Axon v Ministry of Defence and News Group Newspapers Ltd

Axon v Ministry of Defence and News Group Newspapers Ltd [2016] EWHC 787 (QB), 11 April 2016

The Facts

The claim arose from the Operation Elveden inquiry, which was a Metropolitan Police investigation into allegations of inappropriate payments to police officers and other public officials. In 2004, the claimant, David Axon, was the commanding officer of a Royal Navy ship. Axon alleged that a Ministry of Defence civil servant (“the informant”), who was convicted under Operation Elveden, had disclosed to The Sun newspaper information about an equal opportunities investigation, which found the claimant guilty of consistent bulling of junior officers and led to his removal from command. The Sun published three articles about the matter.

Axon argued that the informant’s actions breached his right to privacy under article 8 of the European Convention of Human Rights, and was a misuse of his confidential information, for which the Ministry of Defence was vicariously liable.

In the alternative, the Ministry of Defence claimed an indemnity from The Sun for its role in the articles. The Sun argued that it had its own rights of freedom of expression under article 10 of the European Convention of Human Rights, and that it was in the public interest to publish the information. This included the public interest of exposure of wrongdoing and its addition to a general public debate regarding bulling in the armed forces.

The case raises important issues regarding a person’s legitimate expectation to privacy, and the public interest defences available to parties. It also raises the question of whether damages in breach of privacy cases are permissible, especially when the issue in dispute relates to the claimant’s public role, and not his personal life.

 

The Decision

The claims were dismissed on the basis that the claimant did not have a reasonable expectation to privacy in the information disclosed by The Sun. The issues raised concerned the claimant’s role in a very public position and the removal from his role was a public fact. In making his decision, the Judge also took into account the gravity of the claimant’s behaviour, which had been described by the Royal Navy’s Chief of Staff as ‘gross misconduct’. As there was no reasonable expectation of privacy, the Judge did not have to conduct the balancing exercise between the claimant’s article 8 rights and the newspapers article 10 rights.