Tag Archives: Supreme Court

The celebrity threesome and a judicial foursome

Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.

Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?

Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”

Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.

Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.” 

 This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:

There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)

The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference? Continue reading

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Barkas case: Judicial anarchy on the village green

Was the Supreme Court right to overrule the leading village greens case of R (Beresford) v Sunderland City Council (2003) in its recent judgment in R (Barkas) v North Yorkshire County Council (2014; pdf)? There is a strong argument to suggest Lord Neuberger et al have overstepped the mark in declaring Beresford no longer good law – in a gross breach of the rules of judicial precedent on which our law relies. The result will be that it will be far more difficult from now on to have land designated as village greens, protecting it from development.

  The Supreme Court is supposed to accept earlier judgments of the same court, even if the current incumbents think they are wrong, unless there are very good reasons not to, such as a material change in circumstances or strong public interest. That allows for legal certainty, so people can act according to the known law, as examined and approved by the highest court in the land, rather than seek to rerun a similar case a few years later in the hope that the judicial dice might fall a different way. That is the principle that Neuberger et al have thrown to the four winds in disapproving Barkas.

   There are supposed to be limitations on the rare occasions when the Supreme Court can breach precedent and overrule itself. In particular the overruling must help to resolve the case before them. That was not so in Barkas. Lower courts and the Supreme Court itself had all resolved the case (rejecting the application to turn a piece of land in Whitby into a village green) by distinguishing it from Beresford – different facts, different law. There was no requirement to then go on to overrule Beresford – indeed the rule is that they should not go on to overrule the earlier case. But the Supreme Court Justices did so anyway.

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