Ipsofactoj.com: International Cases [2003] Part 12 Case 1 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Michael Douglas

- vs -

HELLO! Ltd

LORD PHILLIPS OF WORTH MATRAVERS, MR

LORD JUSTICE RIX

LORD JUSTICE SCOTT BAKER

12 FEBRUARY 2003


Judgment

Lord Justice Rix

(delivered the judgment of the court)

  1. On 18 November 2000 Michael Douglas and Catherine Zeta-Jones, the first and second claimants in these proceedings, married in New York. Their wedding ceremony and reception, the latter of which went on into the early hours of Sunday, 19 November, were held in the Plaza Hotel. They are internationally famous film and television stars. They wished the ceremony and reception to be a private and confidential occasion, subject only to the release for publication of approved photographs exclusively in the weekly celebrity magazine "OK!", which is published by Northern & Shell PLC, the third claimant.

  2. Despite arrangements made to secure the privacy and confidentiality of the occasion and the taking of photographs exclusively on behalf of OK!, a certain number of unauthorised photographs were nevertheless clandestinely taken and almost immediately transmitted digitally to London to Hello! Limited, and from there to Hola SA in Spain. Hello! Limited and Hola SA are referred to as the proprietors of "Hello!", a rival publication to OK! Six of the photographs were used in a "spoiler" issue of Hello! (no 639) which was printed in Spain the same day, Sunday 19 November.

  3. The claimants commenced these proceedings by applying for an interim injunction to prevent publication of the unauthorised photographs in Hello! At that time the only defendant was Hello! Limited. The claimants were at first successful, but on appeal this court discharged the injunction on the basis that damages would be an adequate remedy. The reasons for that decision are reported at [2001] QB 967. We quote from the headnote (at 968B):

    "Allowing the appeal, that although the first and second claimants might establish at trial that publication should not be allowed on grounds of confidentiality, in view of the organised publicity the retained element of privacy was likely to be insufficient to tilt the balance against publication; that damages would be an adequate remedy; and that, accordingly, the balance of convenience came down against prior restraint and the injunction would be discharged…"

  4. So it was that issue no 639 of Hello! was published on 28 November 2000 with the unauthorised photographs in it. The issue was edited in London, printed in Spain, and published in the UK.

  5. Despite their failure in preventing publication, the claimants did however derive some assistance from the judgment of this court on that occasion, for example in the recognition by Sedley LJ of a "powerfully arguable case" by Mr Douglas and Miss Zeta-Jones founded in the right of privacy or the equitable doctrine of breach of confidence and irrespective of a pre-existing relationship of confidence (at paras 125/126; see also para 166 in the judgment of Keene LJ). Since that time a right of privacy or equitable remedy for breach of confidence has been recognised, even in the absence of any pre-existing confidential relationship, in Venables v. News Group Newspapers [2001] Fam 430, A v. B plc [2002] 3 WLR 542, and in Campbell v. MGN Ltd [2003] 2 WLR 80.

  6. At the time of writing this judgment the trial of these proceedings is yet to be heard and this appeal is solely concerned with the threshold pre-trial jurisdictional and procedural question of whether the claimants are entitled to join Mr Philip Ramey as a sixth defendant. Mr Ramey lives in California, and he submits that there is no good arguable case against him within CPR 6.20 such as to entitle the courts of England to exercise jurisdiction over him. He was joined on an application without notice by order of Jacob J on 2 May 2002 and served in California. On 5 July 2002 he applied for service to be set aside and the action against him to be dismissed. His application came before Deputy Master Mark on 14 August 2002 and was unsuccessful. He appealed on the single ground that the claims pleaded against him in the claimants' amended particulars of claim are of insufficient weight to justify service out of the jurisdiction. His appeal came before Laddie J who delivered a reserved judgment allowing his appeal on 3 December 2002. This second appeal, from the decision of Laddie J, was heard on 22 January 2003. Given the imminence of trial, which was due to commence on 3 February, this court gave its decision to allow the claimants' appeal, while reserving its reasons. This judgment now supplies the court's reasons.

