Joseph Alexander Mullen v Oliver Lyles [2025] EWHC 645 (KB)

[2025] EWHC 645 (KB)Case No KA-2024-000119IN THE HIGH COURT OF JUSTICEKING'S BENCH HIGH COURT APPEALSMEDIA AND COMMUNICATIONS LISTDate Monday, 7 th April 2025
Before
FORDHAM J
Between
JOSEPH ALEXANDER MULLENAppellantOLIVER LYLESRespondent
Jake Rudman and Chelsea Sparks (by Direct Access) for AppellantPaul Fox (of H2O Law Ltd) for Respondent
Hearing Hearing date: 18.2.25Draft judgment: 11.3.25Submissions: 17.3.25, 24.3.25 & 27.3.25
Approved Judgment
FORDHAM JThis Judgment was handed down remotely at 10am on 7.4.25 by circulation to the parties or their representatives by email and by release to the National Archives.

FORDHAM J:

[1]This is a case about the tort of misuse of private information (“MPI”). It is a case standing at the intersection of four things:(i) truth;(ii) criminal conduct;(iii) sex-life; and(iv) conduct in public. Many cases in this area of law have involved combinations of more than one of these four things. This is one of those cases which combines all four. I will need to outline later how each of the four things feature in MPI: see §§27-33 (truth), §§34-39 (criminal conduct), §45 (sex-life) and §46 (conduct in public).[2]The case comes before me as an appeal against an order of Deputy Master Marzec (“the Judge”), striking out the MPI claim brought by the Appellant (who I will call “the Claimant”). The Judge declined to strike out the Claimant’s linked defamation claim, and the attempts by the Respondent (who I will call “the Defendant”) to appeal that decision to this Court have failed. The Judge made an anonymity order backed by reporting restrictions – all of which continue – in relation to two persons who I will be calling “the Man” and “the Woman”.[3]The Judge struck out the MPI claim based on an analysis which focused on truth and criminal conduct. Mr Rudman and Ms Sparks for the Claimant challenge that decision, emphasising points about sex-life. Mr Fox for the Defendant defends the Judge’s strike-out order but does not support the Judge’s analysis. He introduces points about conduct in public. This is the pre-trial stage of the claims. The Judge set out, in detail, the approach to granting a strike-out (CPR 3.4) or summary judgment (CPR 24). It is common ground that she did so correctly and comprehensively. Counsel agree, for the purposes of this appeal, that it comes down to this: whether, on the Claimant’s factual case put at its highest, the MPI claim is bound to fail. The Judge was not making findings of fact on the evidence. Nor am I. That would be for a trial.

The Communications (P1 to P3)

[4]At the heart of these proceedings are three alleged communications. These are also called “publications” for the purposes of the defamation claim. The first communication (“P1”) was a WhatsApp message (15.11.22) from the Defendant to a WhatsApp group called Interstellar HQ. As well as the Claimant and the Defendant, the Claimant’s business associate Mr Meape was in the WhatsApp group Interstellar HQ. The Claimant’s particulars of claim say that P1 communicated that the Claimant forcefully sexually assaulted the Woman at Houghton Festival 2022, by forcing the Woman’s hand down the Claimant’s trousers and forcing her to hold his penis, against her will in front of her partner, the Man. The appeal bundle includes a screenshot of P1. The Woman and the Man are identified by their first names within it. It refers to “the 4 people that witnessed your behaviour”. The second alleged communication (“P2”) was an Instagram message from the Defendant, and the third (“P3”) was an Instagram voice call involving the Defendant. Both were on the same date (26.1.23) and both involved another person called Ms Lewis. Ms Lewis was another business associate of the Claimant. Each is said in the particulars of claim to have communicated that the Claimant sexually assaulted (in P3 “forcefully” sexually assaulted) the Woman and the Man at Houghton Festival. The identities of the Woman and the Man are said to have been given in both P2 and P3. The Defendant accepts that he sent P1, but says he only intended it to be read by the Claimant and not by Mr Meape. He denies P2. He says that in the call (P3) the information came from Ms Lewis.

The Parties’ Underlying Cases

[5]The essence of the Claimant’s case in the proceedings, as I see it, is as follows. The Claimant was an events organiser who developed a business relationship and friendship with the Defendant. Invited by the Defendant to Houghton Festival 2022 (11-14.8.22), he stayed in the Defendant’s cottage and mixed with the Defendant’s friends. What developed was a free sexual environment within that friendship group, where the Man and then the Woman initiated consensual kissing and touching with the Claimant. At three small, tented locations within the Festival site (on 13.8.22) – in the view of the rest of the group including the Defendant and some other Festival goers – there was kissing, including three-way kissing; the Man and the Claimant put their hands down each other’s trousers touching each other’s penises; the Claimant put the Woman’s hands down the Claimant’s trousers and then down the Man’s trousers; all of which was consensual. After the Festival weekend, friendly and sexualised messaging continued between the Claimant and the Woman; and with the Defendant. The business relationship between the Claimant and the Defendant was then ended by the Claimant (4.11.22). Angry messages followed from the Defendant to the Claimant. These were in turn followed by P1, and later by P2 and P3; the contents of all of which were untrue. There was no sexual assault. There was no force. There was no later incident in secluded woods, as the Defendant has since claimed. The Communications P1 to P3, and the Defendant’s explanation about supposedly receiving information from the Woman (13.11.22), are untruths from the Defendant. These explanations – about secluded woods – flatly contradict the contents of P1 itself, which says the alleged assault was witnessed by “4 people” who were “all totally shocked” and that the Defendant “calmed the situation at the time”. The three communications were targeted at business associates. The timing of P1 – immediately after the angry aftermath of the breakdown of the relationship – is no coincidence. The Defendant has made up his explanation about receiving new information form the Woman (13.11.22). That is the essence. The Claimant’s case is found in his particulars of claim (24.8.23) endorsed with his statement of truth; and in his signed witness statement (22.3.24) supported by documents including photos taken at the Festival, screenshots of messages, and Instagram voice-notes.[6]The essence of the Defendant’s case in the proceedings, as I see it, is as follows. The Claimant was an events organiser who developed a business relationship and friendship with the Defendant. Invited by the Defendant to Houghton Festival 2022 (11-14.8.22), the Claimant stayed in the Defendant’s cottage and mixed with the Defendant’s friends. P1 was intended for the Claimant only. Its contents are true. P2 was never sent. The information in P3 came from Ms Lewis, and it was true. The Defendant was aware at the Festival weekend that something had happened between the Claimant, the Woman and the Man. The Woman and the Man had appeared awkward and had told the Defendant that the Claimant was severely sexually confused. The Defendant did not press the Woman or the Man for details. The Defendant became aware of the nature and seriousness of what had actually happened at the Festival weekend only when told about it by the Woman on 13.11.22. This is what he was then told by her. There had been a three-way kiss between the Claimant, the Man and the Woman. Later, the Claimant had forcibly kissed the Woman without her consent. Then, in a dark secluded woods, with the Man present this had happened: the Claimant appeared and forcibly grabbed the Woman’s hand, placing it inside the Claimant’s trousers, making a lewd remark about his penis; he then grabbed the Man’s hand, putting the Man’s hand down the Claimant’s trousers. P1 was a warning to the Claimant, intended for him only. The discussion in P3 was by way of warning to Ms Lewis. Any communications were targeted in the sense of being only to one or two people. That is the essence. The Defendant’s case is found in his defence (9.11.23) endorsed with his statement of truth.

