Douglas v Hello! Ltd (No.6) Also known as: Douglas and others v. Hello!

Ltd and others (No 3) Court of Appeal CA (C v D v) Lord !h ll ps of "orth #atravers #$% Clarke and Neu&erger L'' L($D !H)LL)!* (+ "($,H #A,$A-.$* #$ handed down the following judgment of the court, to which all members of the court had contributed. Contents The background The basic facts / Hello! Ltd ("Hello!"), the publishers of "Hello!" magazine, appeal against awards of
damages made by Lindsay J in favour of Mr Mi hael !ouglas and his wife Ms "atherine #eta$Jones ("the !ouglases"), and %orthern & 'hell pl ("()! "), the publishers of "()!" magazine* +he appeal against the award of ,-.,/00 in favour of the !ouglases is in respe t of liability only1 the appeal against the award of ,-,022,-3/ in favour of ()! is in respe t of liability and 4uantum* +he !ouglases and ()! ontingently ross$appeal1 the issues raised on the ross$appeals on ern the liability of Hello! Ltd to ()!, and the damages awarded to the !ouglases* 0 +he omple5 fa tual and pro edural history of this matter is fully and learly set out in paras -$-67 of Lindsay J8s 9udgment on liability :;002< 2 =ll >? 77/* @e shall limit ourselves to the essential fa ts ne essary to determine the issues raised before us* 3 (n -A %ovember ;000, Mr !ouglas and Ms #eta$Jones, who were and are very well Bnown film stars, were married at the Claza Hotel, %ew DorB* =s soon as the ouple8s engagement was announ ed in early ;000, there was intense interest in this event from ertain se tions of the media1 in parti ular, from the publishers of "()!" and "Hello!" magazines* =s the 9udge said, in para -2 of his 9udgment, both those magazines

"provide a regular diet of photographs and text of and about royal, but, more usually, entertainment, sporting, and social celebrities, with photographs taking precedence over text." Most of those photographs are posed, and many of those that are not will have been taken with the consent of their subjects. As the judge said, at para 1 , the two maga!ines are "plainly keen rivals in the same market", and they each had an average weekly circulation in the "nited #ingdom of just over $ %,%%% copies. 1 Eoth publishers approa hed the !ouglases with a view to obtaining the e5 lusive right
to publish photographs of the wedding re eption* +he !ouglases de ided, with a view to redu ing what Ms #eta$Jones alled "the media frenzy ", that they would grant that right to one publisher* = ording to Mr !ouglas, they regarded this ourse as "the best way to ontrol the media and to prote t our priva y"* =fter some negotiations, they entered into a ontra t with ()! ("the ()! ontra t") on -0 %ovember, eight days before the wedding* 2 Fn its preamble, the ()! ontra t referred to "the publi ation of an arti le, in luding story and photographs ( olle tively 8the arti le8) relating to the wedding"* Ey lause -, ()! agreed to pay ,300,000 ea h to Mr !ouglas (therein "M)!"), and to Ms #eta$Jones (therein ""#J")* Ey lause ;, it was agreed thatG

"M#& and '() hereby transfer to *#+ the exclusive right to publish ... the photographs

,as defined in para - below. and the text referred to herein from the date of the wedding and for nine months thereafter." 6 Ey lause 2, ()! were permitted to publish "the approved arti le" in "()! " magazine*
Ey lauses . and 3, Mr !ouglas and Ms #eta$Jones *141 respe tively agreed that ()! would have, for the nine$month period referred to, "the e5 lusive right *** to onsent to use" all photographs and other liBenesses of the !ouglases in relation to the wedding* Ey lause /, the !ouglases were to hire a photographer at their own e5pense "to taBe olour photographs of the wedding (8the photographs8)"* +hey also agreed to "use their best efforts to ensure that no other media *** shall be permitted a ess to the wedding, and that no guests or anyone present at the wedding *** shall be allowed to taBe photographs"* +he !ouglases also undertooB to "use their best efforts" to ensure that their guests did not publish any details of the wedding* 3 Ey lause 6, the !ouglases agreed that they would pro ure "9oint ownership of all opyright in the photographs", and that their sele tion of the approved photographs would be provided to ()! by ;; %ovember ;000* ()! agreed that they would only publish photographs approved by the !ouglases* "lause A was on erned with the rights and obligations of the parties in relation to the te5t of an intended arti le and interview with the !ouglases about the wedding, to be published in "()!" magazine* "lause 7 entitled ()! to determine the ontra t if "the photographs *** are not of suffi ient 4uality or 4uantity for a feature of this signifi an e"* 4 Ey lause -;, the !ouglases agreed not to authorise the publi ation of any photographs of the wedding for the period of nine months, without the prior onsent of ()!* Hnder lause -2, if any unli ensed third party used any photograph (or other liBeness of the !ouglases) in onne tion with the wedding, ()! agreed, if so re4uested by the !ouglases, to "pursue all ne essary legal a tion to ause su h third party to ease su h infringement"* "lauses -. and -3 provided for a sharing between ()! and the !ouglases of any sum over ,-m re eived by ()! "from all sour es from the e5ploitation of the arti le"* 5 Ey lause -/, the !ouglases undertooB toG

"take all reasonable means to provide such security ,approved by /*#+/ maga!ine. during the entirety of the wedding proceedings ... as is necessary to ensure that third party media ... and0or members of the public ... are unable to obtain access ... in order to minimise photographs ... of the wedding ... being made available to third party media." 'lause 11 contained a confidentiality provision, and clause 12 stated that the contract was governed by 'alifornian law. /6 +he !ouglases had sent out invitations to the re eption to around -;0 family
members, a large number of personal friends, and many elebrities* +he invitations in luded a politely worded statement whi h made it lear that no photographs were to be taBen* +he !ouglases also hired appropriate photographers for the event* +hey duly tooB steps to ensure that there were tight se urity arrangements at the hotel on -A %ovember* Fndeed, well before -A %ovember, there were se urity staff in pla e* (n -6 %ovember, the day before the wedding, entry ards were delivered to ea h of the 230 wedding guests, with a view to ensuring, by means of a oded marBing on ea h ard, that, so far as possible, no unauthorised person got in* // +he guests began arriving at the hotel at about 6*20 in the evening of -A %ovember* +here were spee hes, entertainers, musi , and dan ing* +he *142 aBe was ut at midnight, and the re eption ended around 3*20 on the morning of -7 %ovember* =lthough the event appeared to have been an un4ualified su ess, it transpired that a paparazzo, Mr ?upert +horpe, had infiltrated the re eption, and surreptitiously taBen photographs, in luding some of the bride and groom (together and separately)* How this happened has still not been e5plained, at least in these pro eedings* /0 Mr +horpe then onta ted another paparazzo, Mr Chilip ?amey, who was based in "alifornia, with a view to selling the -3 photographs that he had surreptitiously taBen*

+hey in luded si5 ("the unauthorised photographs "), whi h were, in due ourse, thought to be of suffi ient interest and 4uality to publish* +hese si5 photographs were des ribed by the 9udge in these terms, in para 6/G

"3he photograph of the bride going down the aisle towards the wedding ceremony on the arm of her father cuts off all of him but his arm. 3wo show the bride eating, one of which has the groom holding the fork down into her mouth. 4n one she playfully holds up a cake knife at her husband. 4n one taken from a very low level she dances, but not with the groom. Another, hopelessly out of focus, shows the bride and groom kissing. 3he bride/s dress is shown to a greater or lesser extent in all six, and parts of the very elaborate wedding cake are visible in three." /3 Mr ?amey immediately approa hed potential pur hasers, in luding Hello!* %egotiations
between Mr ?amey, in "alifornia, and Ms 'ue %eal, then employed by Hello! as a pi ture editor in London, were 4ui Bly on luded* =t some point during -7 %ovember, with the authority of her superiors in Madrid, Ms %eal agreed to pay ,-;3,000 for the e5 lusive right to publish the unauthorised photographs in "Hello!" magazine in the H), and in its sister publi ations in 'pain and in Iran e* +he 9udge had little diffi ulty in on luding that both Mr ?amey and Hello! would, or at least ought to, have Bnown of the ()! ontra t, and of the sort of terms it would have in luded (in parti ular, with regard to e5 lusivity), as well as of the elaborate se urity pro edures to prevent intrusion and unauthorised photography at the re eption* /1 +he staff of "Hello!" magazine then started to prepare for the ne5t edition on the basis that it would in lude the unauthorised photographs* Meanwhile, ()! learnt that unauthorised photographs had been taBen and were on the marBet* +he !ouglases were informed, and were, a ording to their eviden e, not surprisingly "sho Bed"* (n learning that Hello! had bought, and were intending to publish, the unauthorised photographs, the !ouglases and ()! applied for, without noti e to Hello!, and obtained from Eu Bley J, an interlo utory in9un tion on ;0 %ovember* +his in9un tion, whi h restrained Hello! from publishing photographs of the wedding, was ontinued by Hunt J the following day, after a hearing at whi h Hello!, as well as the laimants, were represented* /2 Hello! appealed and after a hearing over two days the "ourt of =ppeal (ErooBe, 'edley and )eene LJJ) announ ed, a little before 3 p m on ;2 %ovember, that the appeal would be allowed and the interlo utory in9un tion lifted* ?easoned 9udgments were given later, on ;- !e ember ;000, and are reported at :;00-< JE 7/6* /6 Ft subse4uently transpired that some of the eviden e put before the "ourt of =ppeal on behalf of Hello! was seriously ina urate* Iirst, the draft *143 statement of their publishing dire tor, whi h was put before the ourt even though she had de lined to sign it, stated that Hello! were unaware that unauthorised photographs were intended to be taBen* Fn fa t, they were aware that an attempt would be made to taBe landestine photographs, although they had not in any way ommissioned, or even agreed to pur hase, any su h photographs* 'e ondly, the Mar4uesa de Karela, who fre4uently supplied features to "Hello!" magazine, signed a manufa tured letter to support the story in whi h she said that it was her ompany, %eneta (verseas Ltd, whi h had sold the unauthorised photographs to Hello!* +his was an invention, whose ini4uity is reinfor ed by the fa t that it was persisted in at trial even to the e5tent of the produ tion of false apparently supportive invoi es* +hirdly, the third defendant, 'enor 'an hez Jun o, the editor in hief of "Hello!" magazine (and ontrolling shareholder in Hello!8s parent ompany), stated that he had no previous onta t with the providers of unauthorised photographs* =s Lindsay J subse4uently found, 'enor 'an hez would have Bnown this would have been understood to be a referen e to the Mar4uesa, and, as so understood, this was untrue* /3 Fn anti ipation of the possibility that they would be able to publish the unauthorised photographs, Hello! had finalised the /27th issue of their magazine to in lude them (in luding one on the front over)* +hat issue of "Hello!" magazine was distributed to

newsagents on ;2 %ovember, and was available to be pur hased by the publi throughout the H) on and after ;. %ovember* /4 ()! had originally intended to publish the authorised photographs over two issues, its ;.;nd and ;.2rd, whi h were respe tively due to ome out on 20 %ovember and / !e ember in London, and a day later in the rest of the Hnited )ingdom* However, on dis overing the e5isten e of the unauthorised photographs, they de ided to bring the publi ation forward* +his meant that the sele tion of photographs was an e5er ise arried out by the !ouglases "in some haste ", rather than being "a leisurely, unhurried and pleasant pro ess" to 4uote from para AA of the 9udgment* =s the 9udge found, the need for e5pedition resulted in e5pense, whi h would not otherwise have been in urred* /5 =s a onse4uen e, a large number of the authorised photographs were in luded in the ;.-st edition of "()!" magazine, with one of those photographs, a full family wedding group, on the front over* =lthough this edition bore the date of - !e ember, it "went on publi sale on the very same day as Hello!8s issue /27", to 4uote from para -22 of the 9udgment* +he balan e of the authorised photographs was published in the ne5t edition of "()!" magazine, with a lose$up of the bride and groom on the over, whi h ame out on ; !e ember* 06 (n the same day that "()!" magazine published many of the authorised photographs and "Hello!" magazine published the si5 unauthorised ones, ;. %ovember ;000, the "'un" newspaper published five of the unauthorised photographs, and the "!aily Mail" newspaper published a reprodu tion of the front over of "Hello!" magazine (i e one of the unauthorised photographs)* +he following day, the "!aily Mail" published four of the unauthorised photographs* 0/ +he 9udge, at para -2A, a epted the eviden e of "Hello!" magazine8s London editor, Ms )oumi, that "it was totally untrue that permission had been given to the "'un", or indeed to the "!aily Mail", to republish the *144 !ouglas wedding pi tures"* Fn answer to re4uests made on behalf of those two newspapers, 9ust after the in9un tion had been lifted, Ms )oumi had said that they ould reprodu e the front over of issue /27, but no other photographs in the magazine* +he editor of the "'un" had been told earlier by Ms )oumi that he might be able to use the other unauthorised photographs, but she made it lear that he ould not do so on ;2 %ovember, when, a ording to the 9udge, "it was *** not too late for the 8'un8 to have withdrawn from its print run any pi tures from the inside of 8Hello!8 whi h the 8'un8 had proposed to use"G para -2.* 00 Meanwhile, the pro eedings developed* +he laimants had initially wanted only in9un tive relief, but, in light of the dis harge of the interlo utory in9un tion, they also sought damages* Iurther defendants, in luding 'enor 'an hez Jun o, were 9oined in addition to Hello!, and this entailed a further visit to the "ourt of =ppeal* +he pleadings on ea h side were amended on a number of o asions, dis losure was given, and witness statements e5 hanged* 03 +here was then an appli ation by the laimants to debar the defendants, in luding Hello!, from defending the laim, on the grounds of their de eit (in luding the lies to the "ourt of =ppeal), their failure to give proper dis losure (whi h in luded allegations of destru tion of do uments), and the unreliability of some of their eviden e* +hat appli ation ame before 'ir =ndrew Morritt K$" :;002< - =ll >? -0A6, who, on ;6 January ;002, dismissed it, although he strongly riti ised the way in whi h Hello! and many of its employees had ondu ted the litigation* (Ft is right to add that some of those riti isms were e5pressly dis laimed by Lindsay J in paras -02 and -;6$-;A of his 9udgment, after having heard and seen fuller eviden e than was available to 'ir =ndrew Morritt K$"*) 01 Kery shortly thereafter, on 2 Iebruary ;002, the ase ame on for hearing, on liability only, before Lindsay J :;002< 2 =ll >? 77/* +he hearing lasted ;3 days, and the 9udge gave an impressive and full 9udgment on -- =pril ;002* =lthough other points were dealt with in his 9udgment, it is enough for present purposes to summarise the 9udge8s on lusions as follows* He found that the !ouglases were entitled to damages and a perpetual in9un tion against Hello!, on the grounds that the publi ation of the

unauthorised photographs in this 9urisdi tion by Hello! onstituted a brea h of onfiden e, effe tively be ause the re eption was a private event* He found that ()! were entitled to damages from Hello! on substantially similar grounds, albeit that the brea h of onfiden e was, so far as they were on erned, more in the nature of a trade se ret* He re9e ted ()!8s ase against Hello! in so far as it was based on what we shall all e onomi torts, namely deliberate interferen e with the business of ()!, or onspira y to in9ure either by lawful, or by unlawful, means* 02 +here was a subse4uent hearing on the issue of 4uantum, resulting in a further 9udgment on 6 %ovember ;002 :;002< >@H" ;/;7 ("h)* Fn that 9udgment, Lindsay J re9e ted the argument that the !ouglases were entitled to damages al ulated on the basis of a notional li en e fee, but he indi ated that, if that had been the proper basis, he would have assessed the notional fee at , -;3,000* He awarded the !ouglases damages on a different basis, namely, (a) , 2,630 ea h for the distress o asioned by the publi ation of the unauthorised photographs, (b) ,6,000 between them for the ost and in onvenien e of having to deal hurriedly with the sele tion of the *145 authorised photographs to enable them to be published in "()!" magazine no later than the publi ation of the unauthorised photographs in "Hello!" magazine, and ( ) nominal damages of , 30 ea h for brea h of the !ata Crote tion = t -77A* +he 9udge awarded ()! , -,0;/,60/, representing his assessment of their loss of profit from the e5ploitation of the authorised photographs (essentially as a result of a mu h more modest in rease in ir ulation than would otherwise have been en9oyed by the ;.-st and ;.;nd issues of "()!" magazine) attributable to the publi ation of the unauthorised photographs on ;. %ovember ;000* He also awarded ()! ,/,.30 in respe t of wasted osts*

The issues raised on this appeal 06 Iirst, Hello!

ontend that the 9udge was wrong to on lude that the !ouglases were entitled to any relief* +his ontention is premised on the proposition that, whether one puts their ase in terms of onfiden e or priva y, the !ouglases had no ause of a tion against Hello! as a result of the publi ation of the unauthorised photographs* 'e ondly, Hello! argue that the 9udge was also wrong when he de ided that ()! had a ause of a tion, based on onfiden e, as a result of the publi ation of the unauthorised photographs* 03 +hirdly, if Hello! su eed in establishing that they are not liable to ()! in onfiden e, ()! argue that, ontrary to the 9udge8s on lusion, Hello! are none the less liable to them on the basis of one or more of the e onomi torts* Ior reasons whi h will be e5plained when dealing with this part of the appeal, this argument depends on the !ouglases maintaining their 9udgment against Hello!* 04 +he fourth and fifth issues relate to damages* Hello! argue that, if they are liable to ()!, the 9udge erred, when assessing the effe t on ()!8s profits, in taBing into a ount the effe t, not merely of the publi ation of the unauthorised photographs in "Hello!" magazine, but also of the publi ation of some of these in the "'un" and the "!aily Mail"* Iinally, if Hello! are liable to the !ouglases, but not to ()!, the laimants ontend that the damages awarded to the !ouglases should be e4uivalent to the li en e fee whi h they would have negotiated with Hello! for the publi ation of the unauthorised photographs in "Hello!" magazine, and that the 9udge8s assessment of that fee at ,-;3,000 was too low*

The judgment on liability 05 +he 9udgment on liability :;002< 2 =ll >? 77/ was 70 pages in length, the first 30 of
whi h were devoted to the fa ts* +he 9udge then identified the different Binds of laim advan ed on the basis of these fa ts* Ior present purposes the following are relevant* (n

the basis that the wedding was private, the !ouglases laim for brea h of onfiden e, a duty, in that ir umstan e, owed only to them* Iurther, or alternatively, on the basis that the wedding was an event whi h was e5ploited for gain, all three laimants laim for brea h of onfiden e, their ase being that photographi representation of the events was, in effe t, a ommer ial or trade se ret* Fn the further alternative, the !ouglases laim for brea h of their right to priva y* =ll laimants laim that there was deliberate interferen e by the defendants with their trade or businesses, by unlawful means* =ll laimants *146 laim that there was a onspira y by the defendants to in9ure them by unlawful means* =ll laimants laim there was a onspira y by the defendants with the predominant purpose of in9uring them* 36 +he 9udge dealt first with the two laims based on the law of onfiden e* He onsidered the re ent development of this area of the law that has been stimulated by the Human ?ights = t -77A* He set out the prin iples that he drew from the authorities in relation to what he des ribed as "personal or individual onfiden e"* He then went on to give onsideration to what he des ribed as " ommer ial onfiden e"* He on luded that the authorities suggested that the benefit of a ommer ial onfiden e an be shared with and enfor ed by the original onfider and another or others, where the fa ts re4uire that su h others should be prote ted* 3/ Fn an important step in his reasoning the 9udge said, at para -7/G

"4 see it as appropriate to examine the applicability of the law of confidence on the basis that the claimants had here a valuable trade asset, a commodity the value of which depended, in part at least, upon its content at first being kept secret and then of its being made public in ways controlled by Miss (eta5)ones and Mr &ouglas for the benefit of them and of the third claimant. 4 6uite see that such an approach may lead to a distinction between the circumstances in which e6uity affords protection to those who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity and those whose is not but 4 am untroubled by that7 the law which protects individual confidences and a law of privacy may protect the latter class and provide no reason to diminish protection for the former. 8o far as concerns *#+, the right to exclusivity of photographic coverage of the wedding was, in contrast with the nature of the confidence as to the first and second claimants, even more plainly a right in the nature of a trade secret." 30 +he 9udge onsidered a number of defen es raised to the laims and re9e ted them*
+hese in luded the ontention that the 4uestion of whether what tooB pla e at the wedding was onfidential was governed by the law of %ew DorB and the ontention that any rights of onfidentiality were lost as a result of the publi ation of the authorised photographs by ()!* 33 +he 9udge8s on lusion in relation to onfiden e appears in para ;;6G

"4n my judgment, and first regarding the claimants/ case as one of either commercial confidence or of a hybrid kind in which, by reason of it having become a commodity, elements that would otherwise have been merely private became commercial, 4 find the 9ello+ defendants to have acted unconscionably and that, by reason of breach of confidence, they are liable to all three claimants to the extent of the detriment which was thereby caused to the claimants respectively." 31 +he des ription of the onfiden e identified by the 9udge as "hybrid" was appropriate*

+he !ouglases had laimed damages under two headsG (-) for invasion of their priva y and (;) for damage to their ommer ial interest in information about their wedding* +heir ontention was that they were ommer ially e5ploiting information about their wedding in su h a way as to preserve residual onfidentiality, or priva y, in relation to it* *147 'ele ted photographs would be made publi , dis losing that part of the private information that the !ouglases were ontent should be onveyed to the publi * %o other

images would be made available to the publi * 32 +he 9udge appears to have a epted that this was a legitimate approa h* He held, at para 3;G

"the notion of an exclusive contract as a means of reducing the risk of intrusion by unauthorised members of the media and hence of preserving the privacy of a celebrity occasion is a notion that can reasonably be believed in as a potentially workable strategy to achieve such ends ..." 36 @hen the 9udge ame to assess damages, he made an award under ea h head* He
awarded Mr !ouglas and Ms #eta$Jones ,2,630 ea h, for distress at the publi ation of the unauthorised photographs* +his an only have been on the basis that those photographs had invaded their priva y* He awarded them a further ,6,000 9ointly for the labour and e5pense of e5pediting the sele tion of photographs that were to be provided under their ontra t with ()!* +his an only have refle ted damage, or the ost of mitigating damage, to their ommer ial interest in the information about their wedding* 33 +he 9udge dealt shortly with the 4uestion of whether the !ouglases ould bring a separate laim under the law of priva y* He held that in this ase the law of onfiden e provided them with an ade4uate remedy* @ere that not the ase it would have been for Carliament, not the ourt, to fill the gap* 34 'o far as the laims for interferen e with business and onspira y to in9ure, the 9udge held that the ne essary elements in these auses of a tion were not all made out* @e shall onsider his reasoning in greater detail later in this 9udgment*

