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Sir Cliff Richard, OBE v BBC and Chief Constable of South Yorkshire Police [2018] EWHC 1837 (ChD)

Case date: 18/07/2018
Court: High Court
Area/s of law: Misuse of Private Information | Contribution claims
Barrister/s: Aidan Eardley

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Background

In August 2014 the BBC reported on a search of Sir Cliff Richard’s apartment in Sunningdale, Berkshire, carried out by South Yorkshire Police (‘SYP’). The reports disclosed that Sir Cliff was under investigation in relation to an allegation of sexual assault against a child in the 1980s. The BBC’s reporting was possible because SYP had confirmed that the investigation concerned Sir Cliff, had provided advance notice of the search, and had facilitated the BBC’s coverage on the day.

In May 2017, SYP reached a settlement with Sir Cliff, admitting liability and paying him £400,000 in respect of general and special damages. SYP have also made a payment on account of the costs for which they are liable in the sum of £300,000. There are mutual contribution claims between the BBC and SYP.

Sir Cliff’s claim against the BBC was for misuse of private information. There was also a claim under the Data Protection Act 1998 but it was accepted that this added nothing to the privacy claim.

This was the trial of liability and some damages issues.

Decision

Mann J found for the Claimant, awarding general damages of £190,000 and aggravated damages of £20,000. He held that the BBC and SYP were jointly responsible for £185,000 of these damages, with their share of responsibility being 65% and 35% respectively. Mann J also found that the broadcasts had caused the Claimant to incur certain financial losses and expenses. There will be a second trial to determine the remaining issues in relation to special damages and the sum of any contribution payments.

Reasons 

Reasonable expectation of privacy

Mann J’s starting point was that, in his view, a suspect generally has a reasonable expectation of privacy in relation to the police investigation of which s/he is the subject and this expectation generally endures even when there has been a search of their property. Although privacy may be lost where, e.g., the police disclose information about the investigation for operational reasons, the mere fact that information about the investigation has reached the media does not change its presumptively private status: [248]-[259].

Mann J then considered whether the circumstances in which the information had reached the BBC’s reporter, Dan Johnson, made a difference. Earlier in the judgment he had determined that Mr Johnson received information unofficially from someone in or associated with a police force and was aware that the information originated from Operation Yewtree. The judge held that Mr Johnson said this to SYP, along with further details, giving them the impression that he knew considerable amount of detail about the investigation. He gave the impression that he had a story he could publish and would or might do so.  SYP confirmed the story, offered further information and offered to alert Mr Johnson to the search, but they did so only because they were concerned to avoid a story being published at that point. They did not “volunteer” the information or offer it out of a desire to get publicity for the search [221].

Mann J considered that, in these circumstances, the expectation of privacy remained intact: “…nothing was different when Mr Johnson acquired more information from (or had it confirmed by) SYP. He was acquiring private information in circumstances which did not destroy the privacy. It was not disclosed for good operational reasons. It was disclosed because Mr Johnson had wrongfully exploited the previously acquired confidential information to manoeuvre SYP into its further disclosures, which SYP misguidedly made.” [260].

Balancing exercise

Mann J considered that Sir Cliff’s privacy right was a strong one, given the nature of the offence and the damage that could be done to him if the investigation were revealed [262]. He then considered the criteria identified in Axel Springer AG v Germany [2012] EMLR 15.

Although he recognised that an anonymised report of the search would have contributed to a debate of general public interest, Mann J considered that naming Sir Cliff added nothing of material value [281]-[282], [317]. He attached little weight to Sir Cliff’s status as a public figure and his prior conduct, given that the information did not concern an area of his private life over which he had “surrendered” control, and did not show him to have behaved inconsistently with his public position [283]-[287]. He accepted that the BBC’s reporting was accurate but was critical of the method by which Mr Johnson had secured information from SYP [290]-[292] and for not having given Sir Cliff’s representatives a sufficient opportunity to object to the proposed broadcast [293]-[297].  He was also critical of the “breathless sensationalism” of the BBC’s reporting [300]-[302], but would have found for Sir Cliff even if the BBC had broadcast only a lower key report [318]. He considered the extent to which the BBC had considered and complied with its own editorial guidelines, but ultimately took an objective approach to the balancing exercise [312].