  7. It was accepted during argument by Mr Michael Tugendhat QC, counsel on behalf of the claimants, that even if they were successful in this appeal, it would be impossible to include Mr Ramey in the imminent trial against the other five defendants. Nor was there any desire on anyone's part to adjourn the trial. In these circumstances we would recognise the need for this court to be careful not to trespass on the merits of arguments which will be canvassed at trial. This is an appeal only between the claimants and Mr Ramey, even though Mr James Price QC has had a brief opportunity of addressing the court on behalf of the first three defendants as interveners in it. While lending the weight of his submissions in favour of Mr Ramey, Mr Price was anxious to caution the court about the danger of foreclosing, in the course of determining this appeal, any of the issues which lie between the claimants and the other five defendants. We agree with that approach. Where questions of law arise in the context of an application to serve process out of the jurisdiction, it may often be desirable to determine those questions one way or the other, if that is possible. Questions of law arise on this appeal, but it is sufficient if they are dealt with on the basis of a good arguable case (or serious issue to be tried, as may be appropriate, within the learning of Seaconsar Ltd v. Bank Markazi [1994] 1 AC 439). Otherwise there would be the danger that important issues imminently to be debated between the claimants and the other five defendants could be determined in the absence of the latter. If it emerges from trial, that a claim in respect of which it has seemed to this court that there is a good arguable case cannot ultimately be sustained, Mr Ramey will always have a subsequent opportunity of taking advantage of developments in his favour in these proceedings.

    The parties, and the claims against them

  8. We have already introduced the three claimants, the first two defendants and Mr Ramey, the intended sixth defendant. The third, fourth and fifth defendants were also joined by order of Jacob J on 2 May 2002, but in their case there has been no jurisdictional dispute, and they are parties to the imminent trial. The third defendant, Eduardo Sanchez Junco, is the controlling shareholder of the first and second defendants. On behalf of them he made strenuous attempts to secure exclusive rights to cover the wedding of Mr Douglas and Miss Zeta-Jones. The fourth defendant, the Marquesa de Varela (the "Marquesa") acts as an agent of the first and second defendants and assisted as such in their and Mr Sanchez's attempts to obtain exclusive rights to cover the wedding. The fifth defendant, Neneta Overseas Limited ("Neneta"), is a British Virgin Islands company through which the Marquesa conducts her financial business affairs. At the time of Jacob J's order joining Mr Sanchez, the Marquesa, Neneta, and Mr Ramey to these proceedings, it was believed that Neneta had been involved in obtaining the rights in the unauthorised photographs for Hola SA.

  9. Mr Ramey is a well-known photographer who specialises in taking photographs of celebrities. On the basis of a photocopy in evidence of one of the unauthorised photographs, Mr Ramey claims the ownership of the copyright in those photographs. At the time of the application to join Mr Ramey (and the third, fourth and fifth defendants) it appeared, on the basis of evidence and discovery provided by the first and second defendants, that the photographs had been bought by Mr Sanchez (possibly from Neneta) on 19 November 2000. In this respect, three critical documents had been disclosed by the first and second defendants. One was a fax dated 19 November 2000 on the notepaper of Hello! Limited signed by Sue Neal, its picture editor, addressed to Ramey Photo Agency, reading as follows:

    Re: Michael Douglas wedding

    This agrees the fee of UK Sterling £125,000 for the exclusive rights to the above pictures for Hello! UK, HOLA Spain and Oh La France.

    It is agreed that you will invoice in US $ Dollars for us $188,000.

  10. The second was a letter dated 23 November 2000 from Neneta and merely addressed "Dear Sir/Madam", which stated:

    This is to confirm that this company sold exclusive UK rights in the photographs of the wedding of Michael Douglas and Catherine Zeta Jones to Hola, S.A., for use in Hello! magazine.

    The agreement was concluded on the telephone between this company and Eduardo Sanchez Junco, the proprietor of Hola, S.A. on Sunday 19 November 2000.