At a Trial

[7]At any trial in these proceedings, the Claimant and the Defendant would each be able to give oral evidence. They will then be able to be cross-examined, including on what they have said in documents accompanied by statements of truth. The Court will be able to consider all the evidence which has been adduced including any oral evidence, to make relevant findings of fact: about all the circumstances of the case; about the setting, the activities and events at Houghton Music Festival; about what happened on the evening of 13.8.22; about what happened next; and about the events and circumstances in and after 13.11.22. The Court will be able – so far as relevant to the issues – to elicit where the truth of this case lies. Everyone agrees that the Judge was to proceed, and I am to proceed, on the basis that §5 above (the Claimant’s underlying case) is what happened; and that §6 above (the Defendant’s underlying case) is not what happened.

MPI (Misuse of Private Information)

[8]MPI is a civil cause of action. It sounds in damages and can be the basis of an injunction. It is concerned with information and its use. The information (I) must be identified. It must be private (P). The use in question must be a misuse (M). The law is underpinned by human rights protection found in ECHR Article 8 (respect for private and family life) and Article 10 (freedom of expression).[9]The cases cited to me were McKennitt v Ash [2006] EWCA Civ 1714 [2008] QB 73; PQR v Quigley [2008] EWHC 1051 (QB); Khuja v Times Newspapers Ltd [2017] UKSC 49 [2019] AC 161; Richard v BBC [2018] EWHC 1837 (Ch) [2019] Ch 169; Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QB) [2021] 4 WLR 9; PJS v News Group Newspapers Ltd [2016] UKSC 26 [2016] AC 1081; ZXC v Bloomberg LP [2022] UKSC 5 [2022] AC 1158; and Pacini v Dow Jones [2024] EWHC 1709 (KB). I have asked Counsel to ensure that, in future, the law reports and not transcripts are supplied to the Court: see 2012 Practice Direction §6; King’s Bench Guide 2024 §9.110. Mr Rudman gave me four pages from Law of Privacy and the Media (pp.375, 377 and 394-395). Mr Fox gave me Halsbury’s Laws Vol.25 p.419 (on outraging public decency). As I told the advocates, I have accessed Gatley on Libel and Slander (13th ed & 1st supp).[10]Liability for MPI is determined applying a two-stage test. Stage 1 is whether the claimant objectively has a reasonable expectation of privacy in the relevant information. That turns on an objective assessment of all relevant Stage 1 circumstances. It asks what a reasonable person of ordinary sensibilities would feel if they were placed in the same position as the claimant and faced with the same publicity. See ZXC §§49-50. Stage 2 – if the answer to Stage 1 is yes – is whether that expectation is outweighed by the freedom of expression of the user of the information. That turns on an objective assessment of all relevant Stage 2 features. See ZXC §56.

The Particulars of Claim

[11]The pleading requirements for an MPI claim are identified in §8.1 of CPR 53PD (and see Gatley §28-043). In the present case, the particulars of claim which have been filed did not properly specify the matters required by §8.1. The Defendant did not make an issue of this. It was never a basis for strike-out. But the Judge pointed out the problem of failing to comply with §8.1 in her judgment. And Collins Rice J – who gave permission to appeal on the papers – agreed, warning that the Claimant’s advocates would need to deal with this at the hearing of the appeal. In the event, the Judge in her judgment, Collins Rice J, and Mr Fox in his skeleton argument, were all able to proceed by reference to what could be discerned about the substance of the MPI claim from the materials including a witness statement. But they should not have been in that position. Mr Rudman sought at the appeal hearing before me to suggest that both previous judges were making “unfair and semantic” criticisms. Sensing rightly that he would make no headway with that, he changed tack and handed up a new draft pleading. There should have been an illustrative redraft of MPI particulars, filed and served in good time, in fairness to the Defendant and to assist the Court. Coming so late, it necessitated a break in the hearing, so that Mr Fox could read it. Having done so, Mr Fox sensibly did not object to my then receiving it. I do not grant permission for the new pleading. It is an illustrative draft. In my judgment, it remains materially incomplete. For example, Mr Rudman confirmed that he was also relying on the point identified in the Claimant’s witness statement (§16 below) about “interactions at an event which I believed to be a safe space, with friends, engaging in consensual interactions”. There is work to be done, if the MPI claim is to go forward. But I was satisfied that I could proceed and deal with the appeal justly, on its legal merits.

The Respondent’s Notice

[12]Mr Fox’s skeleton argument – which came one clear working day before the appeal hearing – did three things. First, it contained no defence of the Judge’s strike-out reasoning in the judgment. Second, it identified a wholly new basis on which this Court was being asked to uphold the strike-out order. Third, it was accompanied by no further authorities – except the page from Halsbury – to reflect the new avenue of suggested analysis. The new basis for strike-out did not match the one in the Defendant’s strike-out application (§15 below). It did not match the key points made by Mr Fox to the Judge, recorded by her (§14 below). It did not match the Judge’s reasons (§§18-25 below). There should have been a Respondent’s Notice, filed and served in good time, in fairness to the Claimant and to assist the Court. But – again – I was satisfied that I could proceed and deal with this cross-appeal justly, on its legal merits.

The Appeal Bundle

[13]The Claimant’s appeal bundle contained key documents for the Court. At the hearing, Mr Fox handed up some uncontroversial, clearer colour photos. More challenging were Mr Rudman’s attempts to refer to documents – and contents of documents – not included in the bundle. I did not permit this. Mr Rudman was inviting the Court to receive what would have been a stream of further materials. This was not because of Mr Fox’s new basis for strike-out. It was because, on reflection, Mr Rudman wanted to make points on or arising from documents not before the Court. If missing materials were needed, there should have been a supplementary bundle, filed and served in good time. I was satisfied – again – that I could proceed and deal with the appeal and cross-appeal justly, on their legal merits.

