Case Comment: Axon v Ministry of Defence and NGN Ltd – former warship captain loses privacy claim for leaks to the Sun – Aidan Wills

20 04 2016

hms somersetOn 11 April 2016, Nicol J handed down judgment in Axon v Ministry of Defence ([2016] EWHC 787 (QB)), dismissing a former Royal Navy commanding officer’s privacy and breach of confidence claims against the Ministry of Defence (‘MoD’) for a former employee’s leaks to the Sun.

The case has important implications for privacy claims arising from unauthorised disclosure to the media, particularly in relation to vicarious liability and its interaction with limitation.

Background

In 2004 Mr Axon was the commanding officer of a Royal Navy Frigate, HMS Somerset. The Navy removed him from his command after an equal opportunities investigation upheld complaints of bullying. Shortly after the Navy ordered Mr Axon to delegate his command of the ship (but before he was formally relieved of his command), the Sun published the first of several articles on these events, including one entitled “Mutiny on a Gulf Warship: Bully captain is kicked off.” Mr Axon was formally censured but never court martialled and remained within the Navy until 2007.

Mr Axon’s brought a claim against the MoD in 2014 after police officers from Operation Elveden (a police investigation into inappropriate payments to police and other public officials) informed him that the Sun had paid a former MOD employee, Bettina Jordan-Barber, for the information behind the “Mutiny on a Gulf Warship” story. The claim was brought on the basis that the MoD was vicariously liable for the actions Ms Jordan-Barber.

Subsequently, Ms Jordan-Barber, who worked in the MoD’s Iraq policy and operations team, pleaded guilty and was imprisoned for conspiracy to commit misconduct in public office for selling stories to the media. NGN accepted that £5,000 was paid in connection with this story.

The claimant accepted that he had bullied officers under his command and the sanctions imposed by the Navy. He nevertheless contended that that he had a reasonable expectation of privacy and confidentiality relating to the following facts: members of his crew had raised a complaint about him; an equal opportunities investigation had been carried out and its outcome; and he had been removed from the ship (prior to his formally being removed from his command). None of the information about these administrative actions had been made public by the MoD.

The MoD joined NGN as a third party, seeking a contribution or indemnity in the event that it was held liable to pay damages to Mr Axon.

Judgment

Source of the leak

Dismissing the defendant’s contention that it was not proven that Ms Jordan-Barber leaked the information to the Sun, Nicol J held that it was more likely than not that she did [78].

Reasonable expectation of privacy

After providing an overview of the law on reasonable expectation of privacy, the first stage of the two-stage for misuse of private information, Nicol J held that the claimant did not have a reasonable expectation of privacy in relation to the above matters [64]. Amongst a detailed analysis of this question, the following findings are notable:

  • The claimant’s very public position as the commanding officer of a warship was significant. Although this did not mean that there could be nothing about his performance in that role which would attract a reasonable expectation of privacy, it rendered inapt any comparison with the expectation of privacy that may attach to performance and disciplinary matters in private employment.
  • The claimant had accepted that there could be no reasonable expectation of privacy in regard to his formal removal from command (as distinct from his leaving the ship prior to this). It was immaterial that as of 14 December 2004 (when the first article was published), the claimant had not been formally relieved of his command. He had already been instructed to leave his ship and delegate command, and he had accepted his position as commanding officer was untenable. This made it inevitable that an application would be made to remove him from command and very likely granted (as it was).
  • The very unusual nature of the removal of a ship’s commander during deployment meant it was bound to become a public fact.
  • The serious nature and consequences of the claimant’s misconduct, which, relying on cases such as Re JR38 [2015] UKSC 42 and Axel Springer v Germany [2012] ECHR 227, Nicol J held to be relevant to the question of reasonable expectation of privacy. The judge cited evidence of, among other things, the claimant’s conduct having “undermined the fighting effectiveness of his ship.”
  • The claimant accepted when giving evidence during the trial that he could not have expected that his “abhorrent and shameful conduct” as a bully should be kept secret.
  • Those who complained about the claimant’s bullying had been interviewed and were told that their complaints had been upheld; they could have inferred from his sudden departure that the investigation had been critical of the claimant. The claimant cannot have had a reasonable expectation that the complainants would have kept quiet about his behaviour towards them.
  • While they needed to be taken into account, in the circumstances of this particular case the fact that documentation relating to the investigation and the follow-up was marked as ‘restricted’ was not sufficient to establish a reasonable expectation of privacy.