The issues in relation to confidence and privacy: the principles Introductory 35 Mr Cri
e, on behalf of Hello!, submitted that it was not possible to approa h this ase, as the 9udge had done, on the premise that the rights involved were of a hybrid Bind, being both personal and ommer ial* !ifferent prin iples applied to the two different types of right* 16 'o far as the !ouglases8 laim was on erned, the right that they invoBed was a personal right in the nature of a priva y right* Ft was a right whi h would be infringed by publi ation of photos of the wedding if, but only if, su h publi ation would be highly offensive to a reasonable person* +he right was not transferable* Fn so far as the !ouglases had su h a right it was lost on e they entered into an agreement with ()! under whi h that whi h they ould have Bept private was to be made publi * Iurthermore, any damages for infringement of this right ould only refle t the values prote ted by the legal prin iple, that is priva y values* 1/ 'o far as ()!8s laim was on erned, they laimed to have en9oyed a right of ommer ial onfiden e, transferred to them under their ontra t with the !ouglases* +he law re ognised no su h right in respe t of what went on at the wedding and no su h right ould be transferred to ()!* =lternatively, if su h a right did e5ist, it eased on publi ation by ()! of the *148 authorised photographs, whi h pla ed the information alleged to be onfidential in the publi domain* 10 Mr Cri e advan ed separate defen es based upon %ew DorB law* +he unauthorised photographs were taBen by Mr +horpe in %ew DorB* =ny duty of onfiden e on the part of Hello! ould only be based on Bnowledge that Mr +horpe owed a duty of onfiden e in relation to the photographs* Hnder the law of %ew DorB Mr +horpe owed no su h duty* Ft followed that Hello! owed no duty of onfiden e either to the !ouglases or to ()!* 13 Ft is onvenient to onsider the issues in relation to the !ouglases8 laim separately from those in relation to ()!8s laim* +he issues in relation to the !ouglases8 laim are as follows* (!isregarding the effe t of the ()! ontra t) did the law of onfiden e prote t

information about the wedding as being private informationL Ff so, did the ()! ontra t destroy that prote tionL !id the law of onfiden e prote t the !ouglases8 ommer ial interest in the information about their weddingL 11 +he issues in relation to ()!8s laim are as follows* !id the ()! ontra t have the effe t of e5tending to ()! the prote tion of the law of onfiden e in respe t of the information about the weddingL Ff so was that prote tion lost when ()! published the authorised photographsL 12 +here is one issue ommon to both laims* Fs this area of the law so un ertain that it annot be invoBed to 9ustify interferen e with Hello!8s freedom of e5pressionL 16 +hese issues fall to be onsidered in a onte5t in whi h >nglish law is rapidly developing* +he ena tment of the Human ?ights = t -77A provoBed a lively dis ussion of the impa t that it would have on the development of a law prote ting priva y* +he Movernment has made it lear that it does not intend to introdu e legislation in relation to this area of the law, but anti ipates that the 9udges will develop the law appropriately, having regard to the re4uirements of the "onvention for the Crote tion of Human ?ights and Iundamental IreedomsG see the omment of Lord Frvine of Lairg L" in the ourse of the debate on the Human ?ights Eill (Hansard, HL !ebates, ;. %ovember -776, ol 66-) and the submissions of the Hnited )ingdom in 'pen er (>arl) v Hnited )ingdom (-77A) ;3 >H?? "! -03* +he ourts have not a epted this role with whole$hearted enthusiasm* Eefore turning to onsider re ent developments in this area of the law, we propose to onsider two seminal 4uestions* (-) @hat obligation does the "onvention impose on the Hnited )ingdom in relation to the prote tion of priva yL (;) @hat obligation is pla ed on the ourts in respe t of the prote tion of priva yL

The United Kingdom's Convention obligation in respect of privacy 13 @e are not the first to a
Bnowledge the assistan e to be derived from Mavin Chillipson8s lu id arti le, "+ransforming Erea h of "onfiden eL +owards a "ommon Law ?ight of Criva y under the Human ?ights = t" (;002) // ML? 6;/* He observes, at p 6;7, that the 'trasbourg 9urispruden e provides no definite answer to the 4uestion of whether the "onvention requires states to provide a priva y remedy against private a tors* +hat is no longer the ase* Fn :on 9annover v ;ermany ,<%%$. $% =9>> 1 the >uropean "ourt of Human ?ights gave 9udgment in respe t of a series of omplaints by Crin ess "aroline of Mona o* +hey all related to press photographs of her that had been taBen in publi pla es* 'he *149 ontended that these infringed her priva y and had sought a remedy in a series of a tions in the Merman ourts, whi h had been unsu essful* 'he alleged that these de isions of the Merman ourts infringed her arti le A right to respe t for her private and family life* +he >uropean ourt agreed, at para 36G

"3he court reiterates that although the object of article 2 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the state to abstain from such interference? in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. 3hese obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ,see, mutatis mutandis, @ and A v 3he Betherlands ,1C2 . 2 =9>> <D , para ;2, 8tjerna v Einland ,1CC$. <$ =9>> 1C , para 2A and Kerliere v 'witzerland ?eports
of Judgments and !e isions ;00-$KFF, p .-2* +hat also applies to the prote tion of a person8s pi ture against abuse by others*" 14 +he >uropean ourt went on, at para 6;, to state that the relevant Merman statute should have been interpreted narrowly by the Merman ourts, "to ensure that the state omplies with its positive obligation under the "onvention to prote t private life and the right to ontrol the use of one8s own image"*

15 Ft follows that the >uropean

ourt has re ognised an obligation on member states to prote t one individual from an un9ustified invasion of private life by another individual and an obligation on the ourts of a member state to interpret legislation in a way whi h will a hieve that result*

What obligation is placed on the courts in respect of the protection of privacy 26 'ome, su
h as the late Crofessor 'ir @illiam @ade, in Wade & Forsyth, Administrative Law, Ath ed (;000), p 7A2, and Jonathan Morgan, in "Criva y, "onfiden e and Horizontal >ffe tG 8Hello8 +rouble" :;002< "LJ ..., ontend that the Human ?ights = t -77A should be given "full, dire t, horizontal effe t "* +he ourts have not been prepared to go this far* Fn Fainwright v 9ome *ffice G<%%$H < A' $%-, para 20, Lord Hoffmann observed that whether the law of onfiden e should be e5tended so as to prote t priva y was a 4uestion whi h "must wait for another day", but he went on to hold, at para 2;, that there ould be no 4uestion of the ourts adopting "some high level prin iple of priva y"* Fn 'ampbell v M;B Itd G<%%$H < A' $ 1, para --, Lord %i holls of EirBenhead observedG

"4n this country, unlike the "nited 8tates of America, there is no over5arching, all5 embracing cause of action for /invasion of privacy/ ... Jut protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions." 2/ Lord %i holls went on to des ribe the way in whi h the law of brea h of onfiden e has
been adapted to embra e one aspe t of invasion of priva y, the wrongful dis losure of private information, ommenting, at para -.G "+he essen e of the tort is better en apsulated now as misuse of private information*" = little later in his spee h he said, at paras -6 and -AG *150

"11. 3he time has come to recognise that the values enshrined in articles 2 and 1% are now part of the cause of action for breach of confidence. As Iord Foolf ') has said, the courts have been able to achieve this result by absorbing the rights protected by articles 2 and 1% into this cause of action? A v J plc G<%%DH KJ 1C , ;0;, para .* Iurther, it should
now be re ognised that for this purpose these values are of general appli ation* +he values embodied in arti les A and -0 are as mu h appli able in disputes between individuals or between an individual and a non$governmental body su h as a newspaper as they are in disputes between individuals and a publi authority*

"12. 4n reaching this conclusion it is not necessary to pursue the controversial 6uestion whether the =uropean 'onvention itself has this wider effect. Bor is it necessary to decide whether the duty imposed on courts by section - of the 9uman >ights Act 1CC2
e5tends to 4uestions of substantive law as distin t from 4uestions of pra ti e and pro edure* Ft is suffi ient to re ognise that the values underlying arti les A and -0 are not onfined to disputes between individuals and publi authorities* +his approa h has been adopted by the ourts in several re ent de isions, reported and unreported, where individuals have omplained of press intrusion*" 20 Earoness Hale of ?i hmond said that the Human ?ights = t -77A did not reate any new ause of a tion between private persons* %or ould the ourts invent a new ause of a tion to over types of a tivity not previously overed* Eut where there is a ause of a tion the ourt, as a publi authority, must a t ompatibly with both parties8 "onvention rights* 23 @e on lude that, in so far as private information is on erned, we are re4uired to adopt, as the vehi le for performing su h duty as falls on the ourts in relation to "onvention rights, the ause of a tion formerly des ribed as brea h of onfiden e* =s to the nature of that duty, it seems to us that sections <, D, - and 1< of the 9uman >ights

Act 1CC2 all point in the same dire

tion* +he ourt should, in so far as it an, develop the a tion for brea h of onfiden e in su h a manner as will give effe t to both arti le A and arti le -0 rights* Fn onsidering the nature of those rights, a ount should be taBen of the 'trasbourg 9urispruden e* Fn parti ular, when onsidering what information should be prote ted as private pursuant to arti le A, it is right to have regard to the de isions of the >uropean "ourt of Human ?ights* @e annot pretend that we find it satisfa tory to be re4uired to shoehorn within the ause of a tion of brea h of onfiden e laims for publi ation of unauthorised photographs of a private o asion*

The la! of confidence 21 @e now turn to

onsider the law of onfiden e as it has developed up to this point* @e start with Crin e =lbert v 'trange (-A.7) - Ma & M ;3* Crin e =lbert obtained an in9un tion restraining the defendant from publishing a atalogue of et hings made by himself and Jueen Ki toria* (ne ground for the grant of this e4uitable remedy was that the information in the atalogue must have been obtained by brea h of trust, onfiden e or ontra t* +he information in 4uestion was personal, not ommer ial, although the defendant intended to maBe money out of it, and Lord "ottenham L" remarBed, at p .6, that "priva y is the right invaded"* 22 *151 @e an advan e well over a entury to 'oco v A B 'lark ,=ngineers. Itd G1C-CH >L' $1, a ase in whi h Megarry J analysed three elements of brea h of onfiden e as established by the authorities up to that point in time* Iirst the information had to be "of a onfidential nature"* Fn e5plaining this phrase Megarry J first ited the statement of Lord Mreene M? in 8altman =ngineering 'o Itd v 'ampbell =ngineering 'o Itd ,1C$2. - >L' <%D, ;-3 that it must not be "something whi h is publi property and publi Bnowledge"* +his is not the learest of definitions* Ft seems to us that information will be onfidential if it is available to one person (or a group of people) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it should be ome available to others* Megarry J went on to hold :-7/7< ?C" .-, .6 G

"whether it is described as originality or novelty or ingenuity or otherwise, 4 think that there must be some product of the human brain which suffices to confer a confidential nature upon the information." Fhile this may have been an appropriate statement on the facts before him, it is plainly not of general application, as the Spycatcher litigation (see Attorney ;eneral v ;uardian Bewspapers Itd ,Bo <. G1CC%H 1 A' 1%C) demonstrates* 26 +he se ond re4uirement was that the information must have been ommuni ated by
the onfider to the onfidant in ir umstan es of onfiden e* =s to this re4uirement, Megarry J advan ed the following test :-7/7< ?C" .-, .AG

"if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the e6uitable obligation of confidence." 3he third re6uirement was that there had to be an unauthorised use of the information to the detriment of the confider. Fe would observe that the essential feature creating the duty of confidence was the circumstances in which the information was communicated from the confider to the confidant. 23 +he information that was the sub9e t matter of 'oco v A B 'lark ,=ngineers. Itd G1C-CH >L' $1 was te hni al information of value for ommer ial purposes* Ft was held
not to be of a onfidential nature as it was already in the publi domain*

24 Fn Attorney ;eneral v ;uardian Bewspapers Itd ,Bo <. G1CC%H 1 A' 1%C Lord Moff of
"hieveley observed that an obligation of onfiden e ould arise even where the information in 4uestion had not been onfided by a onfider to a onfidant* He said, at p ;A-G

"4 realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties55often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. 4t is in such cases as these that the expressions /confider/ and /confidant/ are perhaps most aptly employed. *152 Eut it is well settled

that a duty of onfiden e may arise in e4uity independently of su h ases1 and F have e5pressed the ir umstan es in whi h the duty arises in broad terms, not merely to embra e those ases where a third party re eives information from a person who is under a duty of onfiden e in respe t of it, Bnowing that it has been dis losed by that person to him in brea h of his duty of onfiden e, but also to in lude ertain situations, beloved of law tea hers$$where an obviously onfidential do ument is wafted by an ele tri fan out of a window into a rowded street, or where an obviously onfidential do ument, su h as a private diary, is dropped in a publi pla e, and is then pi Bed up by a passer$by*" 25 Lord Moff went on to say that he had deliberately avoided the fundamental 4uestion whether, ontra t apart, the duty lay simply "in the notion of an obligation of ons ien e arising from the ir umstan es in or through whi h the information was ommuni ated or obtained"* @e would observe that the referen e to an obviously confidential document might be said to have begged the 4uestion of what made the do ument onfidential* @e would also observe that in Lord Moff8s e5amples the nature of the information, together possibly with the form in whi h it was re orded, oupled with the ir umstan es in whi h it ame to the noti e of the person fi5ed with the duty of onfiden e, were su h as to lead a reasonable person to on lude that the information in 4uestion was private* 66 Lord Moff also deliberately avoided the 4uestion of whether onfidential information might be regarded as property, a 4uestion of parti ular importan e in the onte5t of the appeal before us* 6/ +he potential that Lord Moff8s analysis had for prote ting private information that was not re orded in a do ument was not immediately appre iated* Fn #aye v >obertson G1CC1H E8> -< 9ournalists had gained unauthorised a ess to the hospital bedside of a elebrity re overing from a brain in9ury and taBen photographs of his appearan e to whi h he was in no ondition to onsent* +he "ourt of =ppeal held that the law provided no prote tion for the photographi information so obtained* Ft was not even argued that the law of onfiden e ould provide a remedy* 60 +he signifi an e of Lord Moff8s approa h was, however, appre iated by Laws J who, in 9ellewell v 'hief 'onstable of &erbyshire G1CC H 1 FI> 2%$, A06, made the following obiter observationG

"4f someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subse6uent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. 4n such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. 4t is, of course, elementary that, in all such cases, a defence based on the public interest would be available." 63 +he first detailed analysis of the impa t of the Human ?ights = t -77A on the
prote tion of priva y afforded by >nglish law and, in parti ular, the law of onfiden e, was that arried out by the "ourt of =ppeal :;00-< JE 7/6 when dis harging the interlo utory in9un tion whi h had been *153 granted in this ase* ErooBe LJ on luded, on the fa ts

as they then appeared, that the unauthorised photographs had been taBen by someone at the wedding, that is on a private o asion, who was under a duty of onfiden e, so that they onstituted " onfidential information" under established prin iples* He went on to onsider the possibility that the photographs had been taBen by an intruder with whom no relationship of trust or onfiden e had been established, remarBing, at para 37, that in that eventuality the ourt would have to e5plore the law relating to priva y when it was "not bolstered by onsiderations of onfiden e"* 61 ErooBe LJ went on to onsider authorities involving invasion of priva y in >ngland, in the "ommonwealth and at 'trasbourg, and on luded that it was a diffi ult 4uestion whether the Human ?ights = t -77A re4uired the >nglish ourts to develop a law of priva y, but one that he was not obliged to solve* 62 'edley LJ posed the same 4uestion, but gave it a more affirmative answer* He on luded, at para --0G "we have rea hed a point at whi h it an be said with onfiden e that the law re ognises and will appropriately prote t a right of personal priva y*" He went on to on lude, at para -;3, that there was a powerfully arguable ase on the e5isting authorities that the !ouglases had a right of priva y that >nglish law would re ognise and, where appropriate, prote t* Iurthermore, at para -26, section 1< of the 9uman >ights Act 1CC2 e5pressly re4uired the ourt to have regard to arti le -0 of the "onvention and this, ne essarily, brought "into the frame" arti le A* 66 )eene LJ onsidered that developments in the law of brea h of onfiden e gave the laimants at least an arguable laim* He remarBed, at para -//G

"3he nature of the subject matter or the circumstances of the defendant/s activities may suffice in some instances to give rise to liability for breach of confidence. 3hat approach must now be informed by the jurisprudence of the 'onvention in respect of article 2. Fhether the resulting liability is described as being for breach of confidence or for breach of a right to privacy may be little more that deciding what label is to be attached to the cause of action, but there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned." 63 +he ourt dis harged the in9un tion on the basis that the ()! ontra t had
substantially weaBened the !ouglases8 laim to relief based on invasion of priva y and that damages or an a ount of profits was liBely to provide an ade4uate remedy should brea h of duty be established at the trial* 64 Cerhaps the most dramati use of the law of onfiden e to prote t priva y o urred within weeBs of the interlo utory de ision in this ase* Fn :enables v Bews ;roup Bewspapers Itd G<%%1H Eam $D% !ame >lizabeth Eutler$'loss C granted in9un tions against the whole world restraining the dis losure of any information that might lead to the identifi ation of the murderers of James Eulger after their release from prison* !ame >lizabeth Eutler$'loss C held that, taBing into a ount the "onvention, the law of onfiden e ould e5tend to over the in9un tions sought* !is losure of *154 the information in 4uestion might lead to grave, and possibly fatal, onse4uen es for the laimants* +his fa tor not merely rendered the information onfidential, but outweighed the freedom of e5pression that would otherwise have underpinned the right of the press to publish the information* 65 = remarBable feature of this de ision was that the nature of the information alone gave rise to the duty of onfiden e regardless of the ir umstan es in whi h the information might ome to the Bnowledge of a person who might wish to publish it* 36 Fn A v J plc G<%%DH KJ 1C , the "ourt of =ppeal had to onsider an appli ation to set aside an interim in9un tion preventing the first defendant newspaper from publishing details of the laimant8s se5ual relationships with the se ond defendant and a woman to whom he was not married* +he in9un tion had been granted on the ground that the

information was onfidential and sub9e t to the prote tion of arti le A of the "onvention and there was no publi interest in publi ation that enabled the defendant8s rights of freedom of e5pression to prevail* 3/ Fn introdu ing the 9udgment of the ourt, Lord @oolf "J said, at para .G

"3he application for interim injunctions have now to be considered in the context of articles 2 and 1% of the =uropean 'onvention for the Lrotection of 9uman >ights and Eundamental Ereedoms. 3hese articles have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. 3he court/s approach to the issues which the application raise has been modified because, under section - of the 1CC2 Act, the court, as a public authority, is re6uired not to act /in a way which is incompatible with a 'onvention right/. 3he court is able to achieve this by absorbing the rights which articles 2 and 1% protect into the long5established action for breach of confidence. 3his involves giving a new strength and breadth to the action so that it accommodates the re6uirements of those articles." 30 Lord @oolf "J then laid down guidelines whi h a ourt should follow when onsidering
a similar appli ation* +hese in lude the proposition that in the great ma9ority of, if not all, situations where the prote tion of priva y is 9ustified in relation to events after the Human ?ights = t -77A ame into for e, an a tion for brea h of onfiden e will provide the ne essary prote tion* =s to interests apable of being sub9e t to a laim for priva y, these will usually be obvious* = duty of onfiden e will arise whenever the party sub9e t to the duty is in a situation where he Bnows or ought to Bnow that the other person an reasonably e5pe t his priva y to be prote ted* Ff there is an intrusion in a situation where a person an reasonably e5pe t his priva y to be respe ted then that intrusion will be apable of giving rise to an a tion for brea h of onfiden e unless the intrusion an be 9ustified* 33 Lord @oolf "J went on to deal with the ir umstan es where a person an and annot reasonably e5pe t details of his se5ual a tivities to be treated as onfidential* +his was a matter that later fell for onsideration by (useley J in +heaBston v MM% Ltd :;00;< >ML? 27A and, in the nature of *155 things, is liBely to all for onsideration not infre4uently in the future* Having regard to the fa ts of the present ase this is not an area that we need e5plore* @e would simply observe that to date the >nglish ourts appear to have taBen a less generous view of the prote tion that the individual an reasonably e5pe t in respe t of his or her se5ual a tivities than has the 'trasbourg ourt* 31 +he most re ent and authoritative onsideration that has been given to this area of the law is to be found in the spee hes of the House of Lords in 'ampbell v M;B Itd G<%%$H < A' $ 1* %aomi "ampbell brought pro eedings for brea h of onfiden e in respe t of an arti le in the "Mirror" newspaper whi h dis losed that she was a drug addi t, and was attending meetings of %ar oti s =nonymous* !etails were given as to the fre4uen y of these meetings and the arti le was illustrated by photographs of her on the doorstep of a building where su h a meeting had 9ust taBen pla e* +he photographs had been taBen overtly from a ar by a freelan e photographer who had been employed by the newspaper for this purpose* 32 Miss "ampbell did not omplain of the publi ation of the fa t that she was a drug addi t* 'he a epted that, be ause she had gone on re ord as saying that she did not taBe drugs, the press served a legitimate publi interest in putting the re ord straight* 'he omplained, however, that the information about her attendan e at %ar oti s =nonymous was private information that the "Mirror" had dis losed in brea h of onfiden e* =s to the photographs, Miss "ampbell e5pressly did not omplain that it was a brea h of onfiden e to publish these on the ground that they had been taBen overtly* Her omplaint was that the information depi ted by the photographs formed part of the

private information whi h the "Mirror" had no 9ustifi ation for publishing* 36 Miss "ampbell su eeded at first instan e* 'he lost in the "ourt of =ppeal :;002< JE /22 on the ground that the information that she alleged was private was information that it was legitimate for the "Mirror" to publish, being peripheral to the entral story that she was a drug addi t and published in order to portray her in a favourable light* +he House of Lords :;00.< ; =" .36, by a ma9ority of 2 to ;, tooB a different view* +he details of Miss "ampbell8s treatment with %ar oti s =nonymous, together with the photographs, onstituted private information the publi ation of whi h amounted to what used to be alled a brea h of onfiden e* @hile the House divided on the appli ation of the law to the fa ts, there was no signifi ant disagreement as to the relevant prin iples of law* 33 @e have already referred to Lord %i holls of EirBenhead8s statement that the essen e of the tort was better en apsulated as a misuse of private information* +hat statement was pre eded by the following passage, at para -.G

"Bow the law imposes a /duty of confidence/ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. =ven this formulation is awkward. 3he continuing use of the phrase /duty of confidence/ and the description of the information as /confidential/ is not altogether comfortable. 4nformation about an individual/s private life would not, in ordinary usage, be called /confidential/. 3he more natural description today is that such information is private." 34 *156 Later Lord %i holls ommented, at para ;-G ">ssentially the tou hstone of

private life is whether in respe t of the dis losed fa ts the person in 4uestion had a reasonable e5pe tation of priva y*" He drew attention to the distin tion between identifying whether information is private and identifying whether it is proportionate to prevent dis losure of su h information, having regard to the ompeting "onvention right of freedom of e5pression* He suggested that the test of whether dis losure would be "highly offensive to a reasonable person", advan ed by Mleeson "J when onsidering the test of what is private in =ustralian Eroad asting "orpn v Lenah Mame Meats Cty Ltd (;00-) ;0A "L? -77, para .;, was more relevant to the latter issue* 35 Lord Hoffmann identified two developments of the law of onfiden e* +he first was the re ognition of the artifi iality of distinguishing between onfidential information obtained through a violation of a onfidential relationship and similar information obtained in some other way* +he se ond was the a eptan e, under human rights instruments su h as arti le A of the "onvention, of the priva y of personal information as something worthy of prote tion in its own right* =s to the latter there was no logi al ground for affording a person less prote tion against a private individual than against the state* Fn the result :;00.< ; =" .36, para 3-G