The Key Points Made to the Judge

[14]In her judgment, the Judge identified the key points made to her by the advocates. Neither party’s skeleton argument took issue with that description. Nobody argued that their – or their opponent’s – key points had been misidentified or omitted by the Judge. I was not provided with any written arguments relied on before the Judge. What follows is from the Judge’s judgment, with one typo corrected. This is the Judge’s identification of Mr Fox’s key points in support of the MPI strike-out: Mr Fox submits … that [the] MPI claim is bound to fail. The information was imparted in the course of one private WhatsApp exchange and a private conversation. There is nothing to suggest that the information came into [the Defendant]’s possession in an intrusive way. On these bases, he says that [the Claimant] has no expectation of privacy in relation to the information. Mr Rudman pointed out that information relating to criminal conduct and convictions is sensitive personal data, and on that basis the Court should proceed on the basis that it is private in nature. He refers to the fact that information as to an individual’s sex life is high-order private information. He also refers to the fact that there is a dispute as to where the sexual encounter between [the Claimant] and [the Woman] took place and if, as [the Defendant] alleges, it took place in a private place with no witnesses, that fact militates in favour of the information being private and [the Claimant] having a reasonable expectation privacy in it.

The Defendant’s Basis for the Strike-Out

[15]The Defendant’s application to strike out the MPI claim (Form N244, 29.11.23) was on this single, express basis (inserting the paragraph from the pleaded defence): Such limited and “targeted” publication, three publications to two people, does not unjustifiably interfere with the Claimant's privacy. See Defence §18 [which says:
“It is denied that such limited ‘targeted’ publication, even if established at trial, would unjustifiably interfere with the Claimant’s right to respect for privacy under Article 8 of [Sch] 1 [to] the Human Rights Act 1998”]. As has been seen, the Judge’s summary of Mr Fox’s key points added a point about information not coming to the Defendant in an “intrusive way”
. I repeat: these points were not the basis on which the Judge struck-out the MPI claim; nor are they the basis on which Mr Fox sought in this appeal to defend the strike-out order.

The Claimant’s Basis of the MPI Claim

[16]I have set out the Judge’s summary of Mr Rudman’s key points. The original pleaded particulars of claim described to the contents of the communications (P1 to P3) and said under a heading MPI: Misuse of Private Information. [22] [T]he Publications included information which was private and engaged the Claimant’s right to respect for private and family life pursuant to Schedule 1, Article 8 of the Human Rights Act 1988 (‘HRA’) in that: [22.1] they constituted (false) information as to his private life and sexual affairs; [22.2] they included information including (false) accusations of criminal conduct by the Claimant, that, inter alia, the Claimant committed numerous criminal offences of a sexual nature. (together ‘The Private Information’). [23] The Private Information was false but nevertheless engages the Claimant’s rights pursuant to Article 8 of the HRA. [24] There was no public interest in the Publications, nor has the Defendant identified in correspondence any such public interest, nor any other purported countervailing interest in publication. allegations of criminal interactions at an event which I believed to be a safe space, with friends, engaging in consensual interactions.[17]The new draft pleading handed up to me by Mr Rudman at the appeal hearing added, in essence, these points:(1) as to [22.1], that the information included that the Claimant had forcefully sexually assaulted the Woman and the Man;(2) as to [23], that the Claimant had a reasonable expectation of privacy in the information because it is inherently private information about his sexual conduct and supposed criminal conduct including homosexual conduct;(3) that the Claimant’s reasonable expectation of privacy is supported by the facts that he works in the music industry and is a private tutor who works with children; and(4) that the Defendant “targeted” the information in a manner to cause maximum harm to the Claimant, having developed a vendetta.[18]I can now turn to the Judge’s analysis as to why she struck-out the MPI claim. I have already explained that the Judge’s analysis focused on truth and criminal conduct. I have also explained that Mr Fox, while he resists the appeal and supports the Judge’s strike-out order on a new basis, has not supported the Judge’s analysis.

A Principle about Truth

[19]In the relevant part of the judgment, the Judge began by describing “the legal principles” of MPI. She recorded that there had been “no dispute” about these between Mr Rudman and Mr Fox. She identified the legal framework as summarised in ZXC at §§43-62. After that introduction, the Judge then made a point about “the truth and falsity of the information”, describing an agreed and “well-established principle”. She said: The Court in [ZXC] noted that the case had proceeded on the basis of the defendant’s concession that the truth or falsity of the information was not relevant to the question of liability, that being a well-established principle of MPI. sued in circumstances where the truth of what they have to say is irrelevant. the legal process of prohibit[ing] people, on pain of sanction, from disclosing accurate information. These were further clear references to the “principle” to which she had been referred, that truth and falsity of the information was “not relevant” to MPI “liability”.[20]On this appeal – and in relation to the principle described by the Judge – Mr Rudman and Ms Sparks emphasised this passage from ZXC at §111: In the tort of defamation, the falsity of the information at issue is of central importance. However, the purpose of the tort of misuse of private information is not confined to protection of an individual from publication of information which is untrue, rather its purpose is to protect an individual’s private life in accordance with Article 8 of the ECHR, whether the information is true or false. The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry.

An Example about Criminal Conduct

[21]Next, the Judge identified the citation in ZXC at §53 of a textbook passage. Within it was an example of “involvement in current criminal activity”. That featured as a type of information said not to be normally regarded as giving rise to a reasonable expectation of privacy at Stage 1. The textbook was Gatley on Libel and Slander (12th ed 2013): see ZXC §52. The Judge said this (the underlining is mine): In dealing with the principles governing the first stage of the two-stage test, namely, whether the claimant had in all the circumstances a reasonable expectation of privacy, the Court stated ZXC at §53): Gatley also suggests that there are some types of information which will normally not be regarded as giving rise to a reasonable expectation of privacy so as not to be characterised as being private in character, namely: corporate information, a person’s physical location, involvement in current criminal activity, a person’s misperformance of a public role, information deriving from a hearing of a criminal case conducted in public, and the identity of an author (see further, footnotes 48 to 53). A similar list is set out and discussed in Carter-Ruck at paras 19.60-19.64.