  11. The third was an invoice dated 28 November 2000 from Mr Ramey to Neneta for $75,200 stating "Agreed Fee special project with Marquessa De Verella".

  12. As of 2 May 2002, the evidence of the first and second defendants, already put before the court in November 2000, was that they "had no previous knowledge that these pictures were going to be taken until they were offered on the open market around the world on the Sunday" and that a price for them had only been agreed after they had been seen by Mr Sanchez that day: Douglas v. Hello! Ltd per Brooke LJ at para 35.

  13. Despite that evidence, the claimants' original pleaded case against the first and second defendants included the allegation that their obtaining of the photographs must have been arranged in advance (para 17 of the particulars of claim). In this connection the claimants relied inter alia on particulars that the defendants had themselves tried to obtain the exclusive rights to cover the wedding, that the print deadline for issue 639 fell on the Sunday in question, and that special arrangements were made to fly the printed run of that issue from Spain to England.

  14. The causes of action pleaded against the original two defendants were as follows. First, it was alleged that they were in breach of an equitable duty of confidentiality, alternatively of a right of privacy, owed to or possessed by Mr Douglas and Miss Zeta-Jones. For these purposes reliance was placed on the private and confidential nature of the wedding ceremony and reception and the circumstances that access and photography were strictly controlled. It was said that each of the guests and service providers at the wedding owed express or implied duties to Mr Douglas and Miss Zeta-Jones to preserve the confidentiality of the events, in particular by not taking or disclosing photographs; and that in these circumstances any person taking unauthorised photographs would be subject to similar obligations and could only have done so wrongfully and unlawfully. It was against that background that the original defendants had "acquired, processed and published the photographs with actual knowledge, or by deliberately closing their eyes to the obvious fact .... that they were confidential and obtained in breach of the duties of confidentiality" owed to Mr Douglas and Miss Zeta-Jones (para 15). As for breach of their right to privacy, it was further pleaded that the photographs contained personal information about them which it was reasonable for them to regard as intimate or sensitive, and to whose taking or publication they had not consented.

  15. Secondly, the claimants, this time including the third claimant, alleged causes of action in the field of economic torts: namely the use of unlawful means to interfere with their rights and business, alternatively to conspire together with the purpose and intent of causing damage to them. These causes of action were premised on the exclusive publishing rights which the first two claimants had agreed to grant to the third claimant, and also on the unlawful means elsewhere alleged, such as breaches of the duty of confidentiality and also breaches of the Data Protection Act 1998 (the "DPA 1998").

  16. The alleged breaches of the DPA 1998 formed a third aspect of the claim against the first and second defendants. The claimants alleged that these defendants were and are data controllers of the photographs in that they determined that the photographs would be obtained and transmitted to them by the photographer; and that as such data controllers they were obliged to comply with the data protection principles of the Act and in particular the principles that such data should be processed fairly and lawfully and only with the consent of the data subject; but that they had not so complied. In this connection too the claimants relied on the allegations of breach of the duty of confidentiality.

  17. When on 2 May 2002 Jacob J gave permission, without notice, to join the third to sixth defendants, he also gave the claimants permission to amend their particulars of claim. So far as concerns this appeal, the amendments were not substantial. Whereas previously references to "the defendants" applied only to the first and second defendants, such references now applied, merely by virtue of the amendment to the title of the proceedings, to all six defendants. Mr Ramey's particular role, however, was addressed by an amendment to para 12 which built on the three documents referred to at paras 9-11 above. Thus the amendment pleaded that the photographs had been "commissioned" by the Marquesa and/or Neneta from Mr Ramey for a fee of not less than $75,200 and that the exclusive UK rights to them had been acquired by the first, second and/or third defendants on Sunday 19 November 2000 for a consideration of not less than £125,000. It was against that background that the already existing pleading now implicated Mr Ramey in the causes of action described above.