"4nstead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity55 the right to control the dissemination of information about one/s private life and the right to the esteem and respect of other people." 46 Lord Hope of "raighead, at para A3, approved Lord @oolf "J8s statement in A v J plc G<%%DH KJ 1C that a duty of onfiden e will arise whenever the party sub9e t to the duty
is in a situation where he Bnows or ought to Bnow that the other person an reasonably e5pe t his priva y to be prote ted* He onsidered that Mleeson "J8s test was useful where there was room for doubt, but, at para 7/G

"4f the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. 8o there is normally no need to go on and ask whether it would be highly offensive for it to be published." 4/ Earoness Hale of ?i hmond held :;00.< ; =" .36, para -2., that the ause of a tion
of brea h of onfiden e had within its s ope what has been termed "the prote tion of the individual8s informational autonomy"* @here the person publishing the information Bnows or ought to Bnow that there is a reasonable e5pe tation that the information in 4uestion

will be Bept onfidential, the threshold is rea hed where the ourt will have to balan e the laimant8s interest in Beeping the information private against the ountervailing interest of the re ipient in publishing itG para -26* Lord "arswell observed, at para -//, that it was not ne essary to apply Mleeson "J8s test* Ft was suffi iently established by the nature of the material that it was private information whi h attra ted the duty of observing the onfiden e in whi h it was imparted to the respondents* 40 'ome of the omments that we have ited underline the validity of Lord %i holls8s observation that the use of the phrase "duty of onfiden e " *157 and the des ription of private information as " onfidential" are not altogether omfortable* @hat the House was agreed upon was that the Bnowledge, a tual or imputed, that information is private will normally impose on anyone publishing that information the duty to 9ustify what, in the absen e of 9ustifi ation, will be a wrongful invasion of priva y* +he House was also agreed that, when arti le A and arti le -0 are both engaged, one does not start with the balan e tilted in favour of arti le -0*

"#rivate information" 43 Megarry J in 'oco v A B 'lark ,=ngineers. Itd G1C-CH >L' $1 identified two
re4uirements for the reation of a duty of onfiden e* +he first was that the information should be onfidential in nature and the se ond was that it should have been imparted in ir umstan es importing a duty of onfiden e* =s we have seen, it is now re ognised that the se ond re4uirement is not ne essary if it is plain that the information is onfidential, and for the ad9e tive " onfidential" one an substitute the word "private"* @hat is the nature of "private information"L Ft seems to us that it must in lude information that is personal to the person who possesses it and that he does not intend shall be imparted to the general publi * +he nature of the information, or the form in whi h it is Bept, may suffi e to maBe it plain that the information satisfies these riteria*

#hotographic information 41 +his a

tion is about photographs* 'pe ial onsiderations atta h to photographs in the field of priva y* +hey are not merely a method of onveying information that is an alternative to verbal des ription* +hey enable the person viewing the photograph to a t as a spe tator, in some ir umstan es voyeur would be the more appropriate noun, of whatever it is that the photograph depi ts* =s a means of invading priva y, a photograph is parti ularly intrusive* +his is 4uite apart from the fa t that the amera, and the telephoto lens, an give a ess to the viewer of the photograph to s enes where those photographed ould reasonably e5pe t that their appearan es or a tions would not be brought to the noti e of the publi * 42 +he intrusive nature of photography is refle ted by the various media odes of pra ti e* Ft is also re ognised by the authorities* Fn +heaBston v MM% Ltd :;00;< >ML? 27A (useley J refused an in9un tion restraining publi ation of a verbal depi tion of the laimant8s a tivities in a brothel* He granted, however, an in9un tion restraining the publi ation of photographs taBen of these a tivities* He held, at para 6AG

"3he authorities cited to me showed that the courts have consistently recognised that photographs can be particularly intrusive and have showed a high degree of willingness to prevent the publication of photographs, taken without the consent of the person photographed but which the photographer or someone else sought to exploit and publish. 3his protection extended to photographs, taken without their consent, of people who exploited the commercial value of their own image in similar photographs, and to photographs taken with the consent of people but who had not consented to that particular form of commercial exploitation, as well as to photographs taken in public or from a

public place of what could be seen if not with a naked eye, then at least with the *158 aid
of powerful bino ulars* F on luded that this part of the in9un tion involved no parti ular e5tension of the law of onfidentiality and that the publi ation of su h photographs would be parti ularly intrusive into the laimant8s own individual personality* F onsidered that even though the fa t that the laimant went to the brothel and the details as to what he did there were not to be restrained from publi ation, the publi ation of photographs taBen there without his onsent ould still onstitute an intrusion into his private and personal life and would do so in a pe uliarly humiliating and damaging way* Ft did not seem to be remotely inherent in going to a brothel that what was done inside would be photographed, let alone that any photographs would be published*" 46 Fn & v I G<%%$H =MI> 1, para ;2, @aller LJ remarBedG

"A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photographer provides or even if the information revealed by the photograph is in the public domain. 4t 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." 43 Fn :on 9annover v ;ermany $% =9>> 1, para 37, the >uropean "ourt of Human
?ights remarBedG

"Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. 3he present case does not concern the dissemination of /ideas/, but of images containing very personal or even intimate /information/ about an individual. Eurthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution." 44 Fn 'ampbell v M;B Itd G<%%$H < A' $ 1, although %aomi "ampbell made no
omplaint that the publi ation of her photographs itself onstituted a brea h of onfiden e, both Lord Hope and Earoness Hale pla ed parti ular weight on the intrusive nature of photographs* Lord Hope said, at para -;2G

"Miss 'ampbell could not have complained if the photographs had been taken to show the scene in the street by a passer5by and later published simply as street scenes. Jut these were not just pictures of a street scene where she happened to be when the photographs were taken. 3hey were taken deliberately, in secret and with a view to their publication in conjunction with the article. 3he !oom lens was directed at the doorway of the place where the meeting had been taking place. 3he faces of others in the doorway were pixelated so as not to reveal their identity. 9ers was not, the photographs were published and her privacy was invaded." 45 Lord Hope had earlier held appli able the reasoning of the 'upreme "ourt of "anada

in =ubry v Nditions Ki e$Kersa Fn :-77A< - '"? 37-* +he *159 ourt had held that publi ation in a magazine of an unauthorised photograph of a -6$year$old girl sitting on the steps of a publi building had violated her right to respe t for private life onferred under arti le 3 of the Juebe "harter of Human ?ights and Ireedoms* 56 Earoness Hale was not prepared to go this far* 'he said that by themselves the photographs would not have been ob9e tionable, ontrasting the law of >ngland with that applied in the Ki e$Kersa ase* 'he held the photographs ob9e tionable be ause :;00.< ; =" .36, para -33G

"A picture is /worth a thousand words/ because it adds to the impact of what the words convey7 but it also adds to the information given in those words. 4f nothing else, it tells the reader what everyone looked like7 in this case it also told the reader what the place looked like."

5/ @ith this summary of >nglish law, we turn to the issues raised by the fa
ase*

ts of this

The $ouglases' claim $isregarding the %K& contract' did the la! of confidence protect information about the !edding as private information 50 @e should maBe
lear at the outset that the only issue on liability was whether the photographs published by Hello! infringed rights of onfiden e or priva y en9oyed by the !ouglases* =s the 9udge re orded, Hello! did not seeB to argue that it was in the publi interest that they should publish the unauthorised photographs or that their arti le -0 rights of freedom of e5pression outweighed any rights of onfiden e or priva y that the !ouglases en9oyed* 53 +he 9udge found, at para //G

"3o the extent that privacy consists of the inclusion only of the invited and the exclusion of all others, the wedding was as private as was possible consistent with it being a socially pleasant event." 9e further found that Mr 3horpe took the unauthorised photographs surreptitiously in circumstances where he was well aware that his presence at the wedding was forbidden. Einally the judge found that those responsible for purchasing the unauthorised photographs on behalf of 9ello+ were aware that the taking of the photographs would have involved at least a trespass or some deceit or misrepresentation on the photographer/s part. 51 Had the wedding taBen pla e
in >ngland, and putting on one side the effe t of the ()! ontra t, only an affirmative answer ould be given to the 4uestion of whether those a ting for Hello! Bnew that the information depi ted by the unauthorised photographs was fairly and reasonably to be regarded as onfidential or private* 52 =pplying the test propounded by the House of Lords in 'ampbell v M;B Itd G<%%$H < A' $ 1, photographs of the wedding plainly portrayed aspe ts of the !ouglases8 private life and fell within the prote tion of the law of onfidentiality, as e5tended to over private or personal information* !oes it maBe any differen e that the wedding tooB pla e in %ew DorBL

*160 The effect of the law of New

or!

56 Ft was not suggested that section C,1. of the Lrivate 4nternational Iaw ,Miscellaneous Lrovisions. Act 1CC is appli able to this ase, but we have none the less onsidered that
4uestion* +hat se tion governs the hoi e of law for determining issues relating to tort* +he !ouglases8 laim in relation to invasion of their priva y might seem most appropriately to fall within the ambit of the law of deli t* @e have on luded, however, albeit not without hesitation, that the effe t of shoehorning this type of laim into the ause of a tion of brea h of onfiden e means that it does not fall to be treated as a tort under >nglish lawG see )ite hnology EK v Hni or MmbH Clastmas hinen :-773< I'? 673, para .0 and more generally "lerB & Lindsell on +orts, -Ath ed (;000), para ;6$0-, footnotes ; and 2* %or has anyone suggested that the fa ts of this ase give rise to a ause of a tion in tort under the law of %ew DorB (see below)* = ordingly we have on luded that the parties were orre t to have no regard to section C,1. of the -773 = t* 53 !i ey & Morris on the "onfli t of Laws, -2th ed (;000), vol ;, at paras 2.$0;7ff,

suggest, somewhat tentatively, that a laim for brea h of onfiden e falls to be ategorised as a restitutionary laim for un9ust enri hment and that the proper law is the law of the ountry where the enri hment o urred* @hile we find this reasoning persuasive, it does not solve the problem on the fa ts of this ase* >ven if the !ouglases8 laim for invasion of their priva y falls to be determined a ording to prin iples of >nglish law, these may themselves re4uire onsideration of the law of %ew DorB* +hat indeed is the ase advan ed on behalf of Hello! 54 +he 9udge held that the ons ien e of Hello! was tainted, so far as the use of the unauthorised photographs were on erned, by a number of matters* +hey Bnew of the se urity pre autions taBen by the !ouglases to prevent unauthorised photography* +hey Bnew of ()!8s e5 lusive ontra t* +hey Bnew that the unauthorised photographs must have been taBen surreptitiously and have involved at least a trespass by the photographer* Fn these ir umstan es, he brushed aside arguments advan ed by Hello! based on the law of %ew DorB in half of a single paragraph, at para ;--G

"3hen these defendants say there was no wrong done by the law of the place, Bew Aork, but, firstly, 4 cannot see how Mr 3horpe can fail to be regarded as other than having been at least a trespasser by the law of Bew Aork and it has certainly not been demonstrated to me that he was not. 8econdly, so long as the conscience of the publishers of 9ello+ is tainted, as 4 have held it to be, 4 fail to see how 3horpe/s innocence of any breach of local law, even had that been proved to me, should assist them." 55 +he 9udge8s finding that Mr +horpe must at least have been a trespasser under the law

of %ew DorB was not hallenged* Hello!8s argument, as advan ed before us, was as follows* +he information in the unauthorised photographs an only have attra ted the prote tion of the law of onfiden e (-) as a onse4uen e of the sub9e t matter of the photographs or (;) as a result of the ir umstan es in whi h they were taBen* 'o far as the sub9e t matter was on erned, this ould only attra t prote tion if it was, itself, of a nature that would be highly offensive to a reasonable person of ordinary sensibilities* +hat was not this ase* Ft followed that to establish that the information was prote ted, the !ouglases had to rely upon the *161 ir umstan es in whi h the information was published* =s to these, the relevant ir umstan es were events in %ew DorB, and the impli ation of those events had to be onsidered a ording to the law of %ew DorB* Hnder the law of %ew DorB there would have been no inhibition upon Mr +horpe publishing the photographs whi h he had taBen* Hello!, having derived the photographs from Mr +horpe, ould be no worse off* =lthough the 9udge made no e5press finding on the point, we understand that it was ommon ground that, had the unauthorised photographs been published by Mr +horpe in %ew DorB, or sold by Mr +horpe to Hello! and published by Hello! in %ew DorB, no a tionable wrong would have been ommitted* /66 @e do not onsider that the law of %ew DorB has any dire t appli ation on the fa ts of this ase* +he ause of a tion is based on the publi ation in this 9urisdi tion and the omplaint is that private information was onveyed to readers in this 9urisdi tion* +he test of whether the information was private so as to attra t the prote tion of >nglish law must be governed by >nglish law* +hat test, as established by 'ampbell v M;B Itd G<%%$H < A' $ 1, is whether Hello! Bnew or ought to have Bnown that the !ouglases had a reasonable e5pe tation that the information would remain private* @here the events to whi h the information relates taBe pla e outside >ngland$$in this instan e in %ew DorB$$ the law of the pla e where they taBe pla e may none the less be relevant to the 4uestion of whether there is a reasonable e5pe tation that the events will remain private* /6/ Ff, in the present ase, the law of %ew DorB had provided that any member of the publi had a right to be present at a wedding taBing pla e in a hotel and to taBe and publish photographs of that wedding, then photographs of the wedding would be unliBely to have satisfied the test of priva y* +hat was not the ase, however* +he law of %ew DorB learly entitled the !ouglases to arrange for their wedding to taBe pla e in ir umstan es designed to ensure that events at the wedding remained private, at least

so far as photographi detail was on erned* +he fa t that photographs taBen in violation of that priva y might have been published with impunity in %ew DorB has no dire t bearing on whether the information fell to be treated as private and onfidential in >ngland* +he 4uestion of whether, if unauthorised photographs of the wedding had a tually been published in %ew DorB, priva y and onfidentiality in >ngland would have been destroyed is a different 4uestion, and one relevant to the ne5t 4uestion that we have to address* /60 +o summarise our on lusion at this stageG disregarding the effe t of the ()! ontra t, we are satisfied that the !ouglases8 laim for invasion of their priva y falls to be determined a ording to the >nglish law of onfiden e* +hat law, as e5tended to over private and personal information, prote ted information about the !ouglases8 wedding*

The effect of the %K& contract /63 Hello!8s argument, as advan

ed by Mr Cri e, is that, on e the !ouglases had ommitted themselves by the ()! ontra t to putting before the publi photographs of their wedding, it was no longer possible for them to advan e a laim that events at their wedding were private or onfidential* +hereafter, publi ation of other photographs of that event ould not possibly infringe arti le A of the "onvention or give rise to a laim for brea h of onfiden e* /61 "#$% @e have seen that the first element of brea h of onfiden e identified by Megarry J in 'oco v A B 'lark ,=ngineers. Itd G1C-CH >L' $1 was that the information had to be "of a onfidential nature", as opposed to being publi property and publi Bnowledge* +he Spycatcher litigation on erned republi ation in >nglish newspapers of e5tra ts from a booB, published without legal restraint in =ustralia and elsewhere, whi h had been written by a former member of the Eritish se ret servi e in brea h of ontra t and onfiden e appli able under >nglish law* Fn that litigation, whi h ulminated in the de ision of the House of Lords in Attorney ;eneral v ;uardian Bewspapers Itd ,Bo <. G1CC%H 1 A' 1%C, it was held, after mu h dis ussion, that the prote tion of the law of onfiden e had been lost as a result of the information oming into the publi domain* "are must be e5er ised in applying that de ision generally, for there is a spe ial prin iple of law whi h pre ludes the state from asserting brea h of onfiden e where it annot be shown that this is in the publi interest* /62 Fn general, however, on e information is in the publi domain, it will no longer be onfidential or entitled to the prote tion of the law of onfiden e, though this may not always be trueG see Milbert v 'tar %ewspaper "o Ltd (-A7.) -- +L? . and 'reation >ecords Itd v Bews ;roup Bewspapers Itd G1CC1H =MI> $$$, .3/* +he same may generally be true of private information of a personal nature* (n e intimate personal information about a elebrity8s private life has been widely published it may serve no useful purpose to prohibit further publi ation* +he same will not ne essarily be true of photographs* Fn so far as a photograph does more than onvey information and intrudes on priva y by enabling the viewer to fo us on intimate personal detail, there will be a fresh intrusion of priva y when ea h additional viewer sees the photograph and even when one who has seen a previous publi ation of the photograph is onfronted by a fresh publi ation of it* +o taBe an e5ample, if a film star were photographed, with the aid of a telephoto lens, lying naBed by her private swimming pool, we 4uestion whether widespread publi ation of the photograph by a popular newspaper would provide a defen e to a legal hallenge to repeated publi ation on the ground that the information was in the publi domain* +here is thus a further important potential distin tion between the law relating to private information and that relating to other types of onfidential information* /66 %or is it right to treat a photograph simply as a means of onveying fa tual information* = photograph an ertainly apture every detail of a momentary event in a

way whi h words annot, but a photograph an do more than that* = personal photograph an portray, not ne essarily a urately, the personality and the mood of the sub9e t of the photograph* Ft is 4uite wrong to suppose that a person who authorises publi ation of sele ted personal photographs taBen on a private o asion, will not reasonably feel distress at the publi ation of unauthorised photographs taBen on the same o asion* /63 +here is a further point* +he ob9e tion to the publi ation of unauthorised photographs taBen on a private o asion is not simply that the images that they dis lose onvey se ret information, or impressions that are unflattering* Ft is that they dis lose information that is private* +he offen e is aused be ause what the laimant ould reasonably e5pe t would remain private has been made publi * +he intrusion into the private domain is, "#$& of itself, ob9e tionable* +o the e5tent that an individual authorises photographs taBen on a private o asion to be made publi , the potential for distress at the publi ation of other, unauthorised, photographs, taBen on the same o asion, will be redu ed* +his will be very relevant when onsidering the amount of any damages* +he agreement that authorised photographs an be published will not, however, provide a defen e to a laim, brought under the law of onfiden e, for the publi ation of unauthorised photographs* Ft follows that we do not a ept Mr Cri e8s submission that the effe t of the ()! ontra t pre luded the !ouglases8 right to ontend that their wedding was a private o asion and, as su h, prote ted by the law of onfiden e* /64 +his on lusion endorses that rea hed by 'edley LJ, who held at the interlo utory stage :;00-< JE 7/6, para -.0, that the !ouglases

"were careful by their contract to retain a right of veto over publication of *#+/s photographs in order to maintain the kind of image which is professionally and no doubt also personally important to them. 3his element of privacy remained theirs and 9ello+/s photographs violated it." /65 )eene LJ was less positive about this point* He on luded that it was arguable that a
limited degree of priva y remained vested in the !ouglases so that they ould validly omplain of the loss of ontrol over the photographs to be published, leading to damage to their image be ause of unflattering photographs* @e agree that the !ouglases were entitled to omplain about the unauthorised photographs as infringing their priva y on the ground that these detra ted from the favourable pi ture presented by the authorised photographs and aused onse4uent distress* //6 +he 9udge awarded ,2,630 to ea h of the !ouglases in respe t of the distress aused by the unauthorised photographs, a very modest sum in the onte5t of this litigation* %o hallenge is made to the amount of damages awarded and so we see no ground for interfering with this head of damage*

$id the la! of confidence protect the $ouglases' commercial interest in information about their !edding /// +he other head of damages awarded to the !ouglases related to the labour and
e5pense of editing the sele tion of photographs that were to be provided under the ontra t with ()!* +his head of damage ould only be 9ustified in so far as it represented ompensation for interferen e with the !ouglases8 ommer ial e5ploitation of their wedding* @e agree with Mr Cri e that this head of laim had nothing to do with interferen e with private life* Ft was based on an assertion that the !ouglases had a ommer ial interest in maBing publi information about their wedding, whi h they were entitled to prote t* +he 9udge a epted that the information of what tooB pla e at the wedding was similar to a trade se ret whi h the !ouglases were entitled to e5ploit and to Beep onfidential until e5ploited* Hello! ontend that no su h right is Bnown to >nglish law* @hether the law re ognises su h a right is of importan e not merely in relation to the ,6,000 damages awarded to the !ouglases for interferen e with their right, but

be ause ()!8s mu h greater award of damages was premised on a finding that this right was shared with them* //0 "#$' +he 9udge held :;002< 2 =ll >? 77/, para -7/, that the law of onfiden e prote ts "those who seeB to manage their publi ity as part of their trade or profession and whose private life is a valuable ommodity"* Ff this statement is orre t the law treats information about a elebrity8s private life as a trade se ret and grants an in9un tion against publi ation of su h information, or damages in respe t of it, not be ause of the distress whi h the invasion of priva y auses but be ause of the ommer ial damage aused by infringing the elebrity8s monopoly right to maBe su h information publi * +wo 4uestions arise* @as the 9udge orre t to re ognise that >nglish law affords prote tion to private information on this basisL Ff so, is the prote tion afforded in respe t of events whi h taBe pla e in another 9urisdi tionL //3 ?e ognition of the right of a elebrity to maBe money out of publi ising private information about himself, in luding his photographs on a private o asion, breaBs new ground* Ft has e hoes of the droit O l8image refle ted in arti le 7 of the Iren h "ode "ivil and the Merman ause of a tion that Crofessor MarBesinis des ribes as the "tort of publi ity laim"G see MarBesinis, (8"inneide, IedtBe & Hunter$Henin, ""on erns and Fdeas =bout the !eveloping >nglish Law of Criva y (=nd How )nowledge of Ioreign Law Might Ee of Help)" (;00.) 3; =meri an Journal of "omparative Law -22, -6/* !espite the omment of Joshua ?ozenberg in Criva y and the Cress (;00.), p ;;A, we do not see this as any reason to draw ba B* @e an see no reason in prin iple why e4uity should not prote t the opportunity to profit from onfidential information about oneself in the same ir umstan es that it prote ts the opportunity to profit from onfidential information in the nature of a trade se ret* Ft is helpful at this point to onsider how far >nglish law has gone in this dire tion* //1 +here is ogent authority that supports the proposition that e4uity will prote t trade se rets that have been divulged in brea h of a onfidential relationship* 'ee for e5ample 8altman =ngineering 'o Itd v 'ampbell =ngineering 'o Itd ,1C$2. - >L' <%D and Mustad M 8on v &osen ,Bote. G1C-$H 1 FI> 1%C* +he 4uestion raised by this appeal is the e5tent to whi h similar prote tion will be afforded to other types of valuable information whi h is a 4uired, not by brea h of a onfidential relationship, but by some form of unauthorised intrusion into a situation of priva y* //2 Fn Crin e =lbert v 'trange - Ma & M ;3 Lord "ottenham L" relied both on Crin e =lbert8s property in the et hings and in the fa t that they were private when holding that he was entitled to prevent the publi ation of information about them in the form of a atalogue* Had Crin e =lbert himself been intending to publish su h information for profit, we doubt if Lord "ottenham L" would have been any the less in lined to afford him a remedy* //6 Fn Milbert v 'tar %ewspaper "o Ltd -- +L? ., @ ' Milbert obtained an in9un tion restraining publi ation of onfidential information about the plot of his new omi opera, asserting that su h publi ation was al ulated to ause him e onomi in9ury* Fn 8helley Eilms Itd v >ex Eeatures Itd G1CC$H =MI> 1D$ the High "ourt granted an interlo utory in9un tion restraining publi ation of photographs onveying information about details of a forth oming film, whi h those maBing it had taBen reasonable steps to Beep se ret for obvious ommer ial reasons* Fn granting the in9un tion on the grounds, among others, of an arguable ase in onfiden e, Mr Martin *165 Mann J", sitting as a deputy High "ourt 9udge, a urately observed, at p -./G