Breach of confidence

Expressing doubt as to the existence of a separate claim for breach of confidence, Nicol J held that such a claim took Mr Axon no further:

“[The claimant] cannot maintain a distinct claim for breach of confidence because he cannot show that Ms Jordan-Barber owed him any duty to keep any material confidential […]

I have no doubt that she owed a duty to preserve the confidentiality of information which she received in the course of her work and which she was not authorised to disclose to outsiders. However, that was a duty which she owed to either the Crown or the Ministry of Defence. It was not a duty which she owed to the Claimant. […] if the MOD had chosen itself to reveal any of the categories of information on which the Claimant relies, it would have been entitled to do so and the Claimant could not have prevented such disclosure[68].

While the court’s finding on reasonable expectation of privacy and confidence was determinative of the claim, Nicol J went on to consider several issues, some of which have broader resonance for this type of claim.

Causation of damage

The court held, having reviewed the evidence in this case, that claimant’s removal from command would have become public knowledge notwithstanding the leak by Ms Jordan-Barber [102]. Accordingly, Mr Axon would not have been able to show the necessary causal links between the misuse of private information (had a claim been made out) and the press publicity that caused the harm [105].

NGN would have succeeded in demonstrating that its article 10 rights outweighed any article 8 rights (if any had been established) of the claimant in regard to the information [103].

Vicarious liability

The Supreme Court’s decision in Mohamud v WM Morrison Supermarkets [2016] UKSC 11 was handed down during this trial. Applying the principles expounded by the Supreme Court (at [44] – [45] of its judgment), Nicol J held that the fact that Ms Jordan-Barber’s job did not involve any direct dealings with the media was not conclusive of question of the nature of her activities [91] – [92]:

“She worked in a security sensitive environment. She had Developed Vetting clearance which allowed her to have access to information up to the Top Secret classification. With this came obligations. […]For someone who occupied such a sensitive position it is in my judgment appropriate to view her job as including the task to preserve that confidentiality” [92].

The court inferred that Ms Jordan-Barber learned in the course of her work of the information that she provided to the Sun journalist. Had the court held that had a tort had been committed: “there is a clear and obvious connection between that wrong and that part of her job which required her to keep such information confidential” [94].

Employment in the Policy-Operations team of the MoD presented Ms Jordan-Barber with more than a mere opportunity for the tort to be committed. She had access to confidential information and shared office space with others from whom she was likely to learn information. It did not matter that leaking information to the media was done without the MoD’s knowledge and did nothing to further the MoD’s aims [95].

Nicol J concluded:

There is always an inherent risk that those entrusted with such information will abuse the trust reposed in them, but rather than this being a reason why vicarious liability should not be imposed, I think, on the contrary, it is a reason in its favour” [95].

Limitation

Nicol J indicated that the claim, brought more than six years after the information was disclosed, would not have been time barred; section 32 of the Limitation Act 1980 would have applied.

The court agreed with the defendant that knowing the

“precise identity of the primary wrongdoer is not necessarily a fact relevant to a cause of action based on deliberate wrongdoing. If the claimant can properly plead that the tortfeasor was an employee and was acting in the course of his or her employment that would be sufficient” [112].

Time would have run from the point at which the claimant was able to plead facts from which it could be inferred that it was more likely than not that the Sun’s source was an MoD employee [112]. The running of time for limitation purposes would not have been stopped on the basis that the claimant lacked sufficient information to sue a different defendant, i.e. Ms Jordan-Barber [112].

However, given that the information could have been disclosed to the Sun by, inter alia, family members of the complainants, Mr Axon

was not in position to plead facts from which it could be inferred that the MOD was vicariously liable” […] “until he knew that Ms Jordan-Barber was the Sun’s source” [113].

Ms Jordan-Barber was only identified as the Sun’s source by Operation Elveden in 2013.

Comment

This was the first civil trial arising from information uncovered by Operation Elveden. The significance of this judgment lies in its resonance for future claims arising from unauthorised disclosures of information by public officials, as well as for vicarious liability and limitation.

