Douglas & Ors v Hello! Ltd.& Ors

Factual and Procedural Background

On 18 November 2000, the Plaintiff and Co-Plaintiff, internationally famous film and television stars, were married in a private and confidential ceremony and reception held at a hotel in The City. They had arranged for exclusive authorized photographs to be taken solely for publication in a weekly celebrity magazine published by Company A. Despite these arrangements, unauthorized photographs were clandestinely taken and transmitted digitally to a rival publication owned by Company B, which published these images in a "spoiler" issue on the day of the wedding.

The Plaintiffs initially obtained an interim injunction to prevent the rival publication from using the unauthorized photographs, but this injunction was later discharged on appeal on the basis that damages would be an adequate remedy. Subsequently, the rival publication issued the photographs in a printed issue published in The State.

The Plaintiffs commenced proceedings alleging breach of confidentiality, invasion of privacy, economic torts, and breach of the Data Protection Act 1998 against multiple defendants including Company B and others involved in the acquisition and publication of the photographs. The trial was pending, and this appeal concerned a procedural question of whether the Plaintiffs were entitled to join an additional defendant, a photographer residing in The State, as a sixth defendant. The photographer challenged the court's jurisdiction, arguing that there was no good arguable case against him to justify service out of jurisdiction.

The photographer was joined without notice by order of a High Court judge and served in The State. He applied to set aside service and dismiss the action against him, which was initially refused by a Deputy Master but allowed on appeal by a High Court judge. The Plaintiffs appealed to this court, which allowed the appeal and reserved reasons, now provided in this judgment.

Legal Issues Presented

1. Whether the Plaintiffs had a good arguable case against the sixth defendant, the photographer, sufficient to justify service of proceedings out of the jurisdiction under CPR 6.20.
2. Whether the claims pleaded against the sixth defendant, including breach of confidentiality, invasion of privacy, breach of statutory duty under the Data Protection Act 1998, economic torts, and conspiracy, were of sufficient weight to establish jurisdiction.
3. Whether the sixth defendant could be considered a joint tortfeasor or participant in the alleged unlawful acts justifying his joinder in the proceedings.

Arguments of the Parties

Appellants' Arguments

• The Plaintiffs argued there was a "powerfully arguable case" that the sixth defendant participated in breaches of confidentiality and invasion of privacy by commissioning and transmitting unauthorized photographs with knowledge of their confidential nature.
• They contended the sixth defendant was a joint tortfeasor, having conspired with other defendants to obtain and publish the photographs unlawfully, thus justifying service out of jurisdiction.
• Regarding the Data Protection Act 1998, the Plaintiffs submitted that the sixth defendant used equipment in the jurisdiction (the rival publisher's ISDN line) for processing the data, bringing him within the Act's scope.
• The Plaintiffs maintained that economic tort claims and conspiracy claims also had a good arguable case, supporting jurisdiction.
• They further argued that the third claimant, Company A, had a good cause of action by contractual assignment of confidentiality rights, allowing claims against the sixth defendant.

Respondent's Arguments

• The sixth defendant contended that the claims against him were of insufficient weight to justify service out of jurisdiction, and that no reasonable prospect of success existed on the pleadings.
• He argued that mere assistance or knowing assistance did not amount to joint tortfeasance without conspiracy or procurement of the tortious acts.
• On the Data Protection Act, the sixth defendant claimed he was not a data controller using equipment in the UK other than for transit purposes, thus outside the Act's scope.
• He relied on expert evidence that under New York law, newsworthiness privilege would cover the unauthorized photographs, and that the only relevant acts occurred outside England.
• The sixth defendant submitted that the tort of defamation was sui generis and not analogous to the present claims, and that the judge's dismissal of joint tortfeasance was correct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered whether the claims against the sixth defendant, the photographer, presented a good arguable case sufficient to justify service out of jurisdiction under CPR 6.20. It acknowledged the established recognition of privacy and breach of confidence claims absent a pre-existing confidential relationship, as supported by recent authorities.

The court rejected the lower judge's narrow focus on the sixth defendant's acts being limited to New York and his role as mere assistant. Instead, it found that the pleaded case alleged the sixth defendant was commissioned in advance to obtain unauthorized photographs specifically for publication in the jurisdiction, and that he conspired with other defendants to acquire, process, and publish the photographs with knowledge of their confidential nature.

The court analogized the role of the photographer in the breach of confidence and privacy claims to that of a joint tortfeasor, similar to authorship liability in defamation cases, and found a good arguable case that the sixth defendant participated in the breaches.

Regarding the Data Protection Act 1998 claim, the court accepted that transmission of photographs via the rival publisher's ISDN line in the jurisdiction could amount to "use" of equipment under the Act, supporting a good arguable claim against the sixth defendant.

On economic torts and conspiracy, the court found a good arguable case based on the pleaded allegations of unlawful means and concerted action by the defendants, including the sixth defendant.

The court also noted that the third claimant's contractual rights in confidentiality and privacy were properly pleaded and arguable against the sixth defendant.

The court emphasized that the jurisdictional question was to be decided on whether there was a serious issue to be tried, not on the ultimate merits, and that the sixth defendant would have further opportunities to contest the claims at trial.

Holding and Implications

DISPOSED OF: The Plaintiffs' appeal was allowed, and the order setting aside service on the sixth defendant was overturned. Permission was granted to serve the sixth defendant out of the jurisdiction.

The direct effect of this decision is that the sixth defendant remains a party to the proceedings and will be subject to the court's jurisdiction for the imminent trial. No new precedent beyond the application of established principles for service out of jurisdiction and joint tortfeasance was set. The court carefully avoided prejudging the merits of the claims, leaving substantive issues to be resolved at trial.