  18. Since that time further developments in the proceedings have led to the claimants' allegation that the letter dated 23 November 2000 from Neneta confirming that it had sold exclusive UK rights in the photographs to Mr Sanchez on 19 November 2000 was false and dishonestly procured by the first three defendants; and that in any event such developments add evidential support to the claimants' underlying allegation that all the defendants had conspired in advance of the wedding to procure the photographs for publication in Hello! These allegations have led to a separate substantial application by the claimants, advanced before the Vice-Chancellor immediately prior to the hearing of this appeal, that the defences of the first three defendants should be struck out. At the time of the hearing of this appeal, and this court's decision on it, the result of the application heard by the Vice-Chancellor was not known. We do not think that these developments, the significance of which at the time of our decision were in dispute and unresolved, can assist in the determination of this appeal.

    The without notice application to Jacob J

  19. The application to Jacob J was supported by the third witness statement of Mr Martin Kramer, a partner in the firm acting as the claimants' solicitors. In that statement Mr Kramer referred specifically to Mr Ramey's role, saying that he "appears to have been commissioned to take or otherwise obtain the unauthorised photographs". It also contained the following paragraph:

    The Claimants claim, inter alia, that the Defendants procured, instigated or otherwise participated in the obtaining and/or taking of the unauthorised photographs of the First and Second Claimants' wedding. The Defendants have failed to disclose the unauthorised photographs of the wedding which they received in whatever format they received them. In addition, they have failed to disclose any information as to the source of the photographs or any communication data accompanying their transmission which, as is apparent from the Defence, was, at least in part, by ISDN line.

  20. That reference to an ISDN line was to a passage in the defence of the first and second defendants which admitted that the photographs were digitally received on Hello! Limited's ISDN line at its London office for onward transmission to Hola SA in Spain.

  21. Mr Kramer added that the joinder of the third, fourth, fifth and sixth defendants would be highly likely to "yield crucial information in this respect which will be of considerable assistance to the Court in determining the issues in this action."

  22. On the application before Jacob J the significance of and discrepancies between the three documents referred to above were developed in submissions to him. For instance, the language of "special project" in Mr Ramey's invoice to Neneta is suggestive of prior planning; the direct fax from Sue Neal of Hello! Limited to Ramey Photo Agency is suggestive of direct dealing between the Hello! defendants and Mr Ramey; whereas the letter from Neneta seems to speak of separate dealings between Mr Ramey and Neneta and between Neneta and Hello!

  23. The basis of the application to Jacob J for service out of the jurisdiction against Mr Ramey was that the claimants' claims against him fell within either CPR 6.20(8) (so far as the allegations of tort including the claim for breach of statutory duty under the DPA 1998 are concerned) or CPR 6.20(15) (so far as the claim for equitable relief for breach of the duty of confidentiality is concerned). Those sub-rules provide that a claim form may be served out of the jurisdiction with the permission of the court if –

    (8)

    a claim is made in tort where

    (a)

    damage was sustained within the jurisdiction; or

    (b)

    the damage sustained resulted from an act committed within the jurisdiction.

    (15)

    a claim is made for restitution where the defendant's alleged liability arises out of acts committed within the jurisdiction.

    The analysis of Laddie J

  24. Laddie J proceeded on the basis that Mr Ramey's appeal to him involved reliance on only one ground (para 8) –

    namely that the claims against Mr Ramey are of insufficient weight to justify service out of the jurisdiction.
  25. In accordance with that direction to himself, the judge went on to consider by reference to each of the causes of action pleaded against Mr Ramey the submission that "there is no reasonable prospect of any of these claims succeeding" (para 16), or in other words that each of them was "bound to fail" (para 18). He concluded (at para 34) that –

    In the circumstances, no reasonable allegation of wrongdoing actionable here has been made against Mr Ramey and I will order that service on him will be set aside.
  26. It might at any rate in theory have been possible for alternative submissions to have been advanced before the judge that, even if causes of action with a reasonable prospect of success had been raised on the pleadings, the claimants nevertheless failed to bring them within the gateways of CPR 6.20. No such plea, however, appears to have been made, and accordingly there is nowhere in the judge's reserved judgment any reference to the provisions of CPR 6.20. Nor has any respondent's notice seeking to support the judge's judgment on alternative or additional grounds been served. The question on this appeal is therefore whether the judge's view of the claimants' dim prospects is correct. If there is a reasonable prospect of success on any of the claimants' claims (in the pre CPR terms of Seaconsar, if there is a serious issue to be tried in respect of them), then the claimants are entitled to permission to serve out in respect of that claim.