Product of the Principle and the Example

[22]Next, the Judge put the principle (about truth) and the example (about criminal conduct) together. This fusion produced her analysis of why MPI could not be a viable claim. What she did was to examine and test the logic of truthfulness as an irrelevant inquiry (the principle) combined with involvement in current criminal activity as not normally satisfying Stage 1 (the example). This was an exercise in logical synthesis. Here, in substance, is where it led the Judge: i) involvement in current criminal activity attracts no reasonable expectation of privacy (the example); ii) truth or falsity of the information communicated is an irrelevant inquiry (the principle); iii) victims and witnesses must surely be able to communicate criminal activity, truthfully and in good faith, without the prospect of being successfully sued; iv) an MPI claim cannot therefore be brought to complain about a communication of involvement in criminal activity; v) otherwise, victims and witnesses would not be able to communicate criminal activity, truthfully and in good faith – they would face the prospect of being successfully sued.[23]As I have explained, the Judge’s analysis involved testing the logic of the principle and the example. She was not, as Mr Rudman and Ms Sparks have submitted: losing sight of the “principle”; or losing sight of the need to take the Claimant’s factual case at its highest; or making adverse factual findings; or acting on adverse factual assumptions; or introducing any internal contradiction. None of these are fair criticisms of the Judge. I reject them all. This was the Judge’s analysis: The information that was communicated in all three publications was indisputably to the effect that [the Claimant] had committed a sexual assault. If that information is true, it is difficult to see how [the Claimant] can reasonably expect that other people will not communicate it or that the law will help him to conceal it. The fact that a person has committed a serious criminal offence is not generally a matter he or she is entitled to keep private or prohibit others (including the victim or any witnesses) from disclosing. Moreover, the truth or falsity of that information is highly pertinent to whether it its dissemination is lawful. If [the Woman] has indeed been the victim of sexual assault, it would offend most people’s sense of what is right and would be an unjustifiable intrusion into her Article 10 rights, to prevent her informing other people what had happened to her. Similarly, if other people had witnessed an assault, they should be able to report what they had witnessed freely without fear of being sued in circumstances where the truth of what they have to say is irrelevant. These examples illustrate that in cases involving allegations of serious misconduct, truth, or at least good faith, is a highly relevant factor. In these examples, if the allegations made by [the Woman] or others are in fact false, [the Claimant] may well have a good claim in defamation, but he should not be permitted to use the legal process of prohibit people, on pain of sanction, from disclosing accurate information as to criminal misconduct.[24]As can be seen, the Judge thought that truth or falsity must be capable of being “highly pertinent”, in the context of disseminating information communicating criminal activity. She thought it must be capable of being “highly relevant”. She could not accept that victims and witnesses could be sued for describing criminal conduct, truthfully and in good faith. Pausing there, I interpose this. It would mean, if you saw someone at a bar or dancefloor going around sexually assaulting people – or spiking people’s drinks –you would not be able to warn others present. You would be committing a tort of MPI by giving such a warning. That cannot be the law of MPI. The force of the Judge’s concerns is unmistakeable. The key question, in my judgment, is whether the Judge had been given a legally sound starting point. That depends on points relating to the principle (truth) and the example (criminal conduct).[25]I have identified (at §23 above) the passage which was at the heart of the Judge’s analysis. The Judge made three further points in the judgment. (1): ZXC is about a reasonable expectation of privacy in respect of a pending criminal investigation by the police, which is distinct from freestanding allegations of criminal misconduct. On this point, see Sicri §76, describing “information about official suspicion”. (2): Particular considerations apply to information about criminal misconduct of an historical nature, and to data protection law and convictions. On this point, see NT1 v Google LLC [2018] EWHC 799 (QB), which the Judge cited. (3): The limited number of recipients of P1, P2 and P3 stands as an additional factor weighing against the MPI claim at Stages 1 and, if it arises, Stage 2. This point had been the sole basis of the strike-out application, but it was treated by the Judge merely as an additional factor. The Judge then made a fourth point when later refusing permission to appeal. It was linked to what she had said in the judgment about communicating information about criminal conduct “at least” in “good faith”. She added (4): The MPI claim could not succeed if, as was the case here, an allegation of criminal misconduct was “not clearly and obviously untrue”.

The Claimant’s Appeal

[26]I have already rejected a number of criticisms of the Judge, made on behalf of the Claimant in his appeal. The remaining essence of the appeal, as I see it, is that – on a proper understanding of the law of MPI relating to truth and criminal conduct – it was wrong for the Judge to conclude that the Claimant’s MPI claim, taking his factual case at its highest, was bound to fail. To analyse whether that is right, it is necessary for me to revisit the Judge’s principle (truth) and her example (criminal conduct). That will provide the answer to the key question: whether she was given the legally correct starting point for her evaluation of the logic of the law. As I will explain, I do not think she was.

Truth and MPI

[27]In the analysis of an MPI claim, Stage 1 is about whether information is private (PI). It is not about whether information is false or true. Take some examples. Information about a person’s physical or mental health is intrinsically private in nature. So is information about a person’s sex-life. So is information about self-harm. Or about distress from a bereavement. That private nature is not about whether the person does – or does not – have the physical or mental health condition being described; or what their sex-life is or is not; or whether they have or have not self-harmed; or whether they have or have not experienced the distress. Truth and falsity are ‘not the point’. The point is about whether this is – by its nature – information which is none of anybody else’s business; whether the individual is to be protected from intrusion; where the individual remains in control.[28]Because they are ‘not the point’, truth or falsity is “an irrelevant inquiry”; and judges should be chary of becoming “side-tracked” into it (McKennitt §88): see §20 above. The truth of the information communicated is not, in and of itself, an answer to an MPI claim. In ZXC it was true that there was a criminal investigation. That truth did not provide a defence. All of which means that MPI is not “confined” to protecting against the publication of untrue information (AXC §111): see §20 above. And so, MPI as a claim is “available even when the matters published are true” (Khuja §21). It works the other way round. The falsity of the information communicated is also not, in and of itself, an answer to an MPI claim. An argument to the contrary was the argument being rejected in McKennitt §§78-80, 85-87. In McKennitt the book was false about the property dispute. That falsity did not give “a complete defence” (§78). It did not mean the MPI claim “disappears” (§87). All of which means that the Judge was right to identify the “well-established principle” and the parties to this appeal are right to recognise it.[29]But it does not follow that this is a rigid exclusionary rule, in all respects and for all purposes. It is a “principle”. It permits of a nuanced approach. Especially at Stage 2, but also in my judgment at Stage 1. Take this description of how McKennitt was understood by Eady J in 2011, in a passage cited (with apparent approval) by the Supreme Court in PJS at §29, 32 (emphasis added): It is important always to remember that the modern law of privacy is not concerned solely with information or ‘secrets’: it is also concerned importantly with intrusion. . . [That] also largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant: see eg. McKennitt v Ash [2008] QB 73, paras 80, 87. There is a real difference between “can never be relevant” (rigid exclusion) and “can often be irrelevant” (Eady J). Another illustration is Gatley (13th ed) which speaks at 23-001 of MPI cases which involve the publication of “false” details regarding a claimant’s private life. The 2024 Gatley supplement adds a citation of a case which says that mass publication of a “false allegation” in an area of private life is likely to be MPI (ie. LJY v Persons Unknown [2017] EWHC 3230 (QB) [2018] EMLR 19 at §30). All the circumstances (Stage 1) and all the features (Stage 2) are relevant. They include whether the communication is “mass” communication. They include whether the information communicated is “false”. There is no rigid, all-embracing exclusionary rule.[30]At Stage 1, the court is to take account of “all the circumstances” (ZXC §50). Stage 1 is a “fact-specific enquiry” (ZXC §144). The “circumstances” can include “the nature of the activity in which the claimant was engaged”; and “the place at which it was happening” (ZXC §50). A “fact-specific enquiry” may have to determine a relevant, contested, “fact”. The relevant information may itself include a description – which may prove to be true or false – of “activity” or “place”. It can be appropriate for the court to decide the facts regarding a relevant circumstance, including where that circumstance is part of the information which is contained within a communication. Otherwise, the “fact-specific enquiry” would be undermined. A relevant circumstance stands to be misappreciated. A communication of false information cannot be permitted to prevent a true appreciation, still less dictate a false appreciation, of relevant circumstances. And it may be very difficult to ask what a reasonable person of ordinary sensibilities would feel, if they were “placed in the same position” as the claimant and faced with “the same” publicity (ZXC §49), without being able to recognise true circumstances (and avoid false ones).[31]Leaving all of that to one side, at Stage 2 there is a “fact-specific” exercise (Khuja §23). Stage 2 focuses on “the particular circumstances of the case” (ZXC §56). The passage in McKennitt about an “irrelevant inquiry” (§86) was describing Stage 1 (an enquiry “in deciding whether the information is entitled to be protected”). It was about whether information is private. It was not addressing the question of misuse. Indeed, the point was made in McKennitt that at Stage 2 “it may be relevant to decide the truth or falsity of the matters raised in support of an Article 10 claim to freedom of expression” (§87). In McKennitt itself the High Court “had to address” the issue of whether the allegations in the book were “untrue” and “misleading”, because at Stage 2 the book’s contents were “strongly relied on as demonstrating the public interest in revealing the true nature” of the claimant’s character (§74). The Judge in that case had made “findings about those allegations, because their falsity undermined the public interest defence” (§79). Stage 2 “could not be intelligently adjudicated upon without the judge deciding whether the claim was true or false” (§87). The claimant in that case “came to court to contest the truth of the book’s allegations”, albeit that this was not “an allegation of falsity … inherent in the basic claim” (§79). I add this example. In Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) [2008] EMLR 20 – the very first case cited in Gatley 23-006 fn.60 for “intimate details” of personal relationships – the communicated information included that the sex party “had a Nazi theme”. The court had to determine the correctness or incorrectness of that description – as a “principal factual dispute” in the case (§44) – in order to decide Stage 2 (§46).[32]So, there is a principle; but no rigid, all-embracing exclusionary rule. A problem in the present case is that the principle followed through into the Judge’s analysis as though it were rigid exclusionary rule, including at Stage 2. That materially influenced the analysis and led the Judge to the concerns which she expressed and on which the strike-out decision was then based.

