Ewing v Times Newspapers Ltd

Factual and Procedural Background

The Appellant initiated claims against the Respondent arising from an article published on 11 February 2007 in various editions of a newspaper and its online platform. The article alleged corrupt practices involving a non-profit group, referred to as the Euston Trust, and implicated the Appellant in accepting secret payments to drop objections to development projects. The Appellant denied these allegations.

The Appellant has a longstanding history of vexatious litigation, having been declared a vexatious litigant by a Civil Proceedings Order in 1989, restricting his ability to initiate civil proceedings without leave of the High Court in England and Wales.

In June 2008, the Appellant sought leave to initiate proceedings in England and Wales relating to libel, breach of confidence, privacy, and data protection claims concerning the same article. The application was refused by Coulson J on grounds including limitation periods, lack of real prospects of success, and abuse of process.

Subsequently, the Appellant issued proceedings in Scotland on similar grounds. The Respondent applied for security for costs, which was granted by Lord Brodie, who imposed a sum of £15,000. The Appellant failed to provide this security, leading to the striking out of his claim in Scotland.

The Appellant then issued two writs in the Northern Ireland jurisdiction, claiming damages for libel, breach of confidence/privacy, data protection breaches, and harassment related to the same article. The Appellant has no connection to Northern Ireland and no evidence was presented that the article was read there by anyone familiar with him, other than the Appellant himself and a friend who accessed an online version in a public library.

The Respondent applied for summary dismissal of the Appellant’s claims under Order 18 Rule 19 RCJ on grounds including that the claims were frivolous, vexatious, and an abuse of process. The Queen's Bench Division judges granted these applications, leading to the current appeals.

Legal Issues Presented

1. Whether the Appellant’s claim for breach of privacy had any real prospect of success or was an abuse of the court’s process.
2. Whether the Appellant’s defamation claim was vexatious and an abuse of process, warranting summary dismissal.
3. Whether the judge hearing the summary dismissal application had jurisdiction to do so.
4. Whether there was any demonstrable bias in the conduct of the trial judge affecting the fairness of the proceedings.
5. Whether the Appellant had a reasonable expectation of privacy in respect of the information published in the article.
6. Whether the publication of a photograph alongside the article infringed the Appellant’s privacy rights.
7. Whether the Appellant’s failure to provide security for costs justified striking out the Scottish proceedings.

Arguments of the Parties

Appellant's Arguments

• The Appellant asserted a confidential relationship with one of the Respondent’s journalists based on prior communications and sought to establish a reasonable expectation of privacy in the material published.
• The Appellant contended that the trial judge was biased, citing alleged hostile remarks and failure to give reasons for awarding costs against him.
• The Appellant challenged the jurisdiction of the judge who granted summary dismissal.
• The Appellant argued that the refusal to allow amendment of his statement of claim infringed his Article 8 rights under the European Convention on Human Rights.
• The Appellant disputed the findings that his claims were vexatious and an abuse of process, maintaining that he had a sustainable case on privacy and defamation.
• He also opposed the imposition of security for costs and the striking out of his Scottish proceedings.