  27. The judge dealt with breach of confidence and invasion of the right to privacy together, and submissions on this appeal have done so as well. In his view there was no allegation against Mr Ramey of joint tortfeasance (in this respect he appears to have been prepared to deal with the equitable remedy for breach of the duty of confidentiality as though it was by analogy a tort). For these purposes he relied on Credit Lyonnais v. ECGD [1998] 1 Lloyd's Rep 19 for the proposition that (per Hobhouse LJ at 46) –

    Mere assistance, even knowing assistance, does not suffice to make the "secondary" party jointly liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort (my first category); or he must have joined in the common design pursuant to which the tort was committed (my third category).
  28. On that basis Laddie J concluded (at para 23) as follows:

    If paragraph 15 of the particulars of claim is to be read as an allegation of joint tortfeasance, it fails to plead any facts that would support it. The fact that Mr Ramey obtained photographs in New York which he passed to the first and second defendants, even if it was in the knowledge that they intended to publish them in this country, does not begin to raise a case of joint tortfeasance. As far as the particulars of claim is concerned, Mr Ramey was only interested in receiving his fee. He may have facilitated the allegedly wrongful actions of the first and second claimants [sc defendants] but that does not make him a joint tortfeasor.
  29. As for the claim under the DPA 1998, the issue taken on behalf of Mr Ramey was that he was not a data controller within the meaning of section 5(1)(b). Section 5 is concerned with the application of the Act, and provides:

    (1)

    Except as otherwise provided by or under section 54, this Act applies to a data controller in respect of any data only if –

    (a)

    the data controller is established in the United Kingdom and the data are processed in the context of that establishment, or

    (b)

    the data controller is established neither in the United Kingdom nor in any other EEA State but uses equipment in the United Kingdom for processing the data otherwise than for the purposes of transit through the United Kingdom.

  30. The judge asked himself whether Mr Ramey "uses" data processing equipment in the United Kingdom, and concluded that "no such claim has been or, so far as I am aware, could be made" against Mr Ramey.

  31. The judge did not deal expressly with the tort of wrongful interference with rights and business, but went directly on to deal with the allegation of conspiracy. He concluded that there was no plea of conspiracy with a predominant intent to injure. There is no appeal from that decision, although the claimants may in the future seek permission to amend their particulars of claim in that regard. As for unlawful means conspiracy, the judge did not deal separately with that: but it may be that he considered that it followed logically from his dismissal of the claimants' other claims that there remained nothing unlawful which could support the cause of action in conspiracy.

  32. It is necessary to consider whether the judge was right in these conclusions.

    Duty of confidentiality and the right to privacy

  33. There is no submission that English law does not recognise these causes of action, even if there is dispute as to the invocation of them in the present case. It was recognised in this court already in November 2000 that at any rate Mr Douglas and Miss Zeta-Jones had a "powerfully arguable case" to put under these headings. Nor, if there is a sufficiently arguable case that these claims embrace Mr Ramey as well, is it, in our view, any longer open to him here to question whether there is the necessary jurisdictional link with England. In any event, we are satisfied that there is a good arguable case that there would be: the essential act complained about which has invaded the rights of and harmed the claimants has been publication of the photographs, and this has occurred in England. This would suffice to establish jurisdiction within either of sub-rules 6.20(8) or 6.20(15): see, by analogy with the tort of libel, Berezovsky v. Michaels [2000] 1 WLR 1004, itself applying a rule derived from the tort of negligent mis-statement, see Cordoba Shipping Co Ltd v. National State Bank, Elizabeth, New Jersey (The Albaforth) [1984] 2 Lloyd's Rep 91. For these purposes it seems to us to matter not that there may well have been an earlier breach of the duty of confidentiality or invasion of the right of privacy at the time when the photographs were first taken in the Plaza Hotel in New York, nor that such earlier wrongs may have been governed by the law of the state of New York. We would add that there has been no argument on this appeal directed to an issue of importance in those authorities, namely whether England was a natural forum and, in Berezovsky, clearly the appropriate forum in which the case should be tried.