"whether or not e6uity imposes an obligation to keep information confidential depends upon a great many factors often uni6ue to the case in which it is said to do so. 9owever, most cases will have certain common constituents, namely, the existence of a body of information which a plaintiff wishes to keep confidential for the protection of some lawful interest of his, a defendant coming into possession of such information in circumstances in which he actually knows ,or is fixed by operation of law with

knowledge of. or ought as a reasonable person to know the plaintiff intends to be kept confidential, a detriment actual or potential to the plaintiff from publication, the non5 availability of such information to the public and the absence of any public interest in disclosure." //3 'reation >ecords Itd v Bews ;roup Bewspapers Itd G1CC1H =MI> $$$ was
another interlo utory de ision in whi h the issue was whether the fa ts dis losed an arguable brea h of onfiden e* +hose fa ts were that a pop group had posed at a spe ially devised s ene, onsisting of a white ?olls ?oy e in the swimming pool of a hotel and in orporating various other props* +he ob9e t of the e5er ise was to taBe a photograph to be used as a re ord over* +he defendants ommissioned a freelan e photographer to taBe photographs of the s ene* Lloyd J granted an in9un tion restraining the publi ation of these photographs on the ground that it was well arguable that the nature of the operation together with the imposition of se urity measures made the o asion one of onfidentiality, at any rate as regards photography* //4 +hese de isions are of no more than persuasive authority and some of them have not been without riti s* @e onsider, however, that they refle t the following prin iples* @here an individual ("the owner") has at his disposal information whi h he has reated or whi h is private or personal and to whi h he an properly deny a ess to third parties, and he reasonably intends to profit ommer ially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has Bnowingly obtained the information without authority, will be in brea h of duty if he uses or publishes the information to the detriment of the owner* @e have used the term "the owner" loosely* //5 @e have on luded that onfidential or private information, whi h is apable of ommer ial e5ploitation but whi h is only prote ted by the law of onfiden e, does not fall to be treated as property that an be owned and transferred* @e shall e5plain our reasons for this on lusion when we deal with ()!8s laim* /06 Ft remains to onsider whether, in so far as the !ouglases8 laim is in respe t of damage to their ommer ial interest in the information about their wedding, the law of %ew DorB has any greater relevan e than it has in relation to their laim for invasion of their priva y* @e have on luded that it does not* +he !ouglases8 laim is for damage done to their ommer ial interests in this ountry by publi ation of the unauthorised photographs in this ountry* (ur reasoning in relation to the laim for invasion of priva y applies e4ually in respe t of this head of laim* +he !ouglases had taBen steps, permitted under the law of %ew DorB, whi h were intended to ensure that their wedding was a private o asion and that no unauthorised *166 photographs were taBen or published* Hello! Bnew this* Hello! also Bnew that the !ouglases e5pe ted ommer ially to e5ploit their private wedding by the publi ation of authorised photographs* Hello! deliberately obtained photographs that they Bnew were unauthorised and published them to the detriment of the !ouglases* +his renders them liable for brea h of onfiden e under >nglish law* /0/ Ior these reasons the appeal against the 9udgment in favour of the !ouglases is dismissed*

%K&'s claim in confidence $id the %K& contract e(tend to %K& the protection of the la! of confidence in respect of the information about the !edding /00 Lindsay J re orded :;002< 2 =ll >? 77/, para -A6G "3he 9ello+ defendants accept, of course, that trade secrets can be sold and it is common enough in commercial confidence cases for the benefit of the confidentiality to be shared

with others. 3he confidentiality of a trade secret, for example, may be shared between, and be enforceable by, the inventor and the manufacturer to whom he had granted licence for the secret to be turned to account." /03 +he 9udge ited in support of these propositions Milbert v 'tar %ewspaper "o Ltd -+L? . and Mustad M 8on v &osen ,Bote. G1C-$H 1 FI> 1%C* He ontinued, referring to
the latter de ision, at para -A6G

"3he report is not entirely clear as it sometimes speaks of &osen having ac6uired information whilst in /their service/, i e that of Mustad, yet speaks also of what &osen had learned in the service of his /former master/, a reference to 3horing M 'o. 3he better view, as it seems to me, is that &osen was never in Mustad/s employ and never ac6uired the relevant knowledge whilst in Mustad/s employ. *n that footing the case shows that the benefit of a confidence can pass, in that case by purchase from the li6uidator of 3horing, and, if that is so, then it is hard to see why it should not be shared between and be enforceable by co5owners or by a successor in title, at any rate where the defendant knew or could be taken to have known of the co5ownership or sharing before acting in breach and where all entitled to the confidence assert it." /01 Mr Cri e hallenged this part of the 9udge8s reasoning* He drew an analogy between

the wedding and a dramati performan e, in whi h the !ouglases were the performers* He submitted that the rights of the performers in respe t of unauthorised photographi or sound reprodu tion of their live performan es were a orded limited statutory prote tion under Cart FF of the "opyright, !esigns and Catents = t -7AA* Hnder the -7AA = t these performers8 rights were "non$property rights" and ould not be assigned or transmitted to third partiesG see se tion -7;= (as inserted by the "opyright and ?elated ?ights ?egulations -77/ ('F -77/P;7/6)* Ft would be very strange if, by e5pressly prohibiting filming, re ording or photography, performers ould pla e themselves in a position to reate rights to prohibit reprodu tions of their live performan es, assignable to and enfor eable by third parties* Ft would be e4ually strange if those taBing part in a wedding were in su h a position* /02 "#$( @e observe that under se tions -A3 and -A/ of the -7AA = t a person to whom a performer has granted the e5 lusive right to photograph his performan e re eives a right whi h he can enfor e against third parties* Ft seems to us that the nature of the ontra tual rights onferred on ()! by the !ouglases re4uires areful analysis before any analogies are drawn with the position of performers* /06 +he starting point is to onsider the nature of the rights en9oyed by the !ouglases* =s we have already indi ated, their interest in the private information about events at the wedding did not amount to a right of intelle tual property* +heir right to prote tion of that interest does not arise be ause they have some form of proprietary interest in it* Ff that were the nature of the right, it would be one that ould be e5er ised against a third party regardless of whether he ought to have been aware that the information was private or onfidential* Fn fa t the right depends upon the effe t on the third party8s ons ien e of the third party8s Bnowledge of the nature of the information and the ir umstan es in whi h it was obtained* /03 Lord Hp9ohn a urately summarised the position in Lhipps v Joardman G1C-1H < A' $-, -;6$-;AG

"3he true test is to determine in what circumstances the information has been ac6uired. 4f it has been ac6uired in such circumstances that it would be a breach of confidence to disclose it to another then courts of e6uity will restrain the recipient from communicating it to another. 4n such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references? knowledge of secret processes, /know5how/, confidential information as to the

prospects of a company or of someone/s intention or the expected results of some horse race based on stable or other confidential information. Jut in the end the real truth is that it is not property in any normal sense but e6uity will restrain its transmission to another if in breach of some confidential relationship." /04 +he 9udge treated the information about the wedding rather as if it were property
when he referred, at para -A6, to its benefit being "shared between and *** enfor eable by o$owners or by a su essor in title"* @e shall onsider the two de isions upon whi h the 9udge relied as showing that the benefit of onfidential information ould be transferred* /05 Fn Milbert v 'tar %ewspaper "o Ltd -- +L? . the laim for an in9un tion restraining dis losure of the plot of Mr Milbert8s libretto was initially brought by Mr Milbert alone* +he basis of the laim was that the plot must have been dis losed to the 'tar in brea h of onfiden e and of an implied ontra tual term by an a tor or employee at the theatre* +he 9udge re4uired the manager of the theatre to be 9oined as a plaintiff on the ground that the ontra ts of employment were with him, rather than with Mr Milbert* +his de ision supports the proposition that, where the benefit of onfidential information is shared between = and E, E an laim that dis losure of that information will onstitute a brea h of a duty of onfiden e owed to E* However, the signifi an e of the ase is ompli ated by the fa t that the e5isten e of a ontra t imposing a duty of onfidentiality between E and the supplier of the information to the "'tar" was onsidered "#$) by the 9udge to be of riti al importan e* Iurther, it was a first instan e ase merely on erned with the grant of an interlo utory in9un tion* /36 +he fa ts of Mustad M 8on v &osen ,Bote. G1C-$H 1 FI> 1%C were omple5, but an for present purposes be simplified* Mr !osen worBed for a ompany + under a ontra t of employment that in luded an undertaBing to Beep onfidential information a 4uired at worB* + went into li4uidation and Mustad bought +8s business, in luding the benefit of trade se rets and pledges of se re y* !osen then went to worB for =ll o B* Mustad obtained an in9un tion restraining !osen from ommuni ating to =ll o B information a 4uired when worBing for +* +his de ision supports the proposition that a pur haser of onfidential information an restrain dis losure of that information in brea h of onfiden e, but again the pi ture is ompli ated by the fa t that the benefit of !osen8s ontra tual obligation not to dis lose the information was pur hased by Mustad* /3/ +he fa ts of the present ase are very different from those of the two ases relied upon by Lindsay J* +he material provisions of the ()! ontra t, whi h we have set out in detail at paras 3$7 above, had the following effe t* +he !ouglases would pro ure the taBing of olour photographs of the wedding wherever and whenever they hose ("the offi ial photographs")G lause /* +he !ouglases would pro ure that they be ame 9oint owners of all opyright and any other rights in the offi ial photographsG lause 6* +he !ouglases would provide ()! with approved, and where ne essary retou hed, photographs, sele ted from the offi ial photographs ("the approved photographs")G lause 6* +he !ouglases would transfer to ()! the e5 lusive rights to publish the approved photographs or to authorise others to do so, world wide, for a period of nine monthsG lause ;* +he !ouglases would transfer to ()! the e5 lusive right for a period of nine months to onsent to use their names, voi es, signatures, photographs or liBenesses in onne tion with the wedding for advertising purposesG lauses . and 3* +he !ouglases would use their best efforts to ensure that neither the media nor anyone else should taBe wedding photographsG lauses / and -/* +he !ouglases would not, for a period of nine months, authorise publi ation of any other of the offi ial photographs without prior approval from ()!G lause -;* Ff any third party not li ensed by ()! should use one of the !ouglases8 name, voi e, signature, photograph or liBeness in onne tion with the wedding, ()! would, at the written re4uest the !ouglases, where possible, pursue all ne essary legal a tion to ause su h third party to ease su h infringementG lause -2* /30 Ft an thus be seen that the ()! ontra t did not purport to transfer to or share with ()! the right to use, or even Bnow of, any photographi information about the wedding

other than the approved photographs released to ()! by the !ouglases for publi ation pursuant to lause 6, the opyright of whi h was vested in the !ouglases* ()! were given an e5 lusive li en e to publish, and to authorise others to publish, these photographs for a period of nine months* /33 +he !ouglases retained to themselves those of the offi ial photographs whi h they did not hoose to have published* +hey undertooB not to authorise the publi ation of these* +hey also undertooB to use their best endeavours to see that no other photographs of the wedding were taBen* /31 +he grant to ()! of the right to use the approved photographs was no more than a li en e, albeit an e5 lusive li en e, to e5ploit ommer ially "#$* those photographs for a nine$month period* +his li en e did not arry with it any right to laim, through assignment or otherwise, the benefit of any other onfidential information vested in the !ouglases* Fn Allen M 9anburys Itd v ;enerics ,"#. Itd G1C2-H >L' <%D, ;./ Lord !iplo B said that a li en e "passes no proprietary interest in anything, it only maBes an a tion lawful that would otherwise have been unlawful"* /32 =s Ja ob J pointed out in 4saac *ren v >ed Jox 3oy Eactory Itd G1CCCH E8> 12 , para ;A, some statutes e5pressly give an e5 lusive li ensee of intelle tual property the right to sue an infringer* +he "opyright, !esigns and Catents = t -7AA is an e5ampleG see paras -;. and -;3 above* Fn the absen e of su h a statutory provision a mere e5 lusive li en e to use authorised photographs of an event does not arry with it the right to sue a third party for infringement of a right vested in the li ensor to ob9e t to the publishing of other photographs of that event* /36 @e have re ognised that the !ouglases retained a residual right of priva y, or onfidentiality, in those details of their wedding whi h were not portrayed by those of the offi ial photographs whi h they released* Ft was in the interests of ()! that the !ouglases should prote t that right, so that ()! would be in a position to publish, or to authorise the publi ation of, the only photographs that the publi would be able to see of the wedding* (n analysis, ()!8s omplaint is not that Hello! published images whi h they had been given the e5 lusive right to publish, but that Hello! published other images, whi h no one with Bnowledge of their onfidentiality had any right to publish* +he laimants themselves argued that "the unauthorised photographs were taBen at different moments to the authorised ones, showed different and informal in idents at the re eption, and were naturally mu h less posed"* +hese photographs invaded the area of priva y whi h the !ouglases had hosen to retain* Ft was the !ouglases, not ()!, who had the right to prote t this area of priva y or onfidentiality* "lause -0 of the ()! ontra t e5pressly provided that any rights not e5pressly granted to ()! were retained by the !ouglases* +he laim su essfully advan ed by the !ouglases in this litigation is at odds with ()!8s laim* /33 Ior these reasons we on lude that the 9udge was wrong to hold that ()! was in a position to invoBe against Hello! any right to ommer ial onfiden e in relation to the details of the wedding or the photographi images portraying these*

The effect of the publication of the photographs in %K& maga)ine /34 Ff we are wrong in our
on lusions that ()! had no right of ommer ial onfiden e in the information portrayed by Hello!8s photographs, this an only be on the basis that the photographs published by Hello! fell within a generi lass of ommer ially onfidential information to whi h ()! were party and whi h ()! were entitled to prote t* (n that premise we propose to onsider the effe t of the fa t that, as a result of ()! advan ing the publi ation date of the first edition of "()!" magazine to arry photographs of the wedding, these photographs were published on the same day as the unauthorised photographs were published in "Hello!" magazine* Mr Cri e argued that the publi ation of the photographs in "()!" magazine brought the onfidential information that they portrayed into the publi domain, so that this was no longer apable of giving rise to a

duty of onfiden e* /35 *170 Mr !esmond Erowne advan ed more than one answer to Mr Cri e8s argument* He relied upon the fa t that the unauthorised photographs were "4uite different in nature to the authorised ones", whi h simply underlined his diffi ulty in showing that his lients, ()!, had any rights in respe t of the sub9e t matter of the unauthorised photographs* More pertinently he 4uestioned the appli ation to photographs of the proposition that information loses the prote tion of the law of onfiden e on e it is in the publi domain* His most ogent submission was that, when Hello! published the unauthorised photographs, the photographs in "()!" magazine were not truly in the publi domain* +hey were not widely available to the publi * ()! ould properly have e5pe ted to be able to ontrol when to publish the authorised photographs and they ould not lose the prote tion of the law of onfidentiality until they were so widely available to the publi that they no longer retained any ommer ial value apable of e5ploitation* /16 @e have already 4uestioned the appli ation of the "publi domain" test to photographs in the onte5t of invasion of priva y* @here the laimant8s interest is a ommer ial interest in the e5ploitation of information by the publi ation of photographs, the legal effe t of prior publi ation of similar information is parti ularly diffi ult to analyse* @e do not, however, onsider that the fa ts of this ase raise a problem* Ff, ontrary to the on lusion we have rea hed, ()! were entitled to en9oy the e5 lusive benefit of publishing photographs of the wedding until their photographs had been put into the publi domain, we are in no doubt that Hello! 9umped the gun in publishing the unauthorised photographs when they did* +his was also the view of the 9udge* Hello! did not wait until ()!8s photographs were in the publi domain before publishing their own* +hey tooB steps whi h, but for the rea tion of ()!, would have resulted in their publishing their photographs first in brea h of ()!8s rights* Fn an attempt to mitigate the damage that this would do, ()! rushed forward the publi ation of their own photographs, but did no more than a hieve appro5imately simultaneous publi ation with Hello!* @e agree with the 9udge that ()!8s a tion had not, by the time of Hello!8s publi ation, had the effe t of destroying su h rights of onfidentiality as ()! had*

*egal certainty /1/ +his point remains alive in relation to that part of the 9udgment that awarded
damages to the !ouglases whi h we have upheld* /10 Mr Cri e8s arguments in relation to legal ertainty were as follows* +he laimants8 laims involved a restri tion on Hello!8s freedom of e5pression* =rti le -0(;) of the "onvention re4uired that any su h restri tion should be "pres ribed by law"* @hen Hello! tooB the de ision to publish the unauthorised photographs the relevant law was so un ertain that it was not possible to predi t that publi ation would be held to be unlawful* +he four ases from whi h the 9udge hiefly drew his e5position of the modern law in relation to personal onfiden e all post dated publi ation of the relevant issue of "Hello!" magazine* Ft followed that there was, at that time, no relevant restri tion on publi ation "pres ribed by law"* Fn these ir umstan es, for the ourt to hold that by publishing the unauthorised photographs Hello! ommitted a brea h of duty owed to the laimants would be in onfli t with arti le -0* /13 "#(# Fn support of this submission Mr Cri e relied upon well established prin iples of 'trasbourg 9urispruden e, founded on this passage of the 9udgment of the >uropean "ourt of Human ?ights in 'unday +imes v Hnited )ingdom (-767) ; >H?? ;.3, para .7G

"4n the court/s opinion, the following are two of the re6uirements that flow from the expression /prescribed by law/. Eirst, the law must be ade6uately accessible? the citi!en must be able to have an indication that is ade6uate in the circumstances of the legal rules applicable to a given case. 8econdly, a norm cannot be regarded as a /law/ unless it is formulated with sufficient precision to enable the citi!en to regulate his conduct? he must

be able55if need be with appropriate advice55to foresee, to a degree that is reasonable in the circumstances, the conse6uences which a given action may entail. 3hose conse6uences need not be foreseeable with absolute certainty? experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law mush be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are 6uestions of practice." /11 Lindsay J dealt with this argument in a single senten e, at para ;-;G "F am not
ons ious of having e5tended but merely of having applied the law*" +hat is not an answer to the point if the law whi h he applied had only been established by de isions whi h predated his 9udgment but postdated the publi ation of the relevant edition of "Hello!" magazine* /12 Mr Erowne submitted that the 'trasbourg 9urispruden e did not pre lude developments of >nglish ommon law that were reasonably foreseeable* He relied, in parti ular, on observations of the >uropean ourt in 8F v "nited #ingdom ,1CC . <1 =9>> D-D* +hat ase involved two appli ants, ea h of whom had been onvi ted of raping his wife* +heirs had been the first ases in whi h the >nglish ourts had re ognised that there was no general immunity available to a husband against a harge of raping his wife* +hey ontended that their onvi tions involved a retroa tive hange in the law whi h violated arti le 6(-) of the "onvention* /16 +he ourt held, at para 2/P2.G

"9owever clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. 3here will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. 4ndeed, in the "nited #ingdom, as in the other 'onvention states, the progressive development of the criminal law through judicial lawmaking is a well5entrenched and necessary part of legal tradition. Article 1 of the 'onvention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen." 3he court went on to conclude, at para $D0$1, that the decision of the 9ouse of Iords withdrawing the husband/s immunity was no more than continuing "a perceptible line of case law development" which had "reached a stage *172 where 9udi ial re ognition of the
absen e of immunity had be ome a reasonably foreseeable development of the law"* /13 Had the laimants8 appli ation for an interlo utory 9udgment in this ase su eeded, it would have been possible for Hello! to have prevented the publi ation of the edition ontaining the unauthorised photographs* @hen the in9un tion was refused, they de ided to pro eed with the publi ation* =t that moment, it is not lear whether the "ourt of =ppeal gave any indi ation as to their reasons for refusing the in9un tion* @e do not believe, however, that the ourt8s rea tion to the arguments advan ed on behalf of the laimants an have left Hello! onfident that the laimants would not establish a valid laim in law* =pplying the reasoning of the >uropean ourt in 8F v "nited #ingdom, we on lude that it was reasonably foreseeable to Hello!, when they de ided to pro eed with the publi ation, that this developing area of >nglish law might result in their being held to have infringed the !ouglases8 rights of priva y or onfiden e* /14 +here is a further point* +his ase involves a onfli t between the arti le A right of respe t for private and family life and the arti le -0 right of freedom of e5pression* +he "onvention only permits restri tions of either right where "pres ribed by law"* Fn 'pen er (>arl) v Hnited )ingdom ;3 >H?? "! -03 the appli ants omplained that Hnited )ingdom law had failed to prote t the arti le A rights of "ountess 'pen er after a newspaper had

published a photograph of her, taBen with a telephoto lens, in the grounds of a lini * +he "ommission ruled the appli ation inadmissible on the ground that the ourts, through the ommon law system in the Hnited )ingdom, should be permitted to develop e5isting rights in respe t of brea h of onfiden e by way of interpretation so as to over the brea h of priva y that had taBen pla e* /15 Fn Ce B v Hnited )ingdom (;002) 2/ >H?? 6-7 the appli ant omplained, among other things, of the la B of a domesti remedy against infringement of his right to respe t for private life in relation to fa ts that o urred before the Human ?ights = t -77A ame into effe t* He had been photographed in a publi pla e by losed ir uit television with a Bnife in his hands after attempting to ommit sui ide and the film had been released to the media and widely published* +he Movernment argued that the fa ts involved an area of the law whi h had been, and would ontinue to be developed by the ourts and that the 'trasbourg 9urispruden e, whi h had had an important impa t on these developments, would have an even more important impa t with the oming into effe t of the Human ?ights = t -77A* +he >uropean ourt was not persuaded* Ft found that it was unliBely that the domesti ourts would have afforded the appli ant a remedy at the relevant time had an a tion been brought for brea h of onfiden e* /26 Ff one postulates that, at the time of the publi ation by Hello! of the unauthorised photographs, >nglish law was insuffi iently lear to satisfy the re4uirements of providing prote tion to priva y in a manner "pres ribed by law ", the ourt was on the horns of a dilemma* Ff it gave a de ision whi h developed the law so as to provide a prote tion to respe t for priva y "pres ribed by law", it risBed infringing Hello!8s arti le -0 rights* Ff, however, it ruled that the law was insuffi iently lear to provide a remedy, it perpetuated the infringement of the !ouglases8 arti le A rights* Ft seems to us that in this situation the proper ourse was for the ourt to attempt to bring >nglish law into omplian e with the "onvention, even if this was at Q-62 the ost of a restri tion, in the instant ase, of Hello!8s arti le -0 rights by findings whi h, up to that moment, ould not be said to have been "pres ribed by law"* /2/ Ior all these reasons, we dismiss Hello!8s atta B on the 9udgment below on the ground that it imposed a restri tion on Hello!8s right to freedom of e5pression that was not pres ribed by law of suffi ient ertainty*