Truth, Nub and Circumvention

[33]There is an important footnote to this discussion about truth in MPI. The cases recognise that, if it could be shown that a MPI claim is brought where both(a) “the nub of the case was a complaint of the falsity of the allegations” and(b) “that was done in order to avoid the rules of the tort of defamation”, then objections could be raised in terms of abuse of process. See McKennitt §79; Pacini at §§76-91. This is linked, in particular, to interim injunctions and circumventing the defamation rule against prior restraint: see Sicri §157; Pacini §77. In the present case, the Judge identified a “claim in defamation” as the answer where false allegations of criminal conduct are made. But she was not finding an “abuse of process”. She identified no circumvention. No abuse of process or circumvention argument was advanced or has been advanced by Mr Fox on this appeal.

Criminal Conduct and MPI

[34]A passage in Gatley (12th ed, 2013) – cited in ZXC at §53 –included “involvement in current criminal activity”. That was listed as a suggested example of a type of information which would not normally be regarded, at MPI Stage 1, as giving rise to a reasonable expectation of privacy. Alongside that, another passage in Gatley (12th ed) – cited in ZXC at §52 – listed suggested examples of types of information which would normally be regarded, at MPI Stage 1, as giving rise to a reasonable expectation of privacy. They included “involvement in crime as a victim or a witness”; and also “past involvement in criminal behaviour”.[35]The decision in ZXC did not turn on endorsing “involvement in current criminal activity” as a type of information which would not normally be regarded as giving rise to a reasonable expectation of privacy. The new edition of Gatley (13th ed, 2022) –updated in the light of ZXC itself (see 13th ed. p.[ix]) – no longer listed “involvement in current criminal activity” in the equivalent passage (at 23-006). Instead, “involvement in criminal activity” is now listed among the examples which would normally be regarded as giving rise to a reasonable expectation of privacy (§23-006 fn.72). The text (within fn.72 of 23-006) goes on to identify two schools of thought. One is that “the criminality of impugned behaviour provides a public interest justification for denying [an MPI] claim”. The other is that “for reasons of public policy criminal behaviour is not to be understood as ‘private’ at the first stage of the analysis”. The discussion of ZXC, focusing on the lower court judgments in ZXC, says that “direct allegations of criminality would not – or would not usually – generate a reasonable expectation of privacy”. There is also reference, in the context of “matters relating to personal and family relationships” (fn.59), to instances of “manifest criminality” (citing the case BUQ v HRE [2012] EWHC 774 (QB) §61). Then at 23-008 the editors describe “the proper approach to be taken towards the disclosure of information on a person’s involvement in crime” as “one of the most difficult questions with which the courts have been presented in recent times”. On one hand, they say, “the contravention of social norms that is reflected in such conduct” may make it “public”. On the other hand, they are, there is a relevant “reputational dimension”. The rewritten paragraphs in the Gatley first supplement (31.7.24) are along essentially similar lines.[36]Three key points can be made. First, it is difficult to generalise about MPI claims based on information regarding criminal conduct. That includes in identifying whether public policy reasons why such a claim may fail belong to Stage 1 or Stage 2. Secondly, cases of “current” involvement in criminal activity (ie. communicated contemporaneously), and cases about involvement of a victim or witness, are cases with distinctive features. Thirdly, MPI cases about information regarding criminal conduct compellingly illustrate why there can be no rigid exclusion of an enquiry about truth or falsity of information. Take the two schools of thought described in Gatley. The “public interest justification” and the “reasons of public policy” presuppose the truth of the information about the individual’s supposed criminal conduct. In Mosley, arguments were advanced that the sexual activities described in the newspaper story involved criminal offending. In that case, the Court addressed whether there was – or was not – any crime. The Court explained why, on the evidence, there was no question of a sexual offence being committed; nor of extreme and dangerous sado-masochistic activity; nor of victimisation or corruption of very young people: see Mosley at §§113-116. Suppose – like the alleged Nazi theme – alleged criminality had featured within the published story. The Court would surely again have been considering the truth or falsity of information; but here, as to criminality. It cannot be the case that falsely asserting criminal conduct in a communication means an MPI claim then “disappears”: cf. McKennitt §87. Communicating information about a crime may or may not be MPI. I was shown no case or authority which says that truth or falsity can never be relevant in the case of a communication of information about criminal conduct.[37]All of this leads to a further consideration, emphasised by Mr Rudman and Ms Sparks. It concerns the basis on which a person is communicating that an individual has engaged in criminal conduct or other misconduct. This is especially important in cases of widespread dissemination of information. There are passages in ZXC which say that Article 8 cannot be relied on to complain about a loss of reputation which is the foreseeable consequence of “one’s own actions, such as, for example, the commission of a criminal offence” (§119); and that a person “actually convicted of a criminal offence … cannot complain of the foreseeable consequence” (§122). It is then said in ZXC that the same could be true for “misconduct” which has been “established after authoritative findings” (§123). There is then an example – where the individual has not been “convicted” and where there has been no “authoritative finding” – involving a televised siege (see ZXC §123; also, Sicri §86): we do not consider that misconduct is confined to a finding at the end of a criminal or other authoritative process. For instance, other circumstances can extend to the example given by [Nicklin J], of “an armed bank robber who held hostage a number of customers and employees in a televised three-day siege” whom he considered could hardly claim a reasonable expectation of privacy when s/he surrendered and was arrested. In Kinloch v HM Advocate [2012] UKSC 62 [2013] 2 AC 93 the court held [at §§19-21] that the conduct of a person who carries a bag of criminal monies in a public place, open to public view, is “not an aspect of his private life that he was entitled to keep private”. It was an occasion “when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy” … In In Re JR38 [2015] UKSC 42 [2016] AC 131, the court held that taking part in a street riot was not an activity that constituted an aspect of private life that engaged the protection of Article 8, although it concerned a child.[38]The ZXC televised siege, the Kinloch bag of criminal monies and the JR38 public riot have all been identified in the case-law as paradigm examples where criminal conduct can attract no Stage 1 reasonable expectation of privacy. The point is that they are striking examples. They are situations of paraded criminality. Striking examples would not be needed if the same were true of all communications of all information about all observed criminal conduct. But still less where the information communicated is false. Interestingly, in the Kinloch example the Supreme Court had referred to the criminal nature of the conduct, adding “if that is what it was found to be” (Kinloch §21, cited in JR38 §§90, 111). That reinforces that there is no rigid exclusion, making truth or falsity irrelevant, in the case of a communicated information about criminal conduct.[39]All of which supports a nuanced approach to criminal conduct, especially when linked to questions of truth and falsity. A problem in the present case is that the Judge started from a superseded textbook example, without the benefit of the updated Gatley commentary and ZXC discussion as a whole and combined with a rigid exclusionary rule about truth and falsity, to arrive at a generalised adverse conclusion.