  34. The question which exercised the judge, however, and which has been the focus of attention on this appeal is whether there is any pleaded case that Mr Ramey was a party to these torts or equitable wrongs pleaded against the other defendants. (I mention in passing that Mr Tugendhat submitted that the equitable duty of confidentiality should properly be treated as a tort in its own right; but it is unnecessary to consider that submission.) The judge, as we have shown above, regarded the case against Mr Ramey to fall short of an allegation of joint tortfeasance. On behalf of Mr Ramey, Mr John Jarvis QC has sought to support the judge's view and has submitted that the issue is concluded in his favour by Credit Lyonnais v. ECGD and CBS Songs Ltd v. Amstrad Consumer Electronics Plc [1988] 1 AC 1013.

  35. In our judgment, however, the judge took too narrow a view of the case made against Mr Ramey. He concentrated exclusively on acts done in New York, and regarded it as critical that Mr Ramey was not "directly" involved in the publication of Hello! in this country. He therefore looked on his alleged role as being that of mere assistance, albeit knowing assistance, rather than of participation. We emphasise that this court is not concerned to forecast a result (based on the pleaded case) but only to say whether there is a reasonable prospect of success, or at the highest a good arguable case, of participation in the alleged breaches of confidence and invasion of privacy. On that issue it seems to us that the answer must be that there is. The pleaded case, as we understand it, is that Mr Ramey was commissioned by the other defendants, or at least some of them, in advance of the wedding, and with a view to publication in Hello!, to obtain unauthorised photographs and to transmit them to the proprietors of the magazine (para 12 of the particulars of claim). He, together with the other defendants, is said to have "acquired, processed and published" the photographs with knowledge that they were confidential and had been obtained in breach of duties of confidentiality (ibid para 15). It is alleged that the published photographs were, as he at any rate claimed, subject to his copyright (ibid para 12). It is alleged that he "wrongfully conspired" with the other defendants in carrying out the unlawful acts necessary to such publication (ibid para 32). The final price agreed with Mr Ramey for the photographs was a price for their publication, at least in the UK (see the fax signed by Sue Neal dated 19 November 2000). It was not a merely speculative purchase. What is alleged, and alleged in terms, is that he "conspired with" the other defendants, and, in effect, that he had joined, to quote the words of Hobhouse LJ in Credit Lyonnais v. ECGD at 46, "in the common design pursuant to which the tort was committed".

  36. We do not see why there is not a good arguable case that the author of a photograph is as much a joint tortfeasor responsible for its publication in breach of a duty of confidentiality or a right of privacy as an author of a written piece would be jointly liable with its publishers in a suit for libel. It may be that Mr Ramey is not himself the author of the photographs, for he apparently transmitted them from California, not New York: but if he arranged for them to be taken, we think that the same argument applies. Mr Jarvis submits that the tort of defamation is sui generis in this respect, because publication is the essence of the tort, and that no analogy exists in that respect with the present causes of action. The duty of confidentiality was broken and the right of privacy invaded when the photographs were taken, rather than at the time of publication. However, in our judgment it is well arguable that there is a further tort or breach of an equitable duty at the time of publication, whatever may have already occurred prior to publication.