%K&'s claim based on economic torts: unla!ful interference !ith business Introduction /20 Having held that ()! were entitled to damages from Hello! for brea
h of onfiden e, it was not stri tly ne essary for the 9udge to de ide whether there was any other tortious basis of liability* However, in the light of the on lusion set out above that ()! are not entitled to damages for brea h of onfiden e, it be omes ne essary to onsider whether there is any other basis of liability* Eefore the 9udge ()! put their ase in a number of ways, although it is only ne essary for us to refer to three, whi h the 9udge identified in para -A0(vi), (viii) and (i5) of his 9udgment* +hey were (so far as relevant) unlawful interferen e with the business of ()!, onspira y to in9ure ()! by unlawful means and onspira y to in9ure ()! with the predominant purpose of doing so* /23 +here are two types of onspira y to in9ure, namely onspira y to in9ure by lawful means and onspira y to in9ure by unlawful means* Fn #uwait *il 3anker 'o 8A# v Al Jader G<%%%H < All => 'omm <11, para -0A, this ourt defined them as followsG

"A conspiracy to injure by lawful means is actionable where the claimant proves that he has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him, where the predominant purpose of the defendant is to injure the claimant. A conspiracy to injure by

unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so." /21 Fn formulating those prin iples, the ourt had parti ular regard, at para -07, to Ionrho Itd v 8hell Letroleum 'o Itd ,Bo <. :-7A;< =" -62 and Ionrho plc v Eayed G1CC<H 1 A' $$2* +he distin tion between the two types of onspira y was put thus by Lord Eridge of Harwi h in Ionrho plc v Eayed G1CC<H 1 A' $$2, ./3$.//G "Fhere conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. Jut when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests7 it is sufficient to make their action tortious that the means used were unlawful." /22 Q-6. Ft is no longer alleged that the predominant purpose of Hello! was at any stage
to in9ure ()!* +hat is s ar ely surprising in the light of the 9udge8s on lusion of fa t that Hello!8s purpose was to prote t its own interests (see below)* =s to their ase that Hello! are liable for damages for onspira y to in9ure them by unlawful means, ()! a ept that the allegation of onspira y adds nothing to their ase that Hello! are liable for a tort whi h the editors of +ler! & Lindsell on Torts, -Ath ed, des ribe in para ;.$AA as "unlawful interferen e with e onomi and other interests" and whi h we will all "unlawful interferen e" for short* +he argument before us has pro eeded on the premise that the test of intention is the same in the two torts and we have on luded that this ommon ground is orre t* /26 @e propose therefore to fo us primarily on the ingredients of the tort of unlawful interferen e and their appli ation to the fa ts of this ase* Fn "lerB & Lindsell on +orts, at para ;.$AA, the editors sayG "+here e5ists a tort of un ertain ambit whi h onsists in one person using unlawful means with the ob9e t and effe t of ausing damage to another*" Ft is not in dispute that the tort of unlawful interferen e e5ists but the parties are not agreed as to its pre ise ingredients* Fn parti ular they do not agree as to the nature of the "unlawful means" re4uired or as to the re4uirement of "ob,ect and effe t" in this onte5t* Fn this latter regard there is an issue as to whether it is ne essary to show that the defendant a ted with the ob9e t or purpose of in9uring the laimant andPor that the defendant8s a ts were in some sense aimed or dire ted at the laimant* Ft is, however, ommon ground (-) that some mens rea or intention to in,ure is re4uired and (;) that it is not ne essary to show that the predominant purpose or intention of the defendant was to in9ure the laimant* /23 Eefore fo using on those 4uestions it is onvenient to set out the ase for ()! as it has been put in this appeal, in the light of our on lusions on priva y and onfidentiality and of the findings of fa t made by the 9udge as to the state of Hello!8s Bnowledge* ()!8s ase is that in all the ir umstan es the 9udge should have held that the tort of unlawful interferen e with ()!8s business was made out on the basis that the publi ation of the unauthorised photographs was an unlawful a t, that, in publishing them, Hello! intended to in9ure ()! and that ()! suffered loss and damage as a result* /24 +he 9udge a epted that the publi ation was indeed an unlawful a t and that it amounted to unlawful means* He said, in para ;.7, that, if he had found the intent to in9ure made out, he would have held the intent to be to in9ure by the unlawful means of publishing the unauthorised photographs in brea h of obligations of onfiden e owed to all the laimants and by way of ontravention of the !ata Crote tion = t -77A* Ft is not ne essary for us to onsider the !ata Crote tion = t -77A for, in the light of our

on lusions as to priva y and onfiden e, the part of para ;.7 prin ipally relied upon by ()! is the 9udge8s on lusion that the publi ation was in brea h of obligations of onfiden e owed to the !ouglases* Mr Erowne submits that the publi ation of the unauthorised photographs in brea h of the !ouglases8 rights of priva y amounts to a suffi ient unlawful a t or unlawful means for the purposes of the tort of unlawful interferen e* @e will return to this point below in the light of submissions made by Mr Cri e on behalf of Hello! but will first onsider ()!8s ase on intention*

N11

Intention: OK!'s case

/25 +here are a number of

ontenders for the test of the state of mind that amounts to an "intention to in9ure" in the onte5t of the tort that we have des ribed as "unlawful interferen e"* +hese in lude the followingG (a) an intention to ause e onomi harm to the laimant as an end in itself1 (b) an intention to ause e onomi harm to the laimant be ause it is a ne essary means of a hieving some ulterior motive1 ( ) Bnowledge that the ourse of ondu t undertaBen will have the inevitable onse4uen e of ausing the laimant e onomi harm1 (d) Bnowledge that the ourse of ondu t will probably ause the laimant e onomi harm1 (e) Bnowledge that the ourse of ondu t undertaBen may ause the laimant e onomi harm oupled with re Bless indifferen e as to whether it does or not* = ourse of ondu t undertaBen with an intention that satisfies test (a) or (b) an be said to be "aimed", "dire ted", or "targeted " at the laimant* "ausing the laimant e onomi harm will be a spe ifi ob9e t of the ondu t in 4uestion* = ourse of ondu t whi h only satisfies test ( ) annot of itself be said to be so aimed, dire ted or targeted, be ause the e onomi harm, although inevitable, will be no more than an in idental onse4uen e, at least from the defendant8s perspe tive* %one the less, the fa t that the e onomi harm is inevitable (or even probable) may well be eviden e to support a ontention that test (b), or even test (a), is satisfied* /66 @hatever test is adopted, it is not suffi ient for the laimant to show that it was reasonably foreseeable that the laimant would or might suffer damage as a result of his a t* =s mu h of the dis ussion in 3hree >ivers &istrict 'ouncil v ;overnor and 'ompany of the Jank of =ngland ,Bo D. G<%%DH < A' 1 shows, albeit in the onte5t of the tort of misfeasan e in publi offi e, there is an important on eptual and fa tual differen e between a tort, liBe negligen e or brea h of duty, whi h re4uires merely that the loss or damage should be reasonably foreseeable and a tort, whi h re4uires a tual Bnowledge (or sub9e tive re Blessness) as to the onse4uen es* /6/ ()!8s ase, as advan ed by Mr Erowne, an be summarised as follows* +he 9udge should have found that Hello! had the deliberate ob9e t of ausing e onomi harm to ()! (i e that test (a) or (b) was satisfied) and that this amounted in law to the ne essary intention to in9ure* =lternativelyG the 9udge found, or should have found, that Hello! Bnew that their ondu t would inevitably, or alternatively probably, ause e onomi harm to ()! (i e that test ( ) or (d) was satisfied) and that this amounted in law to the ne essary intention to in9ure* =lternativelyG the 9udge found, or should have found, that Hello! Bnew that their ondu t might ause ()! e onomi harm, a ted with re Bless indifferen e as to whether they did or not (i e that test (e) was satisfied) and that this amounted in law to the ne essary intention to in9ure* /60 Fn support of these submissions Mr Erowne relies upon the 9udge8s findings as to Hello!8s state of mind and we propose to set these out before turning to the e5press findings that the 9udge made in respe t of Hello!8s intention*

Intention: the judge's findings /63 +he state of mind of Hello! depends largely, if not entirely, upon the state of mind of
'enor 'an hez Jun o, who is also the third defendant* He is *176 a dire tor and

ontrolling shareholder of the se ond defendant, Hola '=, whi h publishes "Hello!" magazine in the Hnited )ingdom* +he 9udge made these findings as to the state of Bnowledge of 'enor 'an hez Jun o, in paras 67$A-G

"1C. As he set about arranging the unauthorised photographs into a layout for an issue of /9ello+/, 8enor 8anche! )unco well knew that *#+ had obtained an exclusive contract for coverage of the &ouglas wedding. 9e knew of >amey/s reputation and the kind of work that >amey handled and the intrusive systems which papara!!i such as >amey employed. 4t was a kind of journalism he and 9ello+ did not like, he said, and usually tried to avoid. At least a part of the reasons for 8enor 8anche! )unco/s insistence that >amey should not be commissioned in advance, was in my judgment, that he, as a cautious man, was uncomfortable in being seen, as a commission would involve, to be procuring the sort of unpredictable and possibly unlawful activity that a papara!!o of >amey/s reputation might get up to. Fhilst he would not have known of the specific language used, 8enor 8anche! )unco knew that a feature of *#+/s /exclusive/ would have been that security arrangements were re6uired by contract so far as was reasonable to ensure that only those invited or duly employed would be present at the wedding and that no photographs were to be taken other than the authorised ones. Eor example, 9ello+/s own pleaded exclusive contract for coverage of the wedding of ;loria 9unniford re6uired reasonable security to be enforced. 8uch arrangements had to be contemplated by those in the trade as an inevitable concomitant of an /exclusive/, certainly where as much as O1m was at stake. "2%. 4t was obvious to him that the photographs were unauthorised. 9e said in cross5 examination that he had no doubt but that the person who did the photographs was trying to hide himself. 9e was then asked? /Mr 3ugendhat. &id you ask Mr >amey any 6uestions about how the photographs were takenP Witness* %o* Mr +ugendhat* Fs that

be ause you did not are whether they were taBen legally or illegallyL Witness* %o, it was be ause F didn8t want any information* F didn8t want to Bnow anything about it* F wasn8t urious about it* F didn8t want to Bnow*8 'imilarly, to Mr LuBe, o$ordinating editor in Madrid, it was a matter of indifferen e how the photographs had been obtained* 'enor 'an hez Jun o Bnew from his onta ts with Mr Eurry that the !ouglases had been insisting on ontrol over what photographs would be released and his own proposals to Mr Eurry of May ;000 had a ordingly offered the !ouglases full pi ture approval rights*

"21. 4n my judgment 8enor 8anche! )unco knew and ought to have known, as he selected the unauthorised photographs for publication, that what he was doing would or might significantly diminish the benefits which *#+ would otherwise derive from its exclusive contract with the &ouglases, that it would deny the &ouglases the picture approval which he knew they wanted and which he would have expected them to have procured in their contract with *#+ and that the taking of the unauthorised photographs, which he had been careful not to commission, would have involved at least a trespass or some deceit or misrepresentation on the photographer/s part in order for the *177 photographer to
over ome the se urity arrangements whi h, in outline, he Bnew or must be taBen to have Bnown to have been in pla e at a wedding whi h he had no reason to thinB was other than private* Ft was obvious, agreed 'ue %eal, Hello!8s pi ture editor at the time, that the photographs had been taBen by someone 8who had no business to be there8* Mrs "artwright8s eviden e was that they had to have been taBen surreptitiously*" (>mphasis added*) /61 'et against the 9udge8s findings of Bnowledge must be his e5press findings as to the intention of 'enor 'an hez Jun o and thus of Hello!* +he 9udge set out 'enor 'an hez Jun o8s eviden e in some detail between paras ;.3 and ;.A of his 9udgment* Miven the importan e of the eviden e to this part of the ase, espe ially to the submissions made by Mr Cri e, we set out paras ;.3$ ;.A hereG

"<$ . As for the relevant intent of the 9ello+ defendants, in practical terms it is either to be found in 8enor 8anche! )unco or it does not exist. As to his intent, his written evidence said? /4 want to state categorically that there was never an intention to cause damage to any of the claimants55to the first two claimants because we have always treated them in 9ello+ with deference and sympathy, in accordance with the maga!ine style. 4n our -%5year history we have never tried to damage anyone. 3herefore, we would not want to do it to people whom we have always treated fairly and objectively in our reports portraying them in the best possible light. Fith respect to *#+ we took it for granted that, without a doubt, they would have a great editorial success, as they had a great exclusive and conse6uently, the maga!ine would be sold under excellent conditions as was the case. *ur main purpose was to inform our readers about an event which had been publicised all over the media for weeks before the wedding, which shows that this wedding was of interest for the "nited #ingdom. Fe did not wish to disappoint our readers. 4t was never our aim or intention to damage the third claimant, our prime motivation was only to give our readers information on the wedding of two celebrities, about whom, without doubt, our readers expected to read in /9ello+/. *ther consideration was to defend the interests of our maga!ine and keep our place in the market. 3here was little or no monetary incentive in publishing these photographs because the increase in sales was not likely to compensate the costs incurred in purchasing the photographs, changing the edition and airlifting a proportion of the copies from 8pain into the "nited #ingdom. 9owever, this is something that every publisher must be prepared to do from time to time and it is a matter of professional pride and an investment in the goodwill of the publication/s readership./ "<$-. 4n his oral evidence 8enor 8anche! )unco disavowed having acted in revenge against the &ouglases for his not getting the exclusive he so wished7 rather he wanted, despite losing the exclusive, to publish an edition that would interest his readers, the event being one which had captured the imagination of the public. 9is act, he said, was not of revenge but of salvage. 9e denied having the intention of spoiling *#+/s sales adding? /my motive was never to spoil the exclusive of *#+. 4 repeat, 4 wanted to defend as far as 4 could my publication .../ Mr 3ugendhat put this to him? /Fhat 4 am suggesting to you is that in all of this you were *178 driven by your anger and you were intending
to do as mu h damage as you ould both to the !ouglases and to the publishers of "()!"*8 'enor 'an hez Jun o* 8%o* My priority was to save my publi ation after having, in the light of a very important big loss, and that is that of the e5 lusive, and F didn8t thinB of the possible damage that F ould infli t on Hello! :si < or the !ouglases be ause the photographs, F never thought that these photographs ould be onsidered to be damaging for the !ouglases and that is be ause photographs published in that way were unliBely to damage the authorised e5 lusive*8

"<$1. 3hen, referring to an argument which 4 hold to be not unreasonable, namely that poor photographs in one of the rival maga!ines could in fact increase the sales of the other which covered the event in a better way, he added, of such a case? /4n some cases it encourages it. 4t has happened to me many times and 4/ve never considered it to be that it was a damage which55certainly not a serious one. 3his supposed damage which 4 was supposed to have wanted to inflict on *#+ wasn/t even, in my opinion, clear damage. Maybe it could even help out its exclusive. 4n any event, 4 sold a few more, and 4 believe that *#+ sold its exclusive very well./ Ms #oumi, too, gave evidence that poor photographs of an event in one of the rival maga!ines could increase the sales of the rival that has better ones ,though 4 am not to be taken to be holding that was in fact the case

here.. "<$2. Mr Iuke, in close contact with 8enor 8anche! )unco in Madrid was asked the 6uestion? /9ow common, to your recollection, are spoilers by 9ello+ of *#+ exclusivesP/ Mr Iuke? /4t is a bit of a misnomer. 4 would not call it a spoiler because in the case of ... 4f we go back to the (eta5)ones wedding, it was the event of the year. 4t is like one had to cover the outbreak of war because55or would not cover it because 'hurchill had given his exclusive interview to the "=xpress". Fe had to cover it in some way. 4 think "spoiler" is a bit of a misnomer. 4t is something we have to cover, and if photographs become available you publish them. 3his is not an attack on your competition, this is because our readers want to know about these events so you go ahead and publish them. 4f those photographs are made available by an orang utan with a Lolaroid, well you publish them./ " /62 +hat was the 9udge8s summary of the eviden e given on behalf of Hello! as to what
their intentions were* +he 9udge then e5pressed his on lusion thus, at para ;.7G

"4 have not found 8enor 8anche! )unco or Mr Iuke to be reliable as witnesses but 4 do accept the evidence they gave on this subject. Fhilst 4 recognise that for a defendant to act out of self5interest does not, of itself, disprove that he had no intent to injure another, here 4 find on the evidence that there was no intent to injur e by unlawful means because there was no intent to injure at all." 3he judge added, in para <-%, that no intent of any of the defendants other than 8enor 8anche! )unco was proved and that he did not hold 8enor 8anche! )unco to have had "any intent to injure the &ouglases". Although the judge was there referring specifically to the &ouglases, it is plain that his conclusion was the same vis5Q5vis *#+. *179 -ntention. conclusions in relation to the ,ud/e0s findin/s /66 Caras ;.3$;.7 are fatal to Mr Erowne8s argument that test (a) or (b) set out in para
-37 above was satisfied* +he 9udge plainly found that Hello! had not aimed, dire ted or targeted their ondu t at ()! +hey had no spe ifi ob9e t to ause e onomi harm to ()!* Mr Erowne, on behalf of ()!, sought to hallenge the 9udge8s findings of fa t in this appeal* He argued that the 9udge was wrong to hold that Hello! did not have the sub9e tive intention, in the sense of ob9e t or purpose, of ausing in9ury to ()!* However, the 9udge heard and onsidered an enormous body of eviden e in luding oral eviden e and rea hed the lear on lusion set out in para ;.7 of his 9udgment* +his ourt will very rarely interfere with a 9udge8s on lusions of fa t in su h ir umstan es* +here was ample eviden e upon whi h the 9udge ould properly rea h the on lusion whi h he did, and in our 9udgment there is no basis upon whi h we ould properly interfere with that on lusion* Ft follows that the first way in whi h ()! put their ase on intention is not made out* /63 @e turn to the se ond way in whi h ()! put their ase, namely that Hello! Bnew their ondu t would inevitably, or alternatively probably, ause e onomi harm to ()!* +he Bey part of the 9udge8s findings is in the opening words of para A-, where the 9udge e5pressly held that 'enor 'an hez Jun o

"knew and ought to have known, as he selected the unauthorised photographs for publication, that what he was doing would or might significantly diminish the benefits which *#+ would otherwise derive from its exclusive contract with the &ouglases ..." 3he judge was not there stating either what was reasonably foreseeable or what 8enor 8anche! )unco "knew or ought to have Bnown", but what he "Bnew and ought to have
Bnown" (our emphasis)* +he 9udge was setting out his on lusion as to 'enor 'an hez

Jun o8s a tual state of mind, namely that he Bnew that publi ation would or might in9ure ()! be ause it would or might diminish the benefits whi h ()! would otherwise derive from the ontra t* /64 +his finding has to be read, however, with the eviden e whi h the 9udge a epted, whi h he set out in paras ;.3$;.A* @hen this approa h is adopted it be omes impossible to argue that the 9udge held, or should have held, that Hello! Bnew that their ondu t would, either inevitably or even probably, ause e onomi harm to ()!* +he 9udge8s finding amounts to no more than Hello! Bnew that their ondu t mi/ht ause e onomi harm to ()!* (n e again this is a finding of primary fa t with whi h we annot properly interfere* Ft follows that the se ond way in whi h ()! put their ase on intention is not made out* /65 @e turn to the third way in whi h Mr Erowne puts ()!8s ase on intention* +he 9udge8s findings of fa t were, we onsider, suffi ient to satisfy test (e)* Hello! Bnew that their ondu t might ause e onomi harm, to ()! and their attitude to this risB an properly be des ribed as re Bless indifferen e* +he riti al 4uestion is whether this attitude of mind was, in law, suffi ient to onstitute "intention to in9ure" in the onte5t of the tort of unlawful interferen e* = ru ial stepping stone in Mr Erowne8s argument in support of test (e) is his ontention that the authorities firmly establish the validity of test (d)* Ft is, indeed, a short step from Bnowledge that ondu t *180 will ause harm to Bnowledge that ondu t may ause harm, oupled with re Bless indifferen e as to whether it does* Fn advan ing test (d) as his starting point, Mr Erowne relies parti ularly on three authoritiesG Jourgoin 8A v Ministry of Agriculture, Eisheries and Eood G1C2-H KJ 11-, Ionrho plc v Eayed G1CC<H 1 A' $$2 and the #uwait *il 3anker 'o 8A# v Al Jader case G<%%%H < All => 'omm <11* +he first of these is a ase on misfeasan e in publi offi e, the se ond a ase on unlawful interferen e and the third a ase on onspira y to in9ure by unlawful means* /36 (ne of the problems with this part of the ase is that ()! have sought to e5pand the way in whi h their ase is put before us, as ompared with the way in whi h it was put before the 9udge* +his an be seen both from the way in whi h the 9udge approa hed the relevant prin iples and from the way in whi h he approa hed the eviden e in the passages we have 4uoted* /3/ +he 9udge onsidered the prin iples relevant to the tort of unlawful interferen e in paras ;.;$;.. of his 9udgment on liability, 9ust before he set out his findings of fa t as to 'enor 'an hez Jun o8s intention* Eefore doing so he first onsidered briefly the tort of interferen e with ontra tual relations, 4uoted a passage from the 9udgment of 'lade LJ in >'A 'orpn v Lollard G1C2DH 'h 1D , -3/, in whi h 'lade LJ was referring only to that tort, and held (in our view orre tly) that there was here no interferen e with the ontra tual relations between the !ouglases and ()!* /30 +he 9udge observed in para ;.2 that ()! must prove an intention to in9ure by unlawful means and said in para ;.. that, although the role of intent is not always des ribed in the same terms in the authorities, it was appropriate to a ept the +ler! & Lindsell formulation (4uoted in para -3/ above) that the tort onsists in one person using unlawful means with the ob9e t and effe t of ausing damage to another* He observed that that was the ase being made by ()! and thus the formulation that Hello! were being re4uired to answer* Ft was in that onte5t that, having on luded, in para ;.7, that Hello! had no intent to in9ure at all, he held that ()!8s laim under this head failed* Ft is we thinB lear therefore that the 9udge was asBing himself whether ()! satisfied the +ler! & Lindsell test, that is whether it was the ob9e t of Hello! to in9ure ()!* He held that it was not* /33 Mr Erowne ontended that the 9udge did not onsider whether intention an be established without the ne essity to prove ob9e t or purpose* +his is orre t but the 9udge is not to be riti ised in any way for that be ause the ase was not put before him in the way in whi h it has been put before us* +he argument based upon Jourgoin, Ionrho plc

v Eayed and the #uwait *il 3anker

ase was advan ed for the first time in detail before us and, although it is said in Hello!8s sBeleton argument that it is not open to ()! to advan e it, both sides made detailed submissions about it and we an see no in9usti e to Hello! in allowing the point to be taBen now* Ft is less lear that the same is true of the development of that argument based upon the proposition that the relevant intention an be established by proof of sub9e tive re Blessness* @e de ided that we would onsider Mr Erowne8s submissions on the basis that, should we be minded to a ept them, we would first afford Mr Cri e the opportunity to advan e further submissions in response to them*

