Jersey Unreported Judgments

[2004]JRC209

royal court

(Samedi Division)

 

29^th November 2004

 

 

 

 

Application by the Plaintiff for leave to amend his Order of Justice following guidance and leave given to him by the Court of Appeal.

 

 

The Plaintiff in person

Advocate S. Franckel for the First and Second Defendants

 

judgment

the COMMISSIONER:

1.        On the 14^th May, 2004, the Court of Appeal dealt, at some length, with Mr Cole's claims.  As part of what they said I will recite the following paragraphs:

"13.    In the light of this pleading the Royal Court deduced that the following causes of action were being relied on by Mr Cole (see paragraph 6 of the judgment: I ignore one which Mr Cole no longer relies on):

i.  a claim against the Jersey Police for breach of the 1987 Law;

ii.  a claim against both defendants for breaches of the ECHR or the Human Rights (Jersey) Law 2000 ("the 2000 Law") by reason of the disclosure and use of Mr Cole's spent convictions without his consent;

iii.  a claim in negligence against Jersey Post: see paragraph 11 of this judgment;

iv.  a claim in negligence against the Jersey Police: see paragraph 12 of this judgment.

14.  What the Royal Court did not consider was whether any potential claim lay against either defendant based on the alleged violation of Mr Cole's privacy: see paragraph 10 above.  To this I will return later.

15.  In relation to the four causes of action set out in paragraph 13 above, the Royal Court dealt very fully with the legal bases of those causes of action, and in my judgment correctly.  I would be content to adopt the reasoning of the Royal Court without more.  But in deference to the arguments of Mr Cole (which he put forward with ability) and of Advocate Benest, I will quite briefly consider each cause of action.

The Court of Appeal then goes on to do just that.

2.        The Court went on to say this:

"I also agree with the Royal Court that no basis for a claim in negligence against the Jersey Police, sought to be founded in the respects set out in paragraph 12 above, has been established by Mr Cole.  As I have stated above, no claim lies against the Jersey Police for breach of the 1987 Law.  It was for Jersey Post, not the Jersey Police, to obtain any consent from the subject of the data they requested and obtained from the Jersey Police.  Mr Cole's convictions were not spent under the law of Jersey (the Rehabilitation of Offenders (Jersey) Law 2001 not yet having been brought into force), and it was for the UK Police, not the Jersey Police, to have regard to the legal position in England that his convictions in the United Kingdom had become spent under English law.

In my judgment each of the causes of action relied on by Mr Cole before the Royal Court, and considered by that Court, is doomed to fail.  He should not be permitted to pursue any of those causes of action, not least because that would result in a waste of expense to the defendants, potentially large liability of Mr Cole for the defendants' costs, and waste of the Courts' limited resources and time."

3.        Finally at paragraph 31 the Court of Appeal said this:

"In my judgment the causes of action now relied on by Mr Cole are unsustainable.  I would order that within a period to be specified

i.         Mr Cole is to amend his order of justice by deleting from it all references to these causes of action and to the facts referable solely to these causes of action; and

ii.        Mr Cole, if he so wishes, is to be permitted to formulate a draft amended order of justice setting out only the facts and other matters on which he seeks to rely in support of a cause of action for breach of confidence or misuse of private information; and

iii.       Mr Cole is to apply to the Royal Court for leave to amend his order of justice in accordance with (i) and (ii) above.

If Mr Cole does not seek to amend his order of justice in accordance with (ii) above and within the period to be specified, the order of justice should in my judgment be struck out without the necessity for any further application."

4.        Mr Cole originally appeared before me and two Jurats, but his Order of Justice which he had drafted himself left a little to be desired and at that hearing - which was as long ago as 23^rd September - the Court advised Mr. Cole, because of the complexity and the potential costs, to obtain legal advice and/or procedural advice from the Judicial Greffier and we adjourned the matter.

5.        Mr Cole now presents an amended Order of Justice.  The only defendant is the Chief Officer of the States of Jersey Police, and at this point, Jersey Post must have its costs on the standard basis.

6.        Advocate Franckel quotes from a case, Van Neste -v- Saunders (7^th April, 1997) Jersey Unreported; [1997/63