  37. In any event, the decisions relied on by Mr Jarvis do not, for present purposes, suffice to render those pleadings ineffective. In Credit Lyonnais v. ECGD the claimant bank sought to tread a narrow line, in its allegations against Mr Pillai, between acts which were sufficient to implicate him in Mr Chong's fraud and yet could be said to have been done within the scope of his employment within the ECGD, and those which were so plainly part of a fraudulent scheme as to run the risk of falling outside the scope of his employment. In the result, they failed in that delicate attempt. As Hobhouse LJ said at 46:

    The case of the bank on the secondary liability of Mr Pillai therefore fails. Mr Pillai was liable as a joint tortfeasor with Mr Chong. But this liability did not arise from his mere acts of assistance such as authorizing the issue of the guarantees. It arose from his being party to a conspiracy with Mr Chong to defraud the bank and his participation in the acts of fraud done in furtherance of that common design.
  38. That was a decision following trial. It does not seem to us to be an adequate basis for denying to the claimants, prior to trial, a good arguable case that Mr Ramey's role was similar to that of Mr Pillai, that of a joint tortfeasor.

  39. As for CBS v. Amstrad, the claimants there alleged that the manufacturer and seller of hi-fi systems with facilities for recording from pre-recorded cassettes on to blank tapes was itself a joint infringer of the claimants' copyright together with members of the public using such facilities. At 1055F Lord Templeman said that –

    All these facilities are lawful although the recording device is capable of being used for unlawful purposes. Once a model is sold Amstrad have no control or interest in its use.

    At 1057B he stated, by way of contrast, that

    My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement. In the present case there was no common design.
  40. In the present case, however, the allegation is that from the beginning Mr Ramey agreed to a commission to obtain the photographs by unlawful means with a view to their unlawful publication; and that having obtained them he sold the right to publish them – at a price which no doubt reflected a value which was established by the very fact that they had been obtained in the manner and for the purpose alleged. As such the allegation is very arguably not akin to the lawful provision of lawful facilities but to participation in a common unlawful design.

  41. Mr Jarvis submits that the only possible wrongdoing was committed in New York, where the photographs were taken; and that there is evidence before the court in the form of the expert opinion of Mr Oisher, a New York attorney at law, whose statement has been introduced on behalf of Mr Ramey, that under New York law there is a privilege in favour of "newsworthy publications" which would cover the unauthorised wedding photographs, even if they were obtained by means of a trespass or other such wrongs. In our judgment, however, this submission is again founded on the premise, which it seems to us is properly in dispute, that the only relevant acts were carried out in New York. In any event the newsworthiness privilege only applies, as we understand Mr Oisher's evidence, to publication within the state of New York. If, as we consider to be well arguable, the claimants are entitled to rely on publication in England as the essence of their complaint, then there is a good case that New York law is irrelevant to the alleged causes of action – although it may remain relevant to support the illegality of any separate and prior wrongful acts complained of, such as trespass. Thus, there is a good case that the proper law of the tort (or of the right in restitution for breach of the duty of confidentiality) is in effect the law of the place of publication: see the Private International Law (Miscellaneous Provisions) Act 1995, section 11(1) and (2)(c) and Dicey & Morris on The Conflict of Laws, 13th ed, 2000, at 34R-001 (Rule 200(2)(c)) and 34-032/6.

  42. It may be that we have been assisted in this court by a certain refocus in the submissions made on behalf of the claimants, but we are unable in these circumstances to agree with the judge when he found that no sufficient allegation of joint tortfeasance had been raised against Mr Ramey in the particulars of claim. Mr Jarvis's submissions will no doubt be debated at trial, in the light of full evidence concerning these matters. In the meantime, however, we can see in his submissions no reason for denying to the claimants under the heading of these two claims a good arguable case fit for service out of the jurisdiction.

  43. Mr Jarvis submitted that it was clear from Mr Kramer's evidence before Jacob J that the application to join the third to sixth defendants had been in large part for the sake of disclosure, which he characterised as an illegitimate purpose. We would agree that unless the requisite Seaconsar tests for service out of the jurisdiction against a foreign resident are capable of being met, the fact that a claimant might find disclosure from an intended defendant useful for the purpose of advancing his claims against existing defendants is by the way (although the significance of such potential disclosure in a case where the claimant relies on CPR 6.20(3) – "necessary or proper party" – has not had to be considered on this appeal). Where, however, the Seaconsar tests have been met, the fact that the claimant regards disclosure from the intended defendant as potentially useful cannot unmake the validity of his application for service out.