Discussion I: The Appeal

[40]I have concluded that the Judge was drawn into material legal error in her analysis on truth and criminal conduct, which stood as the basis for her strike-out decision. I have reached that conclusion, in light of my consideration above of truth and criminal conduct as features within the law of MPI, and for these reasons: i) First, the Judge’s analysis was in my judgment premised on there being a rigid exclusion of any enquiry as to truth or falsity. The Judge thought, in a case about criminal conduct, that “truth or falsity” could be “highly pertinent”. She thought, in a case about criminal conduct, that “truth, or at least good faith” could be “highly relevant”. But the answer is that there is no rigid exclusion. Permitting the present MPI claim to proceed to trial does not mean any person who “witnessed an assault” can be “sued in circumstances where the truth of what they have to say is irrelevant”. It does not mean a “use [of] the legal process” prohibiting any defendant “from disclosing accurate information as to criminal misconduct”. There is no rigid exclusionary rule. There is a fact-specific Stage 1 inquiry; and, if reached, a fact-specific Stage 2 inquiry. In fairness to the Judge, I add this. It is unsurprising that she saw the “general principle” as a rigid exclusionary rule. Neither Mr Rudman nor Mr Fox were pointing to any nuanced qualification, including in a case about criminal conduct. They remained very reluctant on this appeal to acknowledge such a qualification. Mr Rudman eventually identified truth or falsity as relevant within Stage 2. Mr Fox maintained that truth or falsity was relevant only when quantifying damages. The Judge was not shown the passages in McKennitt; nor an illustration like Mosley; nor the cases and fuller commentary about criminal conduct. All of which could have addressed her understandable concerns about Article 10 rights and victims of sexual assault. ii) Secondly, the Judge’s analysis in my judgment entailed a generalised conclusion about communicated information describing criminal conduct. This was grounded in a textbook example about criminal conduct (“involvement in current criminal activity”) and concerns about victims and witnesses of crime. It distinguished criminal misconduct of an historical nature and data protection law concerning convictions (Additional Point (2)). The Judge was not aware – and in fairness to her was evidently not made aware – of several things. One was that there was the superseding and fuller textbook commentary. Another was that there were distinct textbook examples about “involvement in crime as a victim or a witness”; and about “past involvement in criminal behaviour”. Then there was textbook discussion, including as to public interest and public policy, with the different schools of thought, and at the two different Stages of MPI. Then there was the wider discussion in ZXC itself. Next, there were the examples from ZXC and Sicri about televised sieges, public displays of bags of criminal monies, and public riots. Finally, there were the indications, from all of these and from cases like Mosley, about the particular inappropriateness of any rigid exclusionary rule regarding truth and falsity, in the context of communicated information about criminal conduct. iii) Thirdly, in the context of a rigid exclusion (truth) and a generalised conclusion (criminal conduct), the Judge was taken away from a fact-specific assessment of the present case, taking the Claimant’s factual case at its highest. The Judge’s cited textbook example was about “current” criminal activity. But this was not said – by the Judge or by Mr Fox for the Defendant – to be a “current” criminal activity case. Gatley (12th ed) had given, as an example normally regarded at Stage 1 as giving rise to a reasonable expectation of privacy (ZXC §52):
“past involvement in criminal behaviour”
. The events at Houghton Music Festival were on 13.8.22. The communications were 15.11.22 (P1) and 26.1.23 (P2 and P3). The Judge focused in her analysis on victims and witnesses able to report crime. But this was not said to be a case a person being involved as a victim or witness, and Gatley had identified such those as distinctive. Nor, when taking the Claimant’s case at its highest, is this a case about reporting which is truthful or in good faith. Even taking the Judge’s Additional Point (4) – and even if that were the test – on the Claimant’s case taken at its highest, this would be communicating a crime where the description was “clearly and obviously untrue”. iv) Fourthly, the Judge was concerned the claims about allegations which “are in fact false”, where the appropriate claim is “in defamation”, and MPI “should not be permitted”. But this is addressed by the principle about the nub of the claim and circumvention (§33 above). That was and is not said to be applicable here.[41]What follows, in my judgment, is that Mr Rudman and Ms Sparks are right to say that the Judge’s reasoning cannot stand as a basis to strike-out the MPI claim. They were right to recognise – as they did in respect of Stage 2 at least – that questions of truth and falsity of information may be relevant. They were also right that – even beyond cases about historic crimes – a communication about criminal conduct could, depending on the circumstances and features of the case, be the subject of a viable claim for MPI. It follows too that Mr Fox was right not to defend the Judge’s analysis as a basis for striking-out the MPI claim. It is right to record that my analysis rejects many – indeed most – of the criticisms of the Judge made by Mr Rudman and Ms Sparks, especially the points they had set out in writing. But Collins Rice J had indicated that the Court would look at the substance of the case, not simply its presentation in the grounds of appeal. And there is no prejudice at all to the Defendant. Especially given that Mr Fox had taken the decision not to support the Judge’s analysis.

