RICHARD STOUTE AND SARAH STOUTE V NEWSGROUP NEWSPAPERS

Neutral Citation Number: [2023] EWCA Civ 523

In a recent appeal by husband and wife, Richard and Sarah Stoute (the Appellants), Lord Justices Peter Jackson and Males led by Lord Justice Arnold upheld the decision of Johnson J not to grant injunctive relief to prevent publication by the Respondents, News Group Newspapers Limited, of two photographs showing the Appellants on a public beach.

The Appellants run a company which sells PPE to the NHS and private hospitals. During COVID- 19 the company made around £2 billion. As a result of this entrepreneurial success, the Appellants have found themselves subject of interest to the press. In late 2021 the Appellants were photographed while on holiday at their second home in Barbados with their three children aged 16, 18 and 23 and several of their friends. The couple were photographed by paparazzi in multiple locations during their stay including, on sunbeds outside their property, boarding a private boat with their friends and family and arriving at an exclusive beach-front restaurant via jet ski from their private boat to celebrate the birthday of one of their children.

The Appellants were granted an in urgent interim injunction by Williams J in respect of the photographs depicting them outside their home and of their boat. However, the Judge refused to grant an injunction in relation to two photographs showing each of the Appellants arriving to the exclusive restaurant accessed via a public beach.

At the return date, Johnson J refused the Appellants’ application to prevent publication of the photographs until trial. The Appellants argued that their urgent application had been refused on an erroneous basis because the copy of one of the photographs provided by the Respondent for the hearing was, in fact, a cropped version of the final photograph as published which showed more of Mrs Stoute’s body. The Respondent argued that, despite the differences in the photograph, these facts had already been considered at the urgent hearing. Johnson J held that the application was not an abuse of process. The previous urgent application had been held at very short notice given that the Respondent only provided copies of the photographs to the Appellants 24 hours prior to publication. Furthermore, the Appellants had only been provided with cropped copies; had they been provided full versions they might have presented different evidence at the urgent hearing. The Judge considered that the application should be reconsidered on the whole rather than simply reviewed.

Johnson J noted that the photographs were taken in a public place and their subject matter would have been visible to anyone on that beach. He found that they did not contain subject matter that was inherently private. He added that there was a ‘demonstrative and performative element’ to the Appellant’s action on the beach (i.e. being ferried from a private yacht to the beach via jet ski in order to reach the beachfront restaurant) and that more of Mrs Stoute’s body being shown in the final version did not have material consequence. The Judge considered it relevant that the photographs were taken using a telescopic lens without the Appellants consent following two or three days of pursuit, but he did not consider these issues were present to such an extent that the Court would consider the Appellants had a reasonable expectation of privacy.

Finally, the Judge held that a balance must be struck between injunctive relief and maintaining the Status Quo. The Johnson J ultimately held that, as the photographs had already been published, granting injunctive relief before trial could obstruct the Respondent’s right to freedom of expression if the publication of the photographs were to be found lawful at trial. By contrast, if injunctive relief were not granted and publication were found to be unlawful at trial, any further damage caused by publication during the additional period could be dealt with by the award of further damages.

In their appeal of the decision of Johnson J, counsel for the Appellants averred that Johnson J had erred in law for five reasons, all of which were considered by Lord Justices Arnold, Peter Jackson and Males as follows.

Despite the Appellants’ argument to the contrary, the Court held that Johnson J had been correct to consider the ‘demonstrative and performative element’ of the photographs as a factor and that the amount weight he apportioned to that element was a matter for him to decide.
The Appellants argued that Johnson J had failed to sufficiently consider the weight of the nature of event (namely that it was a birthday celebration for their child). The Court held that Johnson J had discussed the point at paragraph 32 of his judgment and so had considered that circumstance sufficiently.
Furthermore, they argued that the Judge had not apportioned sufficient weight to the fact they were followed by paparazzi but again the Court held that he had considered this factor and that the weight apportioned to it was a matter for him.
The Appellants also characterised Johnson J’s judgment as ‘victim-blaming’ as he had commented in his judgment that, despite being aware of paparazzi, the Appellants had chosen to go out for dinner and what to wear. The Court disagreed finding that the Appellants had chosen to arrive at the beach in an ‘attention grabbing’ manner while fully aware of paparazzi presence and that this was a legitimate factor to consider according to existing case law in the ECHR.
Finally, the Appellants argued that Johnson J had not considered the Effect of the ongoing intrusion of the photograph’s publication on the Appellants in his conclusion. The Court held, however, that, although Johnson J had not referred to it directly in his conclusion, he had mentioned this subject twice in alternative sections of his judgment, including in his summary. They were, therefore, satisfied that he had sufficiently considered this issue.

The Court concluded that Johnson J had not erred in law and that he was correct in all his conclusions, including his conclusion that further publication of the photographs would cause little further irreparable damage to the Appellants and that a refusal of the injunction would maintain balance.

The Court also noted that this decision did not entitle the Respondent to publish any photograph of the Appellants and that further publications may lead to an actionable tort.