Respondent's Arguments

• The Respondent contended that the Appellant’s claims were vexatious, frivolous, and an abuse of process designed to circumvent previous adverse rulings and limitation periods in England and Wales.
• The Respondent argued that the Appellant had no reasonable expectation of privacy in respect of the published material, including the photograph.
• The Respondent maintained that the Appellant’s defamation claim lacked a real and substantial tort in Northern Ireland, where the proceedings were issued.
• The Respondent relied on the Appellant’s history of vexatious litigation and failure to pay costs as justification for the imposition of security for costs and the striking out of the Scottish proceedings.
• The Respondent asserted that the judge had jurisdiction and that no bias was demonstrated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rush v Fife Regional Council [1985] SLT 451	Justification for imposing security for costs on impecunious litigants to protect the court process and opposing parties.	Used to support the imposition of security for costs in Scottish proceedings despite the Appellant's impecuniosity.
Coppard v Customs and Excise Commissioners [2003] 2 WLR 618	Doctrine of de facto judge and jurisdiction of Lord Justices of Appeal sitting as first instance judges.	Confirmed the jurisdiction of the judge who granted summary dismissal.
McNamee and McDonnell's Application (leave stage) [2011] NICA 40	Test for granting leave to appeal: whether there is an arguable case with a reasonable prospect of success.	Applied to assess the Appellant's leave to appeal application.
Smith v Cosworth Casting Processes Ltd (Practice Note) [1997] 1 WLR 1538	Clarification of the test for leave to appeal emphasizing "realistic prospect" of success.	Referenced to support the standard applied in leave to appeal decisions.
Porter v Magill [2002] 2 AC 357	Test for apparent bias: whether a fair-minded and informed observer would conclude there was a real possibility of bias.	Applied to assess allegations of judicial bias by the Appellant.
Reimbold v Ambic Equipment Ltd [2002] 1 WLR 2409	Principles governing costs orders and the discretion of the court.	Used to reject the Appellant's claim that reasons for costs orders must be expressly given.
Campbell v MGN [2004] 2 AC 457	Principles on reasonable expectation of privacy and confidentiality; photographs and privacy rights.	Applied to assess the privacy claim and the significance of the photograph published.
Browne v Associated Newspapers [2008] 1 QB 103	Scope of privacy and private information under the law.	Referenced to support the wide scope of privacy rights considered.
Perry v UK [2004] 39 EHRR 3	Application of Article 8 ECHR to privacy rights.	Used to frame the privacy rights argument in the context of the European Convention on Human Rights.
Theakston v MGN [2022] EMLR 398	Judicial approach to covert photography and privacy.	Referenced regarding the intrusive nature of photographs and privacy protections.
McKennitt v Ash [2007] 3 WLR 194	Abuse of process where breach of confidence claims are used to circumvent defamation rules.	Applied to determine that the privacy claim was an abuse of process aimed at avoiding defamation limitations.
Jameel v Dow Jones & Co [2005] EWCA Civ 75	When minimal or no reputational damage in defamation claims may constitute abuse of process.	Applied to dismiss the defamation claim as vexatious and an abuse of process due to lack of substantial tort in the jurisdiction.
Lonzim plc v Sprague [2009] EWHC 2838 (QB)	Early dismissal of claims lacking substance to protect court resources.	Referenced to support dismissal of claims at interlocutory stage without need for full evidence.

Court's Reasoning and Analysis

The court carefully examined the Appellant’s claims in light of his history as a vexatious litigant and the substantive merits of the privacy and defamation allegations. It concluded that the Appellant failed to establish a reasonable expectation of privacy concerning the published material. The alleged confidential relationship with the journalist was limited to prior information unrelated to the article's subject matter, and no express or implied confidentiality was established for the later meeting where the material was obtained.

The court found the Appellant’s affidavit evidence on confidentiality to be untruthful and inconsistent with prior proceedings and communications, justifying summary dismissal under Order 18 Rule 19.

Regarding the photograph, the court held that a small, grainy image without particular private character did not amount to a breach of privacy, consistent with established case law.

The court further found that the privacy claim was an abuse of process, designed to circumvent the limitations and strictures applicable to defamation claims. The public interest in publication outweighed any minimal privacy interest.

On the defamation claim, the court applied the principle from Jameel v Dow Jones that where reputational damage is minimal or absent within the jurisdiction, continuing proceedings would be an abuse of process and disproportionate to the issues involved. The Appellant’s lack of connection to the jurisdiction and the timing of the proceedings supported this conclusion.

The court rejected allegations of judicial bias, noting the absence of evidence and emphasizing the judge’s careful consideration of the Appellant’s history without prejudicing his right to access justice.

The court also confirmed the jurisdiction of the judge who granted summary dismissal, referencing statutory provisions and relevant authority.

Holding and Implications

The court DISMISSED the Appellant’s appeals against the summary dismissal of both the breach of privacy and defamation claims.

The direct effect is that the Appellant’s claims are conclusively struck out in the Northern Ireland jurisdiction. No sustainable case was found on privacy or defamation grounds, and the proceedings were held to be vexatious and an abuse of process. No new legal precedent was established; the decision primarily reinforces existing principles concerning vexatious litigation, reasonable expectation of privacy, abuse of process, and jurisdictional considerations in defamation claims.