*181 -ntention. our approach to the law /31 Fn

onsidering this area of the law of tort, we have found mu h assistan e in Hazel "arty8s valuable booB, An Analysis of the 1conomic Torts (;00-)* @e also wish to pay tribute to the arti le "Fntentional Fnfli tion of Harm by Hnlawful Means" by Chilip 'ales and !aniel 'tilitz in (-777) --3 LJ? .--* +hey suggest that the tort would more aptly be alled intentional infli tion of harm by unlawful means* @e agree* /32 =s Hazel "arty shows, there are a number of disparate e onomi torts whi h have differing hara teristi s and do not all fall to be approa hed in the same way* +hus are must be taBen in on luding that be ause intention has a parti ular meaning in the onte5t of one of the torts it ne essarily has the same meaning in others* +his an be seen, for e5ample, by referen e to the two torts of onspira y to in9ure to whi h we have already referred* Eoth onspira y to in9ure by lawful means and onspira y to in9ure by unlawful means re4uire intention to in9ure but it is ommon ground that the former re4uires proof that the defendant8s predominant purpose is to in9ure the defendant, whereas the latter does not* /36 Ft does not follow from the fa t that predominant purpose must be established in the former ase that it is ne essary or suffi ient to establish that a purpose was to in9ure in the latter ase* Ft may be ne essary or suffi ient to do so but whether it is or not annot be dedu ed from ases of lawful means onspira y* +he 9udge said, in the onte5t of unlawful means onspira y, at para ;/0G "3his is not an area of the law where it can be assumed that a person intends the natural and probable onse4uen es of his a tions or omissions$$"rofter Hand @oven Harris +weed "o Ltd v Keit h :-7.;< =" .23, ... per Kis ount 'imon L"$$so that for this onspira y to su eed an intent to harm the !ouglases on the part of the Hello! defendants is re4uired to be proved*"

4f the judge was saying that :iscount 8imon I' was expressing any view about intention in an unlawful means conspiracy, we respectfully disagree because the :eitch case involved a lawful means conspiracy where, by contrast with an unlawful means conspiracy, it is common ground that a predominant object or purpose to injure is re6uired. /33 =s we have e5plained, the argument before us pro eeded on the reasonable premise
that the test of intention in the tort of unlawful interferen e is the same as the test in relation to unlawful means onspira y* +here is no agreement that the same is true in relation to the torts of interferen e with ontra tual rights and misfeasan e in publi offi e* @e intend to onsider first ases on unlawful interferen e and unlawful means onspira y, then ases on interferen e with ontra tual rights* +hen, after turning to see what assistan e, if any, is to be derived from ases on misfeasan e in publi offi e, we will e5press our on lusions*

Intention: cases on unla!ful interference and unla!ful means conspiracy /34 +he line of authority starts with Mogul 'teamship "o Ltd v M
Mregor, Mow & "o

(-AA7) ;2 JE! 37A* +he plaintiff shipowners laimed damages on the ground that they had been shut out from profitable "hina trade by the onspira y of the defendants, who had formed a *182 onferen e from whi h the plaintiffs were e5 luded* +he laim failed* Eowen LJ summarised the law as follows, at p /-.G

"Bo man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. 4ntimidation, obstruction and molestation are forbidden7 so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it ... Jut the defendants have been guilty of none of these acts. 3hey have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the context of their own trade. 3o the argument that a competition so pursued ceases to have a just cause or excuse when there is ill5will or a personal intention to harm, it is sufficient to reply ,as 4 have already pointed out. that there was here no personal intention to do any other or greater harm to the plaintiffs than such as was necessarily involved in the desire to attract to the defendants/ ships the entire tea freights of the ports ..." /35 Allen v Elood G12C2H A' 1 involved a demar ation dispute* +he defendant, on behalf
of a group of ironworBers, persuaded their employers to desist from employing the plaintiff shipwrights* +his involved no brea h of ontra t* +he plaintiffs alleged that this ondu t gave rise to liability in tort on the ground that the defendant had mali iously indu ed the employers to a t as they did* +he a tion failed* Lord @atson held, at p 7/G

"3here are, in my opinion, two grounds only upon which a person who procures the act of another can be made legally responsible for its conse6uences. 4n the first place, he will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong. 4n the second place, when the act induced is within the right of the immediate actor and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment of a third party7 and in that case according to the law laid down by the majority in Iumley v ;ye ,12 D. < = M J <1- the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed a/ainst that third
party*" (>mphasis added*) /46 Allen v Elood was distinguished in Kuinn v Ieathem G1C%1H A' $C * +he House of Lords upheld a de ision of the Frish "ourt of =ppeal that a onspira y "wrongfully and mali iously" to indu e ustomers and servants of the plaintiff not to deal with him was a tionable on proof of damage* Lord 'hand e5plained the differen e between the two ases, at p 3-.G "As to the vital distinction between Allen v Elood and the present ase, it may be stated in a single senten e* Fn Allen v Elood the purpose of the defendant was by the a ts omplained of to promote his own trade interest, whi h it was held he was entitled to do, although in9urious to his ompetitors, whereas in the present ase, while it is lear there was ombination, the purpose of the defendants was 8to in9ure the plaintiff in his trade as distinguished from the intention of legitimately advan ing their own interest8*" *ther members of the 9ouse made the point that in Allen v Elood there was no 4uestion of onspira y or of oer ion* /4/ "#)& +he distin tion between the two types of tortious onspira y was drawn by the House of Lords in "rofter Hand @oven Harris +weed "o Ltd v Keit h :-7.;< =" .23 where a trade embargo was held not to be tortious be ause the predominant purpose of the onspirators was to prote t their own interests, not to damage the plaintiffs* +he embargo had involved no illegality and Lord @right, at p ./;, drew a distin tion between su h a onspira y and one to do "a ts in themselves wrongful"* +he mental element ne essary to onstitute the latter type of onspira y tortious was not, however dis ussed* Ft was a matter to whi h Lord !enning M? gave spe ifi onsideration in Ionrho Itd v

8hell Letroleum 'o Itd ,Bo <. "ourt of =ppeal ("ivil !ivision) +rans ript %o 3- of -7A-* /40 Lonrho had been a supplier of oil to 'outhern ?hodesia and had had to ease this
profitable business when the H) imposed san tions on that ountry* Ft alleged that 'hell had onspired unlawfully to breaB the san tions, thereby prolonging the illegal regime in 'outhern ?hodesia and ausing e onomi damage to Lonrho* +he "ourt of =ppeal held that this gave rise to no ause of a tion* Lord !enning M? saidG

"8o this point of law arises directly? 4s an agreement to do an unlawful act actionable at the suit of anyone who suffers damage from it which is reasonably foreseeableP =ven though the agreement is not directed at him, nor done with intent to injure himP 4n discussing this point of law 4 put aside the many modern cases on conspiracy55in which there is an agreement by two or more to do a lawful a t* Ft is now settled by the House of
Lords that su h an agreement is a tionable if it is done with the predominant motive of in9uring the plaintiff and does in fa t in9ure himG see "rofter Hand @oven Harris +weed "o Ltd v Keit h :-7.;< =" .23, ..3, where Kis ount 'imon L" saidG 8Liability must depend on as ertaining the predominant purpose* Ff that predominant purpose is to damage another person and damage results, that is tortious onspira y*8 Here we are on erned with a different problem altogether* Ft is an agreement by two or more to do an unlawful a t *** F thinB there is a ause of a tion when it is remembered that the tort is a onspira y to in,ure* F would suggest that a onspira y to do an unlawful a t$$when there is no intent to in9ure the plaintiff and it is not aimed or dire ted at him$$is not a tionable, even though he is damaged thereby* Eut if there is an intent to in9ure him then it is a tionable* +he intent to in9ure may not be the predominant motive* Ft may be mi5ed with other motives* Fn this onte5t, when the agreement is to do an unlawful a t, we do not get into the 84uagmire of mi5ed motives8, as Kis ount 'imon L" des ribed them in the "rofters ase, at p ..3* Ft is suffi ient if the onspira y is aimed or dire ted at the plaintiff, and it an reasonably be foreseen that it may in9ure him, and does in fa t in9ure him* +hat is what CarBer J thought* F agree with him*" /43 Fn the House of Lords :-7A;< =" -62, -A0, ounsel for Lonrho is reported as advan ing the following argument in relation to the mental element of the tortG

"3he 6uestion of conspiracy assumes no breach of contract, no private rights arising out of breach of the sanctions orders and no allegations of intention to injure. All that is alleged is actual knowledge that damage *184 would be suffered* = onspira y to do an

unlawful a t whi h is arried into effe t and auses reasonably foreseeable damage is a tionable as a onspira y although the a t may not have been tortious in itself* +here is onspira y where an unlawful a t is done pursuant to agreement* Here there was a tually Bnowledge that the a ts done would ause damage to the appellants* +he appellants have pleaded that the histori al development of the tort of onspira y from the rime of onspira y indi ates that a ombination or agreement to do an a t unlawful in itself gives a ause of a tion if it results in foreseeable damage*" /41 Lord !iplo B first onsidered onspira y to in9ure where no unlawful means were employed, at p -A7G

"3he civil tort of conspiracy to injure the plaintiff/s commercial interests where that is the predominant purpose of the agreement between the defendants and of the acts done in execution of it which caused damage to the plaintiff, must 4 think be accepted by this 9ouse as too well5established to be discarded however anomalous it may seem today." 9e then considered the 6uestion of whether it was necessary to establish an intention to injure where the conspiracy involved action that contravened penal law. 9e held, at p 12C? "3his 9ouse, in my view, has an unfettered choice whether to confine the civil action of conspiracy to the narrow field to which alone it has an established claim or whether to extend this already anomalous tort beyond those narrow limits that are all that common

sense and the application of the legal logic of the decided cases re6uire. My Iords, my choice is unhesitatingly the same as that of Larker ) and all three members of the 'ourt of Appeal. 4 am against extending the scope of civil tort of conspiracy beyond acts done in execution of an agreement entered into by two or more persons for the purpose not of protecting their own interests but of injuring the interests of the plaintiff." /42 (ne of the ases upon whi h Mr Erowne parti ularly relies involved a subse4uent
laim by Lonrho* +he sub9e t matter of the litigation was the battle to pur hase the share apital of the House of Iraser whi h owned Harrods* Fn Ionrho plc v Eayed G1CC%H < KJ $1C Lonrho alleged that the Iayed brothers had perpetrated a fraud on the 'e retary of 'tate, thereby se uring permission to buy the ompany without a referen e to the Monopolies and Mergers "ommission and preventing Lonrho from buying the ompany* Fn the "ourt of =ppeal Lonrho did not pursue a laim for tortious onspira y, a epting that this re4uired a predominant intention to in9ure them* +hey did, however, pursue a laim for unlawful interferen e, appealing against an order striBing out this laim* +he appeal su eeded* /46 !illon LJ said, at pp .AA$.A7G

"4t is submitted to us that, even with this tort, it must, as with the tort of conspiracy, have been the predominant purpose of the tortfeasor to injure the victim rather than to further the tortfeasor/s own financial ends. 4 do not accept that. 4t would be inconsistent with the way Iord &iplock treated this tort and the tort of conspiracy differently in his speech in Ionrho Itd v 8hell Letroleum 'o Itd ,Bo <. G1C2<H A' 11D, -A6 and in 9admor Lroductions Itd v 9amilton G1C2DH 1 A' 1C1, ;;A$;;7* %o *185 predominant purpose

to in9ure is re4uired where the tortious a t relied on is in9ury by wrongful interferen e with a third party8s ontra t with the vi tim or by intimidation of a third party to the detriment of the vi tim, nor should it in my view be re4uired where the wrongful interferen e has been by the pra ti e of fraud on a third party, aimed spe ifi ally at the plaintiff, as it was put by (liver LJ in >'A 'orpn v Lollard G1C2DH 'h 1D , -3-e$f *** Ft also has to be proved by a plaintiff who seeBs to rely on this tort, as Mr Eeveridge on eded for Lonrho, that the unlawful a t was in some sense dire ted against the plaintiff or intended to harm the plaintiff* +he origin of those phrases is the oft 4uoted passage in the spee h of Lord @atson in Allen v Elood G12C2H A' 1, 7/, whi h was applied by the ma9ority of this ourt (Eu Bley and )ennedy LJJ) in Bational Lhonograph 'o Itd v =dison5Jell 'onsolidated Lhonograph 'o Itd G1C%2H 1 'h DD * Fn that ase the fraud was learly dire ted against the plaintiff*"

>alph ;ibson I), at p $C<, also referred to "the nature of the intention which is re6uired to satisfy the re6uirement that the conduct be /directed against/ the plaintiffs". /43 @oolf LJ said, at p .7.G "8o far as conspiracy is concerned, there is good reason for re6uiring that predominant intent should be an ingredient of the tort. ;reat difficulty would, in my view, arise if a re6uirement of predominant intent to injure were to be introduced into the tort with which we are concerned here. 3his tort is not based upon any agreement, but interference, and fre6uently it will be fully appreciated by a defendant that a course of conduct that he is embarking upon will have a particular conse6uence to a plaintiff, and the defendant will have decided to pursue that course of conduct knowing what the conse6uence will be. Albeit that he may have no desire to bring about that conse6uence in order to achieve what he regards as his ultimate ends, from the point of view of the plaintiff, whatever the motive of the defendant, the damage which he suffers will be the same. 4f a defendant has deliberately embarked upon a course of conduct, the probable conse6uences of which to the plaintiff he appreciated, 4 do not see why the plaintiff should not be compensated."

/44 Fn the House of Lords :-77;< - =" ..A, Lonrho revived their

laim for unlawful means onspira y, arguing that there was no need to show that the predominant purpose of the onspira y was to in9ure the plaintiff* Ft was enough to show that the defendants Bnew and intended that the plaintiff would be in9ured, albeit that their primary purpose was to benefit themselves* Lord Eridge of Harwi h gave the only spee h, with whi h the other members of the House agreed* He re9e ted the submission advan ed by the Iayeds that Lord !iplo B had held in Ionrho Itd v 8hell Letroleum 'o Itd ,Bo <. G1C2<H A' 11D that, in an unlawful means onspira y, there must be a predominant purpose to in9ure the plaintiff* =fter onsidering the authorities, he summarised the law as follows, at pp ./3$.//G

"Fhere conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, "#)$ however anomalous it may now seem, finds a suffi ient

ground to ondemn their a tion as illegal and tortious* Eut when onspirators intentionally in9ure the plaintiff and use unlawful means to do so, it is no defen e for them to show that their primary purpose was to further or prote t their own interests1 it is suffi ient to maBe their a tion tortious that the means used were unlawful*" /45 Lord Eridge added, at p ./AG "4n GMetall und >ohstoff A; v &onaldson Iufkin M )enrette 4nc G1CC%H 1 KJ DC1< 'lade LJ delivering the 9udgment of the ourt, whilst e5pressly dis laiming any intention to onstrue Lord !iplo B8s spee h as if it were a statute, nevertheless sub9e ted it to a detailed te5tual analysis leading to the on lusion that it laid down a rule of law that the tort of onspira y to in9ure re4uired proof in every ase not merely of an intention to in9ure the plaintiff but also that in9ury to the plaintiff was the predominant purpose of the onspira y* My Lords, F am 4uite unable to a ept that Lord !iplo B or the other members of the =ppellate "ommittee on urring with him, of whom F was one, intended the de ision in Ionrho v 8hell G1C2<H A' 11D to effe t, sub silentio, su h a signifi ant hange in the law as it had been previously understood* +he House, as is lear from the parties8 printed ases, whi h we have been shown, had never been invited to taBe su h a step* Moreover, to do so would have been dire tly ontrary to the view of Lord !enning M? e5pressed in the 9udgment whi h the House was affirming and in onsistent with the di ta in what Lord !iplo B des ribed, at p -AA, as 8Kis ount 'imon L"8s now lassi spee h in "rofter Hand @oven Harris +weed "o Ltd v Keit h :-7.;< =" .23, .278* F would overrule the Metall ase in this respe t* Ft follows from this on lusion that Lonrho8s a eptan e that the pleaded intention on the part of the appellants to ause in9ury to Lonrho was not the predominant purpose of their alleged unlawful a tion is not ne essarily fatal to the pleaded ause of a tion in onspira y and therefore affords no separate ground for striBing out that part of the pleading*" /56 Fn neither Ionrho v 8hell G1C2<H A' 11D nor Ionrho plc v Eayed G1CC<H 1 A' $$2 was the House of Lords onsidering what onstitutes a suffi ient intention for the purpose of establishing an unlawful means onspira y laim* %or indeed was this ourt in Associated Jritish Lorts v 3ransport and ;eneral Forkers/ "nion G1C2CH 1 FI> CDC, but we note that 'tuart$'mith LJ said, at p 7//g$h, that the essen e of the tort was "deliberate and intended damage"* Moreover both he and, at p 73;g$h, %eill LJ 4uoted the passage in the 9udgment of !illon LJ in Ionrho v Eayed, where he said that it must be proved that the unlawful a t was in some way dire ted at the plaintiff, without e5pressing any doubt as to its orre tness* Eutler$'loss LJ referred to &aily Mirror Bewspapers Itd v ;ardner G1C-2H < KJ 1-<, Acrow ,Automation. Itd v >ex 'hainbelt 4nc G1C11H 1 FI> 1-1- and Jrekkes Itd v 'attel G1C1<H 'h 1% , and said :-7A7< - @L? 727, 7/0d$e, that in those three ases it ould be shown that the defendant had the ob9e t and intention to in9ure the plaintiff*

/5/ =ssistan

e is, we thinB, also to be found in the approa h of the %ew #ealand "ourt of =ppeal in Kan "amp "ho olates Ltd v =ulsebrooBs Ltd :-7A.< - %#L? 23., *187 where the plaintiffs sued for interferen e with their business by unlawful means, namely brea h of onfiden e* = preliminary point of law was argued as to the nature of the intent to in9ure the plaintiffs ne essary to establish the tort* +he ourt said, at p 2/0G

"4n principle, as we see it, an attempt to harm a plaintiff/s economic interests should not transmute the defendant/s conduct into a tort actionable by the plaintiff unless that intent is a cause of his conduct. 4f the defendant would have used the unlawful means in 6uestion without that intent and if that intent alone would not have led him to act as he did, the mere existence of the purely collateral and extraneous malicious motive should not make all the difference. 3he essence of the tort is deliberate interference with the plaintiff/s interests by unlawful means. 4f the reasons which actuate the defendant to use unlawful means are wholly independent of a wish to interfere with the plaintiff/s business, such interference being no more than an incidental conse6uence foreseen by and gratifying to the defendant, we think that to impose liability would be to stretch the tort too far. " ,=mphasis added.. /50 Henry J ited those observations with approval in Jarretts M Jaird ,Fholesale. Itd v 4nstitution of Lrofessional 'ivil 8ervants G1C21H 4>I> D, para ;A, although it should be
noted that, in so far as he said that the defendant must have in9ury to the plaintiff as his predominant purpose, he went too far* Iurther, as Hazel "arty points out in her booB at p -06, the "ourt of =ppeal in %ova ' otia asserted that the harm "must be dire ted at the plaintiff " in "heti amp Iisheries "o$operative Ltd v "anada -;2 !L? (.th) -;-, -2;* /53 @e turn to the de ision of this ourt in the #uwait *il 3anker 'o 8A# v Al Jader case G<%%%H < All => 'omm <11* +he appeal related to huge awards of damages against defendants who had onspired fraudulently to divert into their own po Bets in ome that should have a rued to the laimant ompany* "ounsel for the defendants raised the 4uestion of whether the ne essary intention to in9ure had been established, leading to the following passage in the 9udgment, at paras -;0 and -;-G

"1<%. Mr Jrodie submitted that, in order to succeed, the claimant must prove that the particular defendant and the other conspirator or conspirators intended to injure the claimant and that such an intention could not be inferred from the acts themselves. Eor the reasons already given we accept the submission that such an intention must be proved, as held by the 9ouse of Iords in the two Ionrho cases. Fe cannot, however, accept the second part of the submission. 4n many contexts it will be necessary in order to prove intention to ask the court to infer the relevant intention from the primary facts. Fe can see no reason why there should be a special rule of evidence in this situation. *n the contrary, in the case of most conspiracies to injure by tortious means it will be clear from the acts of the conspirators that they must have intended to injure the claimant. 4n the case of a conspiracy to defraud by wholesale misappropriation it would be absurd to argue that the conspirators did not intend just that. "1<1. Mr Jrodie was not able to produce any authority in support of his proposition. Fe are not surprised. An example of such an inference *188 being drawn in a similar field is in Jourgoin 8A v Ministry of Agriculture, Eisheries and Eood G1C2-H KJ 11-, 666,
(liver LJ said, in a part of his 9udgment with whi h both CarBer and %ourse LJJ agreedG 8Ff an a t is done deliberately and with Bnowledge of the onse4uen es, F do not thinB that the a tor an sensibly say that he did not "intend" the onse4uen es or that the a t was not "aimed" at the person who, it is Bnown, will suffer them*8 +he fa ts of the instant ase are a good e5ample* (n the 9udge8s findings of fa t the defendants8 prin ipal purpose was no doubt to line their own po Bets, but they annot be heard to say that they did not intend to in9ure the laimants or that their a ts were not aimed at the laimants* Fn all

the ir umstan es we are unable to a

ept Mr Erodie8s submissions under this head*"