This judgment underlines the fact that people in (quasi)public roles are likely to find it difficult to establish a reasonable expectation of privacy in respect to misconduct committed in those roles.

Nicol J’s conclusions on breach of confidence suggest that, with claims arising from unauthorised disclosures, the courts are likely to regard the confidence as being owed to the employer rather than person about whom information has been disclosed. If this approach is followed in similar claims, pleading a breach of confidence claim alongside a privacy claim may not be worthwhile. Further, this case indicates that a breach of confidence claim is unlikely to assist where there is no reasonable expectation privacy. The Court of Appeal in its very recent judgment in PJS v NGN [2016] EWCA Civ 393 have reaffirmed this view.

Even where publication is reasonably foreseeable following an unauthorised disclosure, claimants may face difficulties with causation where defendants can establish that the information concerned would have come to light anyway.

The defendant and third party had argued that this privacy action was an abuse of process on the basis that it was a claim for harm to reputation. In view of his earlier findings, Nicol J was not required to grapple with this contentious issue. Following cases such Hannon and Dufour v News Group Newspapers Ltd & Anor [2014] EWHC 1580 (Ch), it seems inevitable that the courts will need to revisit this issue in the near future. 

 

From an evidential point of view, the inferences (see [78]) underpinning Nicol J’s conclusion that it was more likely than not that Ms Jordan-Barber disclosed the information to the Sun are instructive:

  • Unsurprisingly, the Sun’s admission it had paid Ms Jordan-Barber £5,000 for the story was critical evidence although (it seems) not conclusive.
  • The record of a sizeable payment to the MoD official indicated that the information disclosed was more than a “simple tip-off.”
  • The absence of call data between the official and the journalist was not decisive.
  • The absence of evidence as to how precisely the information was discovered by the official and then disclosed to the journalist may not prevent a court from concluding that the official concerned gathered and disclosed the information.

The court’s expansive approach to vicarious liability has important implications for claims arising from the unauthorised disclosure of information by employees of public bodies, and particularly those in security-sensitive roles.

This judgment suggests that the fact that a primary tortfeasor works in a security-sensitive environment and holds a security clearance militates strongly in favour of imposing vicarious liability for unauthorised disclosures. The preservation of confidentiality is regarded as part of the job of such employees. Accordingly, it appears that working in a security-sensitive environment may frequently be viewed as affording more than a mere opportunity for the misuse of private information.

This claim raised novel questions about the interaction between vicarious liability and limitation. Bettina Jordan-Barber’s leaking the information to the Sun was unknown to the claimant for more than 8 years after it occurred.

The court held that if a claimant can properly plead that the tortfeasor was an employee acting in the course of his/her employment, time does not stop run for limitation purposes. There is no need to know the identity of the primary tortfeasor. This issue seems likely to generate further discussion because in a claim against a primary tortfeasor, his/her identity is a fact relevant to the cause of action; time only starts to run once the test in section 32(1)(b) of the Limitation Act 1980 is satisfied. Where a claim is brought against that tortfeasor’s employer on the basis vicarious liability (as opposed to a primary claim against the employer), it might be thought that time would run from the same point.

This judgment also recognises that the rapidity with which information spreads may make it difficult for a claimant to establish that it was more likely than not (for the purposes of avoiding strike out) that the information was leaked by an employee of a defendant and not someone else. Accordingly, time may not start to run until a claimant is in possession of more information, such as information from a police investigation.

Finally, the court underlined the limits of reasonable diligence for the purposes of section 32 of the Limitation Act cases such as this. A claimant cannot be expected seek Norwich Pharmacal order in an attempt to identify a source, not least because media organisations can rely on section 10 of the Contempt of Court Act 1981.

This judgment has clarified the law in some respects, while also raising a number of questions relevant to the development of the tort of misuse of private information and its relationship with confidence. Mr Axon’s claim is likely to be the first in a number of privacy claims against public bodies arising from leaks to journalists on the part of their (former) employees. Yet recent cases suggest that privacy actions are likely to remain challenging and high risk for many claimants.

Aidan Wills is a trainee barrister at Matrix Chambers.

 

 

 


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