The Defendant’s Cross-Appeal

[42]I turn to what I have called the cross-appeal. Mr Fox says that – taken at its factual highest – the Claimant’s MPI claim is bound to fail, on a basis other than that identified by the Judge. It involves taking, as a helpful template for MPI Stage 1, the “Murray factors” (see ZXC §50). That produces the following picture.(1) The Claimant’s attributes include being in the business of an events organiser, which invites scrutiny to his conduct at events in that same sphere.(2) The nature of the Claimant’s activity involved sexual interactions with two other people; he was exercising no control over dissemination of his sex-life and sexual orientation as private information; he was positively flaunting his sexual interactions.(3) The places were crowded locations in public, with “15 or more people watching”; and perhaps “dozens”.(4) The intrusion in its nature and purpose involves no more than appropriate criticism by way of indignant warning (P1) and succinct allegations of sexual impropriety without intimate details (P2 and P3).(5) There was implied consent in this case, arising from the Claimant’s failure to control the information by controlling behaviour.(6) The effect on the Claimant is not about his sex-life, but only about an allegedly untrue reference to force. In the light of all of this, at Stage 2, the MPI claim would be bound to fail. This was communication to a tightly defined number of people (two). Moreover – even if there were no sexual assault – there was conduct outraging public decency which is itself a criminal offence.[43]The Judge did not strike-out the MPI claim on this basis. Nor was this a basis on which she was asked to do so. Nor am I going to do so. I will explain why.

Reference-Points

[44]I noted the assumption in Mr Fox’s approach. His Stage 1 analysis assumes a single reference-point for characterising the Claimant’s conduct, to decide the question of reasonable expectation of privacy in the relevant information. In fact, there are at least three possible reference-points. First, there is the Defendant’s communicated description of what happened (in P1 to P3): sexual assaults at the Festival. Second, there is the Defendant’s pleaded description of what happened: sexual assaults in secluded woods at the Festival. Third, there is the Claimant’s accepted description of what happened: consensual sexual interaction in small, tented areas at the Festival. Mr Fox’s approach takes, as a single reference-point, the third of these (Claimant’s accepted description). That leaves out sexual assaults (communicated description P1 to P3). It leaves out there being “four people who witnessed your behaviour” (communicated description P1). It also leaves out conduct in secluded woods (pleaded description). Mr Fox may prove to be correct that there is his single reference-point. But I have not found to be self-evident that this is the exclusively appropriate means for deriving reasonable expectation of privacy, in an exercise of considering all relevant circumstances. I was shown no case or commentary which answers the question. I think there is likely to be a link to the relevance of questions as to truth or falsity. The points that follow apply even if – which I prefer not to decide – Mr Fox’s assumption is correct.

Sex-Life and MPI

[45]As the Judge recorded (from Mr Rudman’s key points), an individual’s sex-life is high order private information. The Gatley examples of types of information which will normally be regarded as giving rise to a reasonable expectation of privacy included (see ZXC §52) – and still include (Gatley 23-006) – “the generality of personal … relationships” and “intimate details of personal relationships”; as well as “sexual orientation”. Dozens of cases about sex-life are footnoted by the editors. Mosley was a sex-life case, where the court considered both truth and criminality. It recognised that “people’s sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable” (Mosley §100; Gatley 23-006 fn 60). PQR was a sex-life case, where an MPI claim succeeded in respect of threatened communications describing “fictitious sexual activities” (§6).

Conduct in Public and MPI

[46]The “place” at which an activity was happening is one of the “Murray factors”, recognising relevant Stage 1 circumstances: ZXC §50. In Sicri, the places where the relevant events happened were private. There was a phone conversation and an arrest at the claimant’s home (§88(3)). The public/private distinction has undoubted significance. Thus, there was “nothing public” about an arrest of a pilot in an aircraft cockpit; whereas a passenger was “arrested in public, for conduct which took place in a public place, in the passenger compartment, in the presence of a number of others” (Sicri §90). There is not necessarily a bright-line distinction. What takes place in a public place may fall within the scope of private life (Khuja §58). There is a zone of interaction with others, even in a public context, which may fall within the scope of private life (ZXC §116). Familiar examples would be grief and distress leaving a funeral service; or a suicide attempt in a public place at night. There is intersectionality between truth, criminal conduct and conduct in public. In Sicri, the claimant “had not engaged in any criminal activity, let alone in public” (§88(2)). The ZXC televised siege, the Kinloch bag of criminal monies and the JR38 street riot were all examples of demonstrable criminal conduct publicly observable (§37 above). There is also intersectionality between sex-life and conduct in public. A “starting point” sees disclosure or publication of “purely private sexual encounters” as MPI, but “every case must be considered on its own particular facts” (PJS §32). “Intimate physical relations” can occur in “a range of places” including “a car in a secluded spot”; “all the … circumstances” need to be considered; but avoiding “acts … undertaken under the public gaze” and drawing “an “artificial line” (Theakston v MGN Ltd [2002] EWHC 137 (QB) [2002] EMLR 22 §§57-58, 63; a case where the line drawn is not supported by Gatley at 23-006 fn. 60). Sexual activity “in private” is “a prime candidate” for protection (BUQ §42). As it was put in Mosley, a court (in 2008) was “usually on safe ground in concluding that anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults” (Mosley §98; DFT v TFD [2010] EWHC 2335 (QB) §21: Gatley 23-006 fn.60). The phrase used was: “especially if”. It was not: “provided that”. Illumination may be derived from remembering that the Stage 1 question asks what a reasonable person of ordinary sensibilities would feel if they were placed in the same position as the claimant and faced with the same publicity (ZXC §49).