Intention: interference !ith contractual rights /51 +he tort of interferen

e with ontra tual rights overlaps with the torts of unlawful interferen e and unlawful means onspira y* +he lassi form of this tort onsists of dire tly indu ing a third party to breaB his or her ontra t with the laimant, as in Lumley v Mye (-A32) ; > & E ;-/* Fn su h a ase there is no re4uirement for the indu ement to involve unlawful means* @here, however, the indu ement is a hieved indire tly, unlawful means are an element of the tort* Ior present purposes the important 4uestions are what the authorities indi ate in relation to the mental element of the tort and whether those authorities should be applied to the tort of wrongful interferen e* /52 Fn 8outh Fales Miners/ Eederation v ;lamorgan 'oal 'o Itd G1C% H A' <DC the House of Lords made it plain that mali e, in the form of ill$will, was not re4uired for this tort* Ft suffi ed that the defendants Bnowingly and intentionally pro ured a violation of the plaintiffs8 legal rights* Fn &' 3homson M 'o Itd v &eakin G1C <H 'h -$- the defendant union was alleged to have indire tly prevented a supplier from performing its ontra t to supply paper to the plaintiffs by indu ing its members to withdraw their servi es from the supplier* Lord >vershed M? first onsidered the tort of dire tly indu ing a brea h of ontra t and remarBed, at p /66, that it was on eded that the defendant must have a ted with the intention of doing damage to the person damaged and that he must have su eeded in his efforts* 'o far as indire tly pro uring a brea h of ontra t was on erned, the same intention had to be proved, but the tort would only be ommitted if the a ts indire tly indu ing the brea h of ontra t involved wrongful ondu t* /56 +hese prin iples were onfirmed by the "ourt of =ppeal in 3or6uay 9otel 'o Itd v 'ousins G1C-CH < 'h 1%-, although the tort was e5tended to pro uring interferen e with the e5er ise of ontra tual rights that did not involve a brea h of ontra t* Lord !enning M? observed, at p -2AG "the interferen e must be deliberate* +he person must Bnow of the ontra t, or at any rate, turn a blind eye to it and intend to interfere with it*" /53 Merkur 4sland 8hipping 'orpn v Iaughton G1C2DH < A' 1% was another ase of indire t interferen e* Hnion offi ials bla Bed a ship, with the result that the plaintiff shipowners were unable to perform a time harter* Lord !iplo B onfirmed that the tort re4uired intention on the part of the defendants to pro ure the brea h of ontra t* He held that the intention e5isted be ause the defendants must have Bnown that the ship was about to "#)* sail pursuant to a ontra t of arriage and diminishing the earnings under the ontra t was the only way of putting pressure on the shipowners* /54 +he defendants8 ondu t in the Merkur ase was aimed or dire ted at the shipowners* Lord >vershed M?8s omments in &' 3homson M 'o Itd v &eakin G1C <H 'h -$- suggest that this was a ne essary element of the tort* Ff so, a laim by the harterers, or indeed by holders of bills of lading, would not have su eeded* Fn &imbleby M 8ons Itd v Bational "nion of )ournalists :-7A.< - @L? .;6, the defendant union aused its members to withdraw their labour from the plaintiff, thereby preventing the plaintiff from performing a ontra t with a firm of printers* +he ondu t was aimed, primarily, not at the plaintiff but at the printers, with whom the union was in dispute* +he plaintiff8s laim for an in9un tion was upheld by the House of Lords* /55 +hus far, 9udi ial statements in relation to intention are wholly onsistent with those in relation to the tort of unlawful interferen e* +here is no re4uirement of a predominant intention to harm the laimant, but su h harm must none the less be an ob9e t of the defendant8s ondu t, albeit aimed at a hieving an ulterior purpose* &imbleby was su h a ase* +he ultimate ob9e t was to harm the printers, but there was a deliberate intention to prevent !imbleby from performing the ontra t in order to a hieve this end*

066 +he de ision that is somewhat out of step with the authorities is that of this Millar v Jassey G1CC$H =MI> $$* 'hirley Eassey had ontra ted with !reampa

ourt in e, a re ord produ er, to re ord an album of songs* !reampa e ontra ted with the plaintiffs to provide the ba Bing* Miss Eassey then de lined to maBe the re ording, with the result that !reampa e ould not perform its ontra t with the plaintiffs* +hey sued Miss Eassey for indu ing brea h of ontra t* Miss Eassey sought to have the laim stru B out on the ground that the plaintiffs had not alleged that Miss Eassey had a ted with the intention of ausing them damage or that her a tions were dire ted at them* +he 9udge stru B out the laim and the plaintiffs appealed* 06/ Eeldam LJ ondu ted a review of the authorities and was parti ularly impressed by the passage that we have already 4uoted in the 9udgment of @oolf LJ in Ionrho plc v Eayed G1CC%H < KJ $1C* He observed :-77.< >ML? .., 3-G

"4n the passage cited, Foolf I) was in my opinion emphasising the distinction between an intention to bring about a conse6uence and the desire to do so and was pointing out that a person can intend a conse6uence if he knows that it will follow from a course of conduct on which he embarks deliberately. Bor in my view can a conse6uence properly be regarded as unintended or incidental if the deliberate action is taken knowing that it must inevitably bring about the conse6uence, desired or not. 4n truth in such a case the actor intends to bring about both the undesired and the desired conse6uence and is willing to bring about the one to achieve the other." 060 'ubse4uently, Eeldam LJ e5pressed this view, at p 33G "4f there is no valid distinction between persuading a man to break his contract with another and making his performance of it impossible by "#*2 depriving him in brea h of
their ontra ts of the servi es of his employees, F do not see a basis for distinguishing the deliberate refusal to perform irrepla eable servi es in brea h of ontra t Bnowing that su h refusal will inevitably maBe the performan e of another8s ontra t impossible* Ff it is a tionable to ause loss to the plaintiff by enti ing or persuading another to breaB his ontra t with the plaintiff, an it be said to be unarguable that it is a tionable to ause su h loss by voluntarily and deliberately refusing to perform a ontra t Bnowing that su h refusal will maBe it impossible for the other party to fulfil his obligations to the plaintiffL F do not thinB so*"

9is conclusion appears in the following passage, at p 2? "4n the present case, on the facts taken to be proved, the appellants establish that the respondent voluntarily broke her agreement with &reampace knowing of the appellants/ contracts and that the performance of those contracts would be impossible if she refused to perform the obligations under her agreement with &reampace. 8ince she must have realised that her talents were essential and irreplaceable, she must have intended that &reampace would be unable to fulfil its obligations to the appellants. 4n such circumstances it seems to me unnecessary to assert a specific intention to interfere with the performance of the appellants/ contracts which must necessarily follow from her own refusal to perform her obligations to &reampace. 4n the absence of any explanation advanced by the respondent for her actions, the only reasonable inference is that in refusing to perform she must have had a purpose of her own to serve which she pursued at the expense of the plaintiffs/ right to contractual performance by &reampace of its obligations." 063 Ceter Mibson LJ did not agree* +he authorities led him to on lude, at p /.G "it is a re6uirement of the tort that it should be established that the defendant by his conduct intended to break or otherwise interfere with and, with that intention, did break or otherwise interfere with a contract to which the plaintiff was a party."

9e also said that he would answer the following 6uestion in the former rather than the latter sense, at p C? "Must the conduct of the defendant ... be aimed directly at the plaintiff, the contracting party who suffers the damage, in the sense that the defendant intends that the plaintiff/s contract should be broken, or is it sufficient that the conduct should have the natural and probable conse6uence that the plaintiff/s contract should be brokenP" 061 ?alph Mibson LJ in lined to the view e5pressed by Ceter Mibson LJ, but on luded
that the authorities were insuffi iently lear to 9ustify striBing out the laim, so the appeal was allowed* 062 'in e the de ision in Millar v Jassey G1CC$H =MI> $$, it is the approa h of Ceter Mibson LJ, rather than that of Eeldam LJ, that has found 9udi ial favour* Fn 4saac *ren v >ed Jox 3oy Eactory Itd G1CCCH E8> 12 , Ja ob J onsidered the tort of interfering with ontra tual relations, whi h *191 re4uires an intention to interfere, and e5pressly followed the approa h of Ceter Mibson LJ, saying, at p 677, that the unlawful ondu t must "in some real sense be 8aimed at8 the ontra t"* Fn *J; Itd v Allan G<%% H KJ 1-<, paras .2 and A;$A2 respe tively, Ceter Mibson LJ himself (with whom "arnwath LJ agreed) and Man e LJ (who dissented in the result) adopted the approa h of Ceter Mibson LJ, in preferen e to that of Eeldam LJ, in Millar v Jassey G1CC$H =MI> $$* Fndeed, they e5pressed the view that Ceter Mibson LJ8s approa h was that of the ma9ority in Millar v Jassey*

Intention: misfeasance in public office 066 +he tort of misfeasan

e in publi offi e o urs when an offi ial a ts beyond his powers provided that the ne essary mental element is present* @hat do the authorities say about that mental element and an what they say be applied to the tort of unlawful interferen eL 063 @e turn first to Jourgoin 8A v Ministry of Agriculture, Eisheries and Eood G1C2-H KJ 11-, whi h, as we have seen, was referred to in the #uwait *il 3anker 'o 8A# v Al Jader case G<%%%H < All => 'omm <11* +he plaintiffs were Iren h produ ers of turBeys* +hey alleged that the minister revoBed their li en e to import turBeys into this ountry by a de ision that was ultra vires and motivated by a desire to assist the Eritish turBey produ ers* +he minister sought to have the plea stru B out on the ground that it la Bed the essential averment that the minister a ted with the purpose of infli ting harm on the plaintiffs, in other words that he had "targeted mali e"* (liver LJ 4uoted, at p 666, the view of the 9udge on this point and then added his own ommentsG

"4 do not read any of the decisions to which 4 have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subse6uently it does. 4 read the judgment in &unlop v Foollahra Municipal 'ouncil G1C2<H A' 1 2 in the sense that mali e and Bnowledge are alternatives* +here is no
sensible reason why the ommon law should not afford a remedy to the in9ured party in ir umstan es su h as are before me* +here is no sensible distin tion between the ase where an offi er performs an a t whi h he has no power to perform with the ob9e t of in9uring = (whi h the defendant a epts is a tionable at the instan e of =) and the ase where an offi er performs an a t whi h he Bnows he has no power to perform with the ob9e t of onferring a benefit on E but whi h has the foreseeable and a tual onse4uen e of in9ury to = (whi h the defendant denies is a tionable at the instan e of =)* Fn my 9udgment ea h ase is a tionable at the instan e of = and, a ordingly, F determine that paras ;2 and 2/ of the amended statement of laim do dis lose a ause of a tion* Ior my

part, F too an see no sensible distin tion between the two ases whi h the 9udge mentions* Ff it be shown that the minister8s motive was to further the interests of >nglish turBey produ ers by Beeping out the produ e of Iren h turBey produ ers$$an a t whi h must ne essarily in9ure them$$it seems to me entirely immaterial that the one purpose was dominant and the se ond merely a subsidiary purpose for giving effe t to the dominant purpose* Ff an a t is done deliberately and with Bnowledge of its onse4uen es, F do not thinB that the a tor an sensibly say that he *192 did not 8intend8 the onse4uen es or that the a t was not 8aimed8 at the person who, it is Bnown, will suffer them* Fn my 9udgment, the 9udge was right in his on lusion also on this point*" 064 (n the fa ts alleged in Jourgoin/s case G1C2-H KJ 11-, this statement of the law ould be re on iled with the re4uirement of intention in the tort of unlawful interferen e* Ft was the intention of the minister that harm should be aused to the Iren h produ ers* +his was be ause ausing su h harm would fulfil the ulterior ob9e t of benefiting the Eritish produ ers* Ft was ne essary to ause the harm in order to onfer the benefit* "ausing the harm was "a subsidiary purpose for giving effe t to the dominant purpose"* Fn other words, Jourgoin was a ase where test (b) was satisfied* 065 Jourgoin was a ase where a positive a tion by the minister was aimed or dire ted at the laimants, the Iren h turBey produ ers* 3hree >ivers &istrict 'ouncil v ;overnor and 'ompany of the Jank of =ngland ,Bo D. G<%%DH < A' 1 was a very different ase* +he laim was brought by reditors of EanB of "redit and "ommer e Fnternational '= ("E""F")* +he allegation was that the EanB of >ngland had wrongly granted a li en e to, or failed to revoBe the li en e of, E""F when it Bnew, believed or suspe ted that E""F would ollapse if not res ued* +here was no allegation that the EanB8s ondu t was aimed or dire ted at the laimants* Creliminary issues were tried that raised the 4uestion of whether the laimants had pleaded a viable ase* +hese raised 4uestions as to the ingredients of the tort of misfeasan e in publi offi e* (ne su h 4uestion related to the state of mind that had to be demonstrated in respe t of the damage that the laimants alleged that they had suffered* +he laimants alleged that it suffi ed if the damage that they sustained was reasonably foreseeable by the EanB* 0/6 =ll members of the House of Lords agreed that there were two forms of the tort* "ommon to ea h was that the defendant must have ommitted a deliberate and dishonest abuse of power* +his, however, was not of itself enough to establish liability for onse4uent e onomi in9ury* = further mental element had to be established in relation to this* =ll were agreed on the first form* +his was des ribed as "targeted mali e", that is a deliberate intention to ause the in9ury to the defendant or to a lass of whi h the defendant is one* 0// =s to the other form, the ma9ority (Lord 'teyn, Lord Hope of "raighead, Lord Hutton and Lord Hobhouse of @oodborough) agreed that this in its turn ould be subdivided into two mental onditions* +he first was Bnowledge that the abuse of power would probably ause in9ury to the laimant or to a lass of whi h he was one* +he se ond was sub9e tive re Bless indifferen e as to whether su h in9ury was aused or not* 0/0 Lord Millett8s reasoning differed from that of the ma9ority* He e5pressed the view, at p ;23, that the element of Bnowledge was a means of establishing the relevant intention, but not a substitute for it* (n the ne5t page he stated that the fa t that the defendant foresaw that his ondu t would probably harm the laimant was not enough* +he inferen e ould not be drawn unless the defendant did foresee the onse4uen es*

Intention: discussion and conclusion 0/3 +he law has always shown a relu
tan e to impose liability in tort for ausing purely pe uniary loss* Fn the ase of onspira y to in9ure that "#*& does not involve the use of unlawful means, the law over omes that relu tan e where the tortfeasors onspire and where the predominant ob9e t of the onspira y is to ause the laimant e onomi harm*

+he fa t that the predominant ob9e t, or (whi h, as far as we an see, is the same thing in this onte5t) the predominant purpose, of the e5er ise is to ause harm is of the essen e of the tort* @here onspirators resort, or indeed an individual resorts, to unlawful ondu t with the ob9e t of ausing the laimant e onomi harm, the law holds the ondu t tortious, even if ausing the harm is not the predominant ob9e t or purpose of the e5er ise* +he tort will be made out even though ausing the harm may only be the means to some other end* 0/1 However, in all ases of alleged unlawful interferen e and unlawful means onspira y where liability has been established, the ne essary ob9e t or purpose of ausing the laimant e onomi harm has not been made out unless the ondu t an be shown to have been aimed or dire ted at the laimant* +hat seems to us to be the onsistent theme in the two Lonrho ases in the House of Lords* 0/2 Fn Ionrho Itd v 8hell Letroleum 'o Itd ,Bo <. G1C2<H A' 11D, -A7 Lord !iplo B referred to "a ts done *** for the purpose *** of in9uring the plaintiff"* Fn Ionrho plc v Eayed G1CC<H 1 A' $$2, Lord Eridge approved Lord !enning M?8s formulation in Ionrho v 8hell "ourt of =ppeal ("ivil !ivision) +rans ript %o 3- of -7A-, in the "ourt of =ppeal, where it was said that "Ft is suffi ient if the onspira y is aimed or dire ted at the plaintiff"* +his approa h is to be found elsewhere* @e note in parti ular the statement in +ler! & Lindsell that the tort onsists of using unlawful means with the ob9e t of in9uring the laimant, the di ta of !illon and ?alph Mibson LJJ in Ionrho v Eayed, 'tuart$'mith LJ8s referen e to deliberate and intended damage in the Associated Jritish Lorts case G1C2CH 1 FI> CDC, and the observations in the Kan "amp "ho olates :-7A.< - %#L? 23. and "heti amp -;2 !L? (.th) -;- ases* 0/6 "ases on other e onomi torts appear to us to have approa hed the 4uestion of intention in the same way* Ior e5ample, in the onte5t of indu ement, in the passage 4uoted above from Allen v Elood :-A7A< =" -, 7/, Lord @atson referred to " the use of illegal means dire ted against a third party"* Fn her booB, An Analysis of the 1conomic Torts, at p -0-, Hazel "arty tra es the tort of unlawful interferen e ba B to the assertion of Lord Lindley in Kuinn v Ieathem :-70-< =" .73, by referen e to Lumley v Mye ; > & E ;-/, that the underlying prin iple was "wrongful a ts done intentionally to damage a parti ular individual and a tually damaging him"* 0/3 +he relevant ondu t was as mu h dire ted at the laimant in the #uwait *il 3anker 'o 8A# v Al Jader case G<%%%H < All => 'omm <11 as in all the others* (nly by diverting in ome that should have gone to the laimants ould the defendants have enri hed themselves* Fn other words test (b) was satisfied, be ause the very a t of diverting the money to the defendants re4uired and involved (as opposed to merely resulted in) diverting the money away from the laimant* Fndeed, it may be said that the wrongful a t of diverting the money from the laimant in a sense pre eded the ulterior motive, namely the re eipt of the money by the defendant* However, in some situations an unlawful a t will have adverse finan ial onse4uen es to third parties, whi h are foreseeable and foreseen, but whi h are not onse4uen es that the defendant desires or has any interest in bringing about* +he statement from "#*' the Jourgoin case G1C2-H KJ 11- ited in the #uwait *il 3anker ase might suggest that foresight of onse4uen es must always be e4uated with intention to ause them$$i e that satisfying test ( ) will suffi e to establish the ne essary intention* However, as we have e5plained in para ;0A above, looBed at the onte5t in whi h the statement was made, it does not arry that inferen e* 0/4 +he authorities that we have onsidered indi ate that it is of the essen e of the torts of unlawful means onspira y and unlawful interferen e that the ondu t that auses the harm is aimed or dire ted at the laimant, and that in su h ases the ourts have inferred that the re4uisite intention, that is the purpose or ob9e t of ausing the laimant e onomi loss, is present* +he one dis ordant voi e is that of @oolf LJ in Ionrho plc v

Eayed G1CC%H < KJ $1C* He postulated that foresight by a defendant of harm to a plaintiff
was suffi ient to satisfy the mental element in the tort of unlawful interferen e even though there was no desire to bring about that onse4uen e in order to a hieve what he regarded as his ultimate end* Ff by this @oolf LJ meant that foresight of an in idental onse4uen e of unlawful a tion suffi ed to onstitute the mental element of the tort, even though a hieving that onse4uen e was no part of the defendant8s design, we onsider that his statement was ontrary to the weight of the authority that we have summarised* 0/5 =s to the ases on interferen e with ontra tual rights, +ony @eir in his published le tures 1conomic Torts (-776) rea ted strongly against the de ision in Millar v Jassey G1CC$H =MI> $$* He said, at p -7G

"Admittedly it was a striking5out action, but what nonsense that it should go to trial, that Miss Jassey should have to defend herself against five people she had never contracted with and did not aim to harm just because she changed her mind about making a recording. Must 4 perform my contract with you just because a third party may, to my knowledge, suffer if 4 don/tP 8uppose that 4 agree to buy goods from you knowing that if the sale goes through, your agent will received a hefty commission? am 4 liable to him for refusing to accept deliveryP 4n such a case there is only one third party? in Millar v Jassey the defendant looBed to be liable to a whole or hestra plus the ele troni banB*
!ear me! Crivity ome ba B!$$almost all is forgiven* Ft is easy to see how wrong this de ision is, and we shall see later how it ame to be possible*" 006 (ther ommentators have e5pressed similar, although more moderate, views* @e onsider that the on lusions of Ceter Mibson LJ are to be preferred to those of Eeldam LJ* Ft is often the ase that failure to perform one ontra t will lead to a series of onse4uent brea hes of ontra ts to whi h the original ontra t breaBer is not party* +o render him liable for these brea hes simply be ause they are onse4uen es whi h he foresaw would be to undermine the do trine of privity of ontra t* 00/ Crofessor @eir and most other writers, in luding Hazel "arty and Messrs 'ales and 'tilitz, are of the view that the gist of all the e onomi torts is the intentional infli tion of e onomi harm* @e onsider that this is a fair and satisfa tory on lusion to draw from the authorities, diffi ult as some of these are to re on ile* Fntention to infli t harm on a laimant is not the same as a wish to harm him* Ft is, however, very different from Bnowledge that e onomi harm will follow as a result of in idental onse4uen es of ondu t, "#*3 when those onse4uen es are not ne essary steps in a hieving the ob9e t of the ondu t and are unsought* 000 3hree >ivers &istrict 'ouncil v Jank of =ngland ,Bo D. G<%%DH < A' 1 establishes that foresight of probable in9ury or sub9e tive re Blessness as to whether su h in9ury is aused is the mental element re4uired in relation to the onse4uen es of abuse of power, if the ause of a tion of misfeasan e in publi offi e is to be made out* +his is a developing tort, as is the tort of unlawful interferen e* Fs there a ase for e4uating the mental element in the two tortsL +he House of Lords did not so suggest in the +hree ?ivers ase, and "larBe J, who sat at first instan e in the 3hree >ivers case G1CC-H D All => 2, 3A2, did not onsider that there was* @e do not onsider that there is* +he gist of the tort of misfeasan e in publi offi e is the deliberate abuse of power* +he mental element in the first form of the tort, namely targeted mali e, bears strong e hoes of the mental element re4uired for unlawful interferen e, parti ularly in the early days of the development of that tort* +he same is not true of the alternative re4uirements of foresight of onse4uen es or sub9e tive re Blessness* +hese are not the gist of the tort1 they are loser to ontrol me hanisms limiting the liability that flows from the wrongful ondu t* 003 +he gist of the tort of unlawful interferen e is the intentional infli tion of e onomi harm* Fn other words, it must be shown that the ob9e t or purpose of the defendant is to infli t harm on the laimant, either as an end in itself, or as a means to another end* Ff

foresight of probable onse4uen es or sub9e tive re Blessness suffi ed as the mental element of the tort, this would transform the nature of the tort* +his, in effe t, is what Mr Erowne sought to persuade us to do when he advan ed tests (d) and (e) as suffi ient to satisfy the mental element in the tort of unlawful interferen e* Fndeed, we taBe the view that satisfa tion of test ( ) would not be suffi ient to establish the re4uisite mental element* However, as mentioned in para -37 above, establishing that the defendant Bnew that the laimant would suffer e onomi loss may well be eviden e whi h an support a ontention that test (b) or even test (a), is satisfied* 001 Ft might be possible to envisage a ase in whi h an intention satisfying test (a) or (b) ould be established even though the unlawful a t was not aimed, targeted or dire ted at the laimant* >4ually it might be possible to envisage a ase in whi h the relevant intention was not established, even though the unlawful ondu t was in some way dire ted at the laimant* +hese are, however, unliBely s enarios and the de ided ases do not provide an e5ample of either* Fn prin iple we agree with Hazel "arty, and what she des ribes as "most ommentators", that it is ne essary to prove targeted or dire ted harm* +he essen e of the tort is that the ondu t is done with the ob9e t or purpose (but not ne essarily the predominant ob9e t or purpose) of in9uring the laimant or, whi h seems to us to be the same thing, that the ondu t is in some sense aimed or dire ted at the laimant* 002 Ior the reasons that we have given, we re9e t this part of ()!8s ase and hold that the laims founded on the e onomi torts are not made out*