General damages

Mann J rejected the BBC’s argument that damages for misuse of private information should not include compensation for damage to reputation [334]-[345]. His award of £190,000 took into account the “profound” effect of the broadcasts on Sir Cliff, including their effect on his dignity, status, reputation, health and well-being [352].

Aggravated damages

Sir Cliff’s claims for aggravated damages were rejected save for the claim in respect of the BBC’s decision to put forward its coverage of the search for an industry award for “scoop of the year” (it did not win). Mann J considered this merited an additional award of £20,000, though he would not have given a separate award save for the importance (given the contribution claims) of distinguishing damage elements that were attributable only to either the BBC or SYP [365], [368]

Special damages issues

The major element of Sir Cliff’s claim for special damages comprises fees due to his own solicitors for the work they did following the broadcasts. Only certain aspects of this claim fell for determination at the first trial, and Mann J only determined them insofar as they related to “sample” pieces of work that were put in evidence. Mann J held that the costs of using solicitors to secure removal of a Facebook page called “Christians against Cliff”, to head off specific stories that the print and broadcast media were interested in publishing, and to deal with a particular individual who tried to blackmail Sir Cliff were all recoverable in principle (subject to further matters to be determined at the second trial). In all these cases Mann J considered that the solicitors’ actions were a reasonable attempt to contain the damage to Sir Cliff’s reputation flowing from the original broadcasts: [419]-[426]. He also considered that Sir Cliff was in principle entitled to recover fees for legal advice taken in respect of media interviews that Sir Cliff gave when the CPS announced that he would not be charged: [429]. He rejected the parts of the special damages claim based on legal fees incurred in dealing with the Home Affairs Select Committee inquiry into the case, and in dealing with US immigration law matters, on the basis that these consequences were not reasonably foreseeable and/or not within the scope of the tort [427]-[428].

A separate issue arose in respect of the advance for a revised edition of Sir Cliff’s autobiography that had been due to come out in October 2015. Here, Mann J accepted that the project could not have gone ahead while Sir Cliff was under police investigation, but found that, but for the BBC’s broadcasts (which he found had resulted in various “bandwagoner” complaints that the police had to investigate, lengthening the process), the investigation would have been over in time for the updated edition to be produced. Accordingly, the BBC is in principle liable for this lost advance [400]-[408].

Apportionment of responsibility/contribution issues

Of the total sum for general and aggravated damages (£210,000) Mann J held that the BBC and SYP were jointly responsible for £185,000 (the £20,000 aggravated damages were the sole responsibility of the BBC, while £5,000 of the damages were attributable solely to the SYP’s wrongful disclosure of the information to the BBC). Responsibility for these damages was apportioned 65/35% between the BBC and SYP respectively [445]-[447].

The BBC argued that, as a matter of law, the court could not award  SYP a contribution, because to do so would involve an infringement of the BBC’s ECHR art.10 rights which could not be justified under art.10(2). Mann J rejected both these contentions. He held that, once the BBC had been found liable to Sir Cliff, an order for contribution did not engage art.10, but in any event, if it did, it was justifiable under art.10(2) because an order would be “necessary in a democratic society …for the protection of the …rights of others”, namely SYP’s rights under the Civil Liability (Contribution) Act 1978 [441]-[444].

The final amount of any payment in respect of damages that needs to be made under the contribution claims by the BBC to SYP or vice versa cannot be determined until special damages are decided [451].

The contribution claims also extend to costs but Mann J wishes to hear further argument before deciding how responsibility for costs should be determined [452].

The judgment is available here.

2018-07-25T16:11:54+00:00July 18th, 2018|