Discussion II: The Cross-Appeal

[47]I am unable to accept the submissions in support of the cross-appeal. There are, in my judgment, these insurmountable difficulties with Mr Fox’s suggested analysis: i) First, it is incomplete. It misses out circumstances which are relevant – or potentially relevant – and which arise on the Claimant’s factual case, taken at its highest. That this was a free sexual environment within a friendship group. That the Man and then the Woman initiated consensual kissing and touching. That sexual interactions were consensual. That the Defendant knew there was no sexual assault, and no force. That the Defendant fabricated a story of reported sexual assault. That he knew sexual assault was false. That he deliberately sent it to the Claimant’s known business associates. That he acted out of ill will following a business relationship break down. These are parts of the Claimant’s case, taken at its highest. At a trial, a judge would be conducting the fact-specific enquiry having heard the evidence. ii) Secondly, it is contentious. It takes the attribute of being an events organiser as a factor undermining reasonable expectation. It characterises the Claimant’s conduct as “flaunting”. It characterises “consent” as obviously implied. It takes that “consent” as applicable to sharing of information, including of sexual assault. It invites a pre-trial finding about “crowded” locations, and about “in public”, when there is room for calibration based on fully informed findings of fact after a trial hearing, having heard oral evidence. It speaks of “criticism” and “warning” and a lack of “intimate details”, when none of this would match the Claimant’s factual case taken at its highest. It characterises as “tightly defined” recipients who, on the Claimant’s case, were targeted business associates. Finally, it attempts a characterisation of a crime of “conduct outraging public decency” which begs more questions than it answers, rewrites the communicated information, and – on the Claimant’s case – would apply equally to the Man and the Woman who are at the same time being characterised by the Defendant as the victims of sexual assaults. iii) Thirdly, it presupposes a pre-trial public/private bright line. In relation to considerations concerning sex-life and conduct in public, Mr Fox is asking the Court to confidently predict the relevant public/private dividing line, being drawn without the benefit of a trial and findings on all the circumstances. Mr Fox accepts that he could not sustain his cross-appeal submissions if the alleged assault had taken place at, say, the Defendant’s house where the Claimant says some of the group of friends were sleeping during the period of the Festival. He also accepted that a sexual encounter in public but “behind a hedge” (as he put it) could be found to attract a reasonable expectation of privacy. I have not been persuaded, on the submissions made and authorities provided, that there is a reliable dividing line which leaves the MPI claim in this case – on the Claimant’s factual case taken at its highest – bound to fail.[48]All in all, I am quite sure that what this case needs is for the Stage 1 fact-specific inquiry to be undertaken in the light of the evidence and standing on the solid platform of findings of fact regarding relevant circumstances. The same is true of Stage 2, if it is reached. I am unable to say that – taken as its highest – the MPI claim is bound to fail. Mr Fox did not persuade me to the contrary on the cross-appeal, by his submissions about sex-life and conduct in public. And my conclusions are fortified by what I have said earlier in relation to the appeal, about truth and criminal conduct.

Conclusion

[49]The Claimant’s appeal succeeds. The Defendant’s cross-appeal fails. I will therefore reverse the Judge’s order striking out the Claimant’s MPI claim.

Next Steps

[50]The draft judgment circulated on 10 March 2025, for hand-down on 7 April 2025, contained this. I had already recorded, earlier in this judgment, that I considered the draft Amended Particulars of Claim handed up at the hearing to be materially incomplete for the purposes of §8.1 of CPR 53PD (Gatley §28-043). I added the following as my provisional impressions: there has been enough by way of pre-trial contestation; this case now cries out for a focused trial hearing; at trial, the Claimant and Defendant will be able each to give oral evidence and be cross-examined on what they have said in court documents endorsed with their statements of truth; it may be appropriate to direct a short pre-trial review. I gave deadlines for draft Amended Particulars of Claim and Defence; confirmation as to what existing applications were being pursued and what hearing was being sought (with what time estimate); draft orders; and brief submissions.

Order

[51]Having taken those steps, and in light of the parties responses, I can explain here what Order I made and the reasons for it. Very full submissions were made on both sides, but I think the position is straightforward. I will vary the Judge’s Order, to reverse the striking out of the MPI claim. The appropriate variation of the Judge’s costs order is, in my judgment, clear. The Judge saw the relevant proportions for costs purposes as follows: defamation claim 50%, MPI claim as 40% and data protection claim 10%. I will simply reverse the effect of the MPI 40%. The Defendant received 40% of his costs before the Judge, from total costs which the Judge summarily assessed. Instead, the Claimant will now receive 40% of his costs before the Judge, from total costs which the Judge summarily assessed. I cannot accept Mr Fox’s arguments for the costs order below to be left intact. On this appeal, costs must follow the event. I am unable to accept Mr Fox’s argument that the appeal was entirely due to the Claimant’s defective pleading. It was, instead, entirely due to the Defendant having sought and secured an MPI strike-out on its substantive merits, which the Defendant then chose to defend on appeal. The strike-out was groundless, and the costs are attributable to the Defendant’s litigation choices. On the other hand, I am unable to accept the arguments of Mr Rudman and Ms Sparks about indemnity costs, summary assessment and payment on account all fail. In the circumstances, the appeal costs call for a detailed assessment, absent agreement. Indemnity costs are not justified. As to payment on account, I am taking the same course as did the Judge. The costs are not to be paid until the conclusion of the proceedings “or further order”. As at present, the overall reckoning on enforced costs should be left to the end when the truth of this case has been exposed. That may change if interlocutory skirmishes continue to abound.[52]The Claimant has permission to amend the Particulars of Claim in the form of the draft dated 17 March 2025. The Defendant has permission to amend the Defence in the form of the draft dated 24 March 2025. I do not accept the arguments for the Claimant that new lines of defence should be excluded. There has been delay and default on both sides. Nor am I prepared to make separate costs orders at this stage. Costs relating to the amendments are reserved and can be considered when a court can see the case in the round. I am not prepared to defer the deadline for any Reply and am providing for that. I am directing that each party file and serve a position statement (maximum 5 pages) by 4pm on 14 April 2025 explaining the justification and proportionality of proceeding with further interlocutory hearings rather than a focused trial hearing at which the key facts can be established. I have noted that the Defendant’s representative has confirmed that the Man and the Woman will give evidence at trial. Given the current insistence of both parties on pursuit of applications with a further interlocutory hearing, I am directing a hearing fixed for 1.5 days, before a Master, at which the following can be considered (if pursued):(1) Defendant’s application 8.7.24 (disclosure);(2) Claimant’s application 7.8.24 (further information);(3) Claimant’s application 21.1.25 (striking out aspects of the Defence);(4) Defendant’s new application 24.3.25 (striking out aspects of the Claim). This case needs focus and discipline from the parties. My overall impressions remain the same as provisionally expressed when circulating the draft judgment (§50 above). There is no justification, in the circumstances, for a further High Court hearing at this stage. I am satisfied that the next hearing should be before a Master, where the further applications (if pursued) can be considered, and all directions made, including in relation to trial.