Unla!ful means 006 Fn the light of the above

on lusions it is stri tly unne essary to onsider what amount to unlawful means for the purposes of the tort with whi h we are on erned* @e therefore refer to it relatively shortly* 003 "#*$ +here is s ope for argument as to what an and annot amount to unlawful means for the purposes of the tort of interferen e with business by unlawful means or of the tort of onspira y to in9ure by unlawful means* Ft is not suggested that any distin tion is to be drawn between the two torts for this purpose* Ft appears possible that not every unlawful a t amounts to unlawful meansG see for instan e >'A 'orpn v Lollard G1C2DH 'h 1D * Eut, if that is so, it is not always easy to Bnow whi h a ts 4ualify and whi h do not* However, it appears to us that the e5 eptions should be few and identified on some lear and prin ipled basis* 004 +he e onomi torts may be regarded as somewhat anomalous, in the sense that they give rise to a laim by a party who, e5 hypothesi, is not within the lass of persons who ould laim for damage suffered simply as a result of the a t embodied in the "unlawful means"* However, on e one a epts the e5isten e of the e onomi torts, it seems to us that it would add to any anomalies if only ertain types of unlawful a ts ould, as a matter of prin iple, 4ualify as "unlawful means", at any rate unless the prin iples of e5 lusions were learly identified and 9ustified* Ft would be more onsistent and more liBely to lead to 9ust results if any unlawful a t ould be "unlawful means", while re4uiring a suffi ient ne5us between the a t and its unlawfulness and the harm omplained of* +he need for a laimant to establish an intention on the part of the defendant to harm him, suffi ient to satisfy test (a) or (b), would, at least normally, serve to in orporate this rather ill$defined referen e to a suffi ient ne5us, although it is right to add that it also goes further than that* 005 Iortunately, it is not ne essary for us to try to identify or formulate any e5 lusionary prin iple of general appli ation in order to determine this appeal* Fn the light of the de ided ases, it would not be easy to do so* +he 4uestion here is whether publi ation by Hello! of unauthorised photographs whi h amounts to an infringement of the !ouglases8 rights of priva y and a brea h of a duty of onfiden e owed to them is suffi ient unlawful

means to entitle ()! to maintain a laim in tort for loss intentionally aused to it by the publi ation* 036 Fn +ler! & Lindsell, paras ;.$76, ;.$7A, the editors onsider whether brea h of onfiden e an amount to "unlawful means", albeit for the purpose of the tort of interferen e with e onomi interests, and on lude that it an* =s they suggest in the te5t and the footnotes, this view seems to be supported by the ma9ority of this ourt ((tton LJ and (wen J) in 4ndata =6uipment 8upplies Itd ,trading as Autofleet. v A'I Itd G1CC2H E8> <$2* +he fa ts were these, essentially as summarised by +ler! & Lindsell* = broBer arranged through a finan e house the leasing of ars and omputers for lients* Fn one transa tion he gave onfidential information about the lient and his own trade terms, in luding his profit margin, to the defendant whi h used it without authorisation to offer more attra tive terms, aiming to ut out the broBer from deals with the lient* Ft was held that there was no fidu iary duty or relationship between the broBer and the finan e house1 they were at arm8s length* However, it was held that the broBer8s profit margin and to a lesser degree the invoi e pri e between the defendant and the broBer were items of onfidential information whi h had been misused by the defendant to enable it to put forward another deal to the lient* 03/ Fn these ir umstan es the laim su eeded in brea h of onfiden e so that the views of the ma9ority of this ourt on the tort of unlawful "#*( interferen e with business or, as (tton LJ put it, e onomi or other interests, were obiter* 'imon Erown LJ preferred to e5press no view on the point* (tton LJ said, at p ;/0, that in the parti ular ir umstan es of the ase, the brea h of ontra t oupled with the ruthless ondu t of the defendant would amount to unlawful means* (wen J agreed that the defendant had used unlawful means* 030 +hat was a stronger ase than this on the fa ts, and ea h ase depends upon its own fa ts* However, the position here was that Hello! published photographs whi h it Bnew to be unauthorised by the !ouglases in ir umstan es in whi h it also Bnew that ()! had a 4uired the rights to publish authorised photographs of the wedding and that it was ()!8s ase that the publi ation would be in brea h of duties of onfiden e owed both to ()! and to the !ouglases* Fndeed, two 9udges had granted an in9un tion to restrain Hello! from publishing the photographs and, although the "ourt of =ppeal had allowed Hello!8s appeal against the interlo utory in9un tion (but had not yet given its reasons for doing so), Hello! must have appre iated that the ourt may well on lude that ()!8s ase was well$founded, although damages would be an ade4uate remedy* 033 +o publish unauthorised photographs in those ir umstan es with the intention of in9uring ()! (in the sense dis ussed above) and in fa t in9uring ()! was in our opinion to do so by unlawful means, namely the infringement of the rights of the !ouglases* Moreover there would have been, in our view, a suffi ient ne5us between the publi ation, the fa t that it was unlawful and the in9ury to ()! to 9ustify the on lusion that there was here an interferen e with the business of ()! ommitted with the intention of in9uring ()!* 031 @e re ognise that, having regard to the on lusions rea hed earlier as to ()!8s laim for brea h of onfiden e, there was no brea h of a duty of onfiden e owed to ()!, but it annot be ne essary for the unlawful means to amount to an a tionable infringement of the laimant8s own rights* (therwise the tort would be largely ineffe tiveG see Associated Jritish Lorts v 3ransport and ;eneral Forkers/ "nion G1C2CH 1 FI> CDC, espe ially per 'tuart$'mith LJ, at p 7/3* 032 = ordingly, if we had held that ()! had satisfied the high test of intention, bearing in mind the prin iple suggested by 'ales and 'tilitz that it is not appropriate to determine whether the means used were in a relevant sense unlawful by the seriousness of the ivil wrong, we would have held that the test of unlawful means was satisfied*

Conclusion on %K&'s cross+appeal

036 Ior the reasons given above, ()! has failed to establish that Hello! had the re4uisite
intention to establish the tort of unlawful interferen e with business or onspira y to in9ury by unlawful means with the result that ()!8s ross$appeal fails*

The t!o issues on damages 033 =s mentioned above, two issues were raised before us on the 9udge8s assessment of
damages* Ee ause we have allowed Hello!8s appeal against the 9udgment in favour of ()!, the first of those issues, whi h only bears on the level of damages awarded to ()!, has be ome moot* @e none "#*) the less propose to deal with it, and we will then turn to the !ouglases8 appeal in relation to damages* +hat appeal is in point be ause we have on luded that ()! have no ause of a tion against Hello!1 a ordingly, the !ouglases maintain their ontention that the damages they were awarded were far too low, and, in parti ular, were assessed on a wrong basis*

*iability for losses from publication in the ne!spapers 034 =fter the 9udgment on the issues of liability, there was, as we have mentioned, a
subse4uent hearing to determine the measure of damages* ()!8s damages were assessed on the basis of the profit they lost as a result of the redu tion in sales of the two issues of "()!" magazine ontaining the authorised photographs aused by the publi ation of the unauthorised photographs* +he 9udge de ided, when assessing the effe t on the ir ulation of issues ;.- and ;.; of "()!" magazine, that he should taBe into a ount not only the effe t of the publi ation of the unauthorised photographs in "Hello! " magazine, but also that of the publi ation of opies of some of those photographs in the "'un" and in the "!aily Mail" on (or shortly after) ;. %ovember ;000* Ior Hello! it is said that this was wrong in prin iple, in light of the fa ts found by the 9udge* +he relevant fa ts relied on to support that ontention are as follows* 035 Iirst, no onsent was ever given by Hello! to the publi ation of any photographs in the two newspapers* 'e ondly, following the dis harge of the interlo utory in9un tion, the two newspapers had been e5pressly forbidden by Hello! from publishing the photographs* +hirdly, at the time they were forbidden from publishing any of the photographs, it was not too late for the 'un to have withdrawn from publishing them, even though preparatory steps had been taBen to do so* Iourthly, the 9udge said, in para -.0 of his main 9udgment, that, albeit after "a hesitant start", Hello! had "a ted with reasonable speed to stop publi ation by others"* Fn these ir umstan es, it is said that the 9udge8s on lusion, whose basis was only briefly e5plained in the damages 9udgment, that the damages flowing from the publi ation of the unauthorised photographs were not "so remote a onse4uen e of Hello!8s publi ation as not to be laid at Hello!8s door", annot stand* 016 Fn our 9udgment, although it might have been better if the 9udge had given fuller reasons for his de ision on this point, his determination on remoteness was one that he was entitled to rea h* @hile the resolution of the 4uestion of remoteness will often involve issues of law, it is normally a fa t$sensitive determination, whi h must arry with it a degree of inferen e and value 9udgment* =s Laws LJ said in McManus v Jeckham G<%%<H 1 FI> <C2<, para 27, in onne tion with a slander a tionG "+he reality is that the ourt has to de ide whether, on the fa ts before it, it is 9ust to hold :the defendant< responsible for the loss in 4uestion*" +he 9udge held that the "but for" test was satisfied, but that that was learly not enough (although it was ne essary) to 9ustify his on lusion* However, there were a number of other findings, or items of un ontroversial eviden e, whi h, when taBen together, in our view, 9ustify his on lusion*

01/ Iirst, Hello! Bnew well before ;. %ovember ;000 that some newspapers were
wishing to publish opies of some of the unauthorised photographs* 'e ondly, it had been indi ated on behalf of Hello! that the newspapers might be able to do so* +hirdly, there was eviden e that it was "#** not un ommon for newspapers to opy at least the front over of "Hello!" (as well as "()!") magazine* Iourthly, it was foreseeable, espe ially to those in this business, that these photographs would provide parti ularly attra tive opy for the newspapers, bearing in mind their sub9e t matter and ontroversial history* Iifthly, there was Hello!8s "hesitant start" referred to by the 9udge* 'i5thly, there was the 9udge8s finding in his 4uantum 9udgment that, after the newspapers learnt of the dis harge of the interlo utory in9un tion, "they not unnaturally thought that they were free to use the pi tures"* 'eventhly, given that Hello! were publishing photographs whi h they well Bnew had been taBen in an underhand way, it ould s ar ely have ome as any surprise that others in the same line of business were prepared to run risBs by publishing opies of those photographs* Fndeed, having agreed to the ir umstan es in whi h the photographs had been taBen, it is 4uestionable whether Hello! ould su essfully have brought pro eedings for brea h of opyright* >5 turpi ausa non oritur a tio* 010 Fn all these ir umstan es, we have rea hed the on lusion that the 9udge was entitled to de ide, as he did, that the losses suffered by ()! from the publi ation of the unauthorised photographs in the two newspapers were "suffi iently onse4uential upon the brea h and suffi iently foreseeable to maBe Hello! Ltd liable for them in the normal way"*

The $ouglases' claim for a notional licence fee 013 @hen it

ame to the assessment of damages, the !ouglases were awarded , 2,630 ea h as general damages for mental distress, plus a further ,6,000 between them for additional e5penses and disruption in respe t of sele ting photographs for publi ation* Miven that they are entitled to damages and that ()! are not entitled to damages, it is ontended on behalf of the !ouglases that they should be entitled to more substantial damages, namely a sum e4ual to the notional li en e they would have harged Hello! to permit them to publish the unauthorised photographs* +he !ouglases also ontend that the 9udge8s assessment of that fee at ,-;3,000 was signifi antly too low* @e observe at the outset that it is not easy to understand why the !ouglases8 appeal in this onne tion should be ontingent upon Hello!8s appeal su eeding against ()!* +his anomaly raises an immediate 4uestion marB over the validity of this laim* 011 Ft is well established that damages in a ase involving unauthorised use of, or unauthorised benefiting from, intelle tual property and similar rights an be assessed in a number of different ways* Fn ;eneral 3ire M >ubber 'o v Eirestone 3yre and >ubber 'o Itd G1C1 H 1 FI> 21C, A;.$A;6, Lord @ilberfor e identified the normal ategories at least in patent ases* +hey are the profit, or the royalty, whi h was or would have been a hieved (e g where the defendant manufa tures, or li en es the manufa ture of, goods overed by the patent), and the li en e fee whi h would reasonably have been harged (e g where it is not possible to assess the level of profit)* +he present ase is far from normal, and in our view none of these normal methods of assessment would be appropriate* 012 +his is not a ase where a profit was made by the defendantG bearing in mind the payment they made, ,-;3,000, for the unauthorised photographs, Hello! a tually made a loss on the whole e5er ise* +his is not a ase where a royalty, or its e4uivalent, would be appropriate, partly for the "%22 same reason, and partly be ause Hello! effe ted no li ensing, or its e4uivalent, in relation to the use of the unauthorised photographs* 016 +here are obvious problems with assessing the !ouglases8 damages on a notional li en e fee basis* Iirst, the whole basis of their (as opposed to ()!8 s) omplaint about Hello!8s publi ation of the unauthorised photographs is upset and affront at invasion of

priva y, not loss of the opportunity to earn money* Fndeed, they have already laimed and been paid, damages assessed on that former basis* +hat fa tor alone would not prevent an assessment on a notional li en e fee basis, but it is not a good start* 'e ondly, the !ouglases would never have agreed to any of the unauthorised photographs being published* +he li en e fee approa h will normally involve a fi tional negotiation, but the unreality of the fi tional negotiation in this ase is palpable* 013 +hirdly, and most importantly, having sold the e5 lusive right to publish photographs of the re eption to ()!, the !ouglases would not have been in a position to grant a li en e to Hello!* Fn this onne tion, we do not onsider that, in light of the terms of the ()! ontra t, espe ially lause -0, the !ouglases ould laim to be re4uired to a ount for the notional li en e fee to ()!* = ordingly, an award of a notional li en e fee would involve the !ouglases being un9ustly enri hedG they have already been paid ,-m for the e5 lusive right to publish photographs of the re eption* =s was said in argument, they have thereby e5hausted their relevant ommer ial interest* 014 Juite apart from these fa tors, while it is not a suffi ient reason for re9e ting the notional li en e fee approa h, there is the diffi ulty of assessing a fee* +he !ouglases would have been very unwilling to agree to publi ation of the unauthorised photographs in light of the terms of the ()! ontra t, the 4uality of the photographs, and the ir umstan es in whi h they were taBen* Hello! would presumably have been prepared to pay at least , -;3,000, as that is what they a tually paid for them, but Mr Erowne made it lear that the !ouglases would have wanted a lot more* +he worse the 4uality of the photographs, the less they would have been worth to Hello! and the more the !ouglases would have wanted for their publi ation* 015 Fn all these ir umstan es, we are of the view that a notional li en e fee would not be the right basis on whi h to assess the !ouglases8 damages, even given that they, but not ()!, are entitled to laim against Hello!* Ff, however, Hello! had made a profit on the publi ation, we would have had no hesitation in a epting that the !ouglases would have been entitled to seeB an a ount of that profit* 'u h an approa h would not run into the diffi ulties of prin iple whi h their notional li en e fee argument fa es* 'u h an approa h may also serve to dis ourage any wrongful publi ation, at least where it is motivated by money* 026 Iinally, if it had been right to award damages to the !ouglases on the basis of a notional li en e fee, we would not, in any event, have thought it right to interfere with the 9udge8s assessment of ,-;3,000* Karious fa tors to whi h we have made referen e render it impossible to ontend that the figure adopted by the 9udge was one whi h he ould not properly have rea hed* @e have in mind the fa t that the assessment was a matter of valuation opinion, the diffi ulties inherent in this parti ular assessment, the fa t that Hello! a tually paid ,-30,000 for the unauthorised photographs, and the fa t that Hello! made a loss on the whole e5er ise*

*201 The dischar/e of the interlocutory in,unction 02/ @e turn to an issue upon whi
h we were not addressed, but whi h we believe 9ustifies revisiting* Ft is the de ision of this ourt in %ovember ;000 :;00-< JE 7/6 to lift the interlo utory in9un tion granted by Hunt J, restraining Hello! from publishing the unauthorised photographs* Fn our view, in the light of the law as it an now be seen to be, that de ision was wrong, and the interlo utory in9un tion should in fa t have been upheld* 020 +he reasons given by the three members of this ourt for on luding that an interlo utory in9un tion was inappropriate were slightly different* ErooBe LJ onsidered that it was no more than arguable that the !ouglases "had a right to priva y whi h >nglish law would re ognise", and that their laim based on priva y was "not a parti ularly strong one" (paras /0 and 73)* =lthough 'edley LJ thought that the !ouglases had "a powerful prima fa ie laim to redress for invasion of their priva y", he

onsidered that "by far the greater part of that priva y has already been traded and falls to be prote ted, if at all, as a ommodity in the hands of :()!<"G paras -26 and -..* )eene LJ, at para -6-, was primarily influen ed by the point that the " ourt in e5er ising its dis retion at this interlo utory stage must still taBe a ount of the widespread publi ity arranged by the :!ouglases< for this o asion"* 023 Fn our view, these analyses, and indeed the de ision to dis harge the in9un tion, did not give suffi ient weight to two fa tors* +he first was the strength of the !ouglases8 laim for an in9un tion restraining publi ation of the unauthorised photographs* =lthough 'edley LJ tooB the view that they had a strong ase in this onne tion, it would appear that ErooBe and )eene LJJ were more doubtful* +he "ourt of =ppeal did not have the benefit of the reasoning in the House of Lords in 'ampbell v M;B Itd G<%%$H < A' $ 1 or, even more signifi antly for present purposes, the reasoning of the >uropean "ourt of Human ?ights in :on 9annover v ;ermany $% =9>> 1* Had the ourt had the opportunity to onsider those two de isions, we believe that it would have rea hed the on lusion that the !ouglases appeared to have a virtually unanswerable ase for ontending that publi ation of the unauthorised photographs would infringe their priva y* 021 (f ourse, even where a laimant has a very strong ase indeed for ontending that publi ation of information would infringe his priva y, there may be good reasons for refusing an interlo utory in9un tion* Fn the present ase, however, we find it diffi ult to see how it ould be ontended that the publi interest (as opposed to publi uriosity) ould be involved over and above the general publi interest in a free press* Carti ularly so, as it was learly the intention of the !ouglases and ()! to publish a large number of (mu h learer) photographs of the same event* +he fa t that the !ouglases an be fairly said to have "traded" their priva y to a substantial e5tent as a result of their ontra t with ()! does not undermine the point that publi ation of the unauthorised photographs would infringe their priva y* 022 +he se ond fa tor to whi h this ourt appears to have given insuffi ient weight was the liBely level of damages whi h the !ouglases would re over if an interlo utory in9un tion was refused and, as now turns out, publi ation of the unauthorised photographs infringed their rights* @e have been provided with trans ripts re ording remarBs from the Een h *202 during the argument, whi h suggested that the level of damages whi h would be awarded to the !ouglases, if they established that the publi ation of the unauthorised photographs infringed their right to priva y, would be very substantial* Fn the event, the damages awarded to them was the relatively small sum of ,-.,/00 (of whi h nearly half is attributable to the in onvenien e they suffered as a result of having to sele t photographs for publi ation by ()! owing to the imminent publi ation of the unauthorised photographs by Hello!)* 026 +he hara terisation of this sum as "relatively small" is not intended to indi ate that we thinB that the level of damages should have been greater* +he des ription is appropriate be ause damages, parti ularly in that sum, annot fairly be regarded as an ade4uate remedy* =s we have already observed, the !ouglases would never have agreed to the publi ation of the unauthorised photographs* Fn those ir umstan es, bearing in mind the nature of the in9ury they suffered, namely mental distress, a modest sum by way of damages does not represent an ade4uate remedy* 023 +he sum is also small in the sense that it ould not represent any real deterrent to a newspaper or magazine, with a large ir ulation, ontemplating the publi ation of photographs whi h infringed an individual8s priva y* = ordingly, parti ularly in the light of the state of ompetition in the newspaper and magazine industry, the refusal of an interlo utory in9un tion in a ase su h as this represents a strong potential disin entive to respe t for aspe ts of private life, whi h the "onvention intends should be respe ted* 024 (f ourse, as re ently emphasised by the House of Lords in 'ream 9oldings Itd v Janerjee G<%% H 1 A' < D, a laimant seeBing an interlo utory in9un tion restraining publi ation has to satisfy a parti ularly high threshold test, in light of se tion -;(2) of the Human ?ights = t -77A* However, with the benefit of the reasoning in 'ampbell v M;B

Itd G<%%$H < A' $ 1 and :on 9annover v ;ermany $% =9>> 1, we

onsider that this threshold test was in fa t satisfied by the !ouglases when they sought the interlo utory in9un tion in this ase* 025 +he !ouglases had a very strong laim1 indeed, in the light of the two re ent authorities to whi h we have referred, we would have thought that it was one whi h may well have been lear enough to 9ustify summary 9udgment in their favour* +he award of damages eventually made to the !ouglases, although unassailable in prin iple, was not at a level whi h, when measured against the effe t of refusing them an interlo utory in9un tion, an fairly be hara terised as ade4uate or satisfa tory* (nly by the grant of an interlo utory in9un tion ould the !ouglases8 rights have been satisfa torily prote ted* Iurther, the interests of Hello! at the interlo utory stage, whi h were essentially only finan ial, ould have been prote ted by an appropriate undertaBing in damages by the !ouglases*

Conclusion 066 Fn the event, the out

ome of this appeal is as follows* Hello!8s appeal against the 9udgment in favour of the !ouglases based on priva y and ommer ial onfiden e is dismissed* Hello!8s appeal against the 9udgment in favour of ()! based on ommer ial onfiden e is allowed* ()!8s ross$ "%2& appeal based on the e onomi torts is dismissed* +he laimants8 ross$appeal on damages based on a notional li en e fee is dismissed*

First defendant's appeal against judgment on breach of confidence in favour of first and second claimants dismissed First defendant's appeal against judgment in favour of third claimant allo!ed "hird claimant's cross#appeal on issue of economic torts dismissed First and second claimants' cross#appeal on issue of notional licence fee dismissed $efendants to pa% half claimants' costs of action up to and including 1& 'ul% 2002 (laimants to pa% defendants' costs of action and appeals from 1& 'ul% 2002 $efendants to pa% claimants' costs in (ourt of )ppeal and at first instance in *ovember 2000 (laimants' application for permission to appeal refused C Bovember. 3he Appeal 'ommittee of the 9ouse of Iords ,Iord Bicholls of Jirkenhead, Iord 9ope of 'raighead and Jaroness 9ale of >ichmond. allowed a petition by the third claimant for leave to appeal.