  44. Finally, Mr Jarvis submitted that, whatever might be said about other aspects of these claims, at any rate the third claimant could have no good cause of action under them against Mr Ramey, since it was not their privacy or confidentiality that was in question. He disparaged the amended plea in para 30 of the particulars of claim to the effect that under the agreement between Mr Douglas and Miss Zeta-Jones and OK! the former had "partially assigned" to the third claimant the benefit of the duties of confidence owed to themselves. However, this matter was fully argued (albeit on a without notice application) before Jacob J and not separately covered by Laddie J. Again there is no respondent's notice. There has been no application by the third, fourth and fifth defendants to set aside service out of this claim. In our judgment, where a third party, here the third claimant, shares by contract, and in return for very large payments, in the exclusivity of rights of confidentiality or privacy possessed by the owners of those rights, it is well arguable that that third party may likewise share in the vindication of those rights. Nothing was said by this court in its judgment in December 2000, remitting the claimants to their monetary claims, to suggest that the third claimant's case was not properly arguable.

    Breach of statutory duty under the DPA 1998

  45. In the event, the issue under this heading turned out to be a narrow one. Under section 5(1)(b) (see under para 29 above) the DPA 1998 only applies to a data controller who, although not established in the UK (nor in any other EEA State) "uses equipment in the United Kingdom for processing the data otherwise than for the purposes of transit through the United Kingdom". Mr Tugendhat's submission is that Mr Ramey is such a user of Hello! Limited's equipment in the UK because he transmitted the photographs in digital form to London by means of Hello! Limited's ISDN line. He submits that such use is analogous to the transmission of a fax, which also uses the addressee's equipment, and is unlike the mere posting of an e-mail, the choice to receive and download which remains with the addressee. Such transmission is not merely "for the purposes of transit through the United Kingdom", since that provision only applies to the incidental location of the transmitting equipment, as distinct from the location of the addressee's equipment. Only such a regime would protect the subject of the data from misuse of such data by means of data processing equipment based in this country.

  46. Mr Jarvis, on the other hand, submits that it is only the recipient in this country who "uses" data processing equipment in the UK for the purposes of the Act: otherwise the Act would seek to apply itself to people all over the world. In any event, Hello! Limited immediately sent on the photographs to Hola SA, so that any use of equipment in the UK was not "otherwise than for the purposes of transit through the United Kingdom". Laddie J thought that the claimants had simply failed to invoke the application of the Act, and in any event could not do so.

  47. We do not agree. Although section 5(1)(b) is not invoked in the particulars of claim in terms, the cause of action for breach of statutory duty under the Act is plainly invoked, and that raises the issue of the Act's scope and applicability. There is prima facie evidence, on the first and second defendants' own admission, that transmission to London was by means of Hello! Limited's ISDN line. As for the argument on section 5(1)(b), this is a valid question of construction, which to some extent may be fact sensitive as the analogy of fax transmission suggests. It seems to us that there is a good arguable claim here, which in any event is due for imminent trial.

    Interference with rights and business and unlawful means conspiracy

  48. In the circumstances it is unnecessary to say much about these economic tort claims. They are premised on other unlawful means, such as the other causes of action previously considered but which may in this context also arguably include illegality under the law of the state of New York, for instance trespass. In the light of what we have said earlier in this judgment, there is a good arguable case to be made in respect of these causes of action as well.

    Conclusion

  49. The claimants' appeal was therefore allowed.


Representations

Michael Tugendhat QC and David Sherbourne (instructed by Messrs Theodore Goddard) for the Claimants / Appellants

John Jarvis QC and Jonathan Nash (instructed by Messrs Reed Smith) for the 6th Defendant/Respondent

James Price QC and Giles Fernando (instructed by Messrs Charles Russell) for the 1st, 2nd & 3rd Defendants / Interveners


all rights reserved