a bedroom in a hotel in Hawaii, which Ms Ash was sharing with Ms McKennitt and her mother. It happened when Ms McKennitt was aroused from sleep after going to bed exhausted’’.

On the other hand, Mr Justice Eady was not prepared to stop Ash reporting “passing references to friendships with various men’’ that he did not regard as “objectionable or offensive by modern standards’’; the “general background’’ to the death of McKennitt’s fiancé in 1998 (as opposed to her emotional reaction to bereavement); general conversations about record companies; a shopping trip in Italy, even though this involved buying furniture and other items for her home; the fact that from time to time she had gone busking in London; or “the panic and stress of a European tour and ... an account of how Ms McKennitt was short-tempered with one of her staff’’.

Ash now has new lawyers, David Price Solicitors and Advocates. On Tuesday, they announced that she was seeking permission to appeal. Korieh Duodu, her advocate, is arguing that the judge had wrongly categorised certain passages in the book as confidential when in reality they were trivial, anodyne and in the public domain. He says the judge had failed to give proper weight to Ash’s rights to freedom of expression under Article 10 of the Human Rights Convention; the judge had been wrong to take account of the author’s alleged motives, such as revenge; the judge had imposed too high a hurdle when allowing information to be published in the public interest; and so on.

Lawyers are hoping that the Court of Appeal will agree to hear the case, delivering authoritative guidance on the fluctuating balance between Article 8 and Article 10. In any event, Ash’s lawyers are to be commended for agreeing to handle the appeal on a conditional fee arrangement, or CFA. This means they will charge their client nothing if she loses her appeal, but up to double their normal fees if they win - in which case the costs would normally be payable by McKennitt.

It is one thing for defendant media organisations to use CFAs; quite another for wealthy claimants to do so. In 2004, Naomi Campbell funded her successful privacy appeal to the House of Lords on a CFA, leaving the Daily Mirror to pay Schillings, her lawyers, £594,000, including a “success fee’’ of £280,000, for the Lords appeal alone. The newspaper was facing a total bill for the model’s legal costs of more than pounds 1 million, even though she had won only £3,500 in damages and even though only four of the nine judges who considered the case thought that the newspaper should have been liable at all.

After a further challenge by the Mirror, the law lords concluded last October that CFAs were not inconsistent with the right to freedom of expression under Article 10. But that approach has been criticised by Keir Starmer, QC, and Anthony Hudson in an opinion obtained by Harvey Kass, lawyer for Associated Newspapers. The two counsel say that Article 10 is engaged - and possibly violated -”where the costs incurred by a claimant and ordered to be paid by a media defendant are ‘excessive’ and disproportionate to the value of the claim’’.

To demonstrate that CFAs were compatible with Article 10, they explain, the Government would have to persuade the Human Rights Court that success fees of up to 100 per cent were necessary and proportionate to the legitimate aim of ensuring access to justice. But there is nothing in the convention “that requires litigants to receive the help of a litigation partner in a very expensive firm in every case’’: it could be done more cheaply through a system of cost-capping.

Starmer and Hudson believe it is “highly arguable that a system in which costs are awarded against media defendants at a level that is higher than necessary to ensure access to justice... is incompatible with Article 10’’.

The Government should take the hint and protect free speech by changing the law now.

Ashworth and Ackroyd (page 148)

On page 154, I say that that the Court of Appeal sent a clear message to Ashworth Hospital: “back off, or risk losing the case”. They did not back off. Today, they lost their case.
Ashworth was ordered to pay the legal costs incurred by Robin Ackroyd, the reporter whose sources the hospital was seeking to identify.
The National Union of Journalists, which supported Ackroyd in court, said the judgment had maintained a fundamental principle: “that there is a strong public interest in upholding journalists’ right not to reveal their sources”.
Mr Justice Tugendhat said that the keeping patients’ records from unauthorised disclosure was “of the highest importance”. On the other hand, freedom of expression in a case like this would attract “the highest protection”.
Since the end of 1999, when information was published in the Daily Mirror about Brady’s treatment while on hunger strike, there had been no further disclosures.
“Considering the facts as I now do…” the judge concluded, “it has not been convincingly established that there is today a pressing social need that the sources should be identified.”
He added that to require Ackroyd to disclose his sources “would not be proportionate to the pursuit of the hospital’s legitimate aim to seek redress against the source, given the vital public interest in the protection of a journalist’s source”.
The judge stressed that nothing he had said should be taken “as providing any encouragement to those who would disclose medical records”.
He said he made his decision in the light of the passage of time and because of new evidence indicating that the source did not act for money. The extent of the material leaked by the source was more limited than previously understood.
“In addition, the stance of Ian Brady has changed, and I have not found that the disclosure was made without his consent,” said the judge.
“I have heard the evidence of Mr Ackroyd and have concluded that he was a responsible journalist whose purpose was to act in the public interest.”
Speaking after the judgment, Ackroyd said that, odious though Brady’s crimes had been, the murderer had been mishandled and mistreated in hospital.
“This was, and still is a matter of public interest, not least because it led to the longest-running hunger strike in British penal history,” he added.
Ackroyd said he had been vindicated, though Ashworth Hospital Authority’s six-year legal battle to discover his sources had “cast a shadow” over his personal and professional life.
“The authority’s pursuit of me has been relentless and entirely unamusing,” he said. “This is the third time the case has been before the High Court. The matter should now be at an end and yet it seems destined to go to the Court of Appeal for a third time. I’ve read Kafka. I really must get a copy of Bleak House.”
Mersey Care NHS Trust, which now runs the secure hospital, said later that the confidentiality of patient notes was an underlying principle of the NHS and the breach of confidentiality in this case was the first and only one of its kind at Ashworth.
The Trust welcomed the judge’s “ringing endorsement” of the maintenance of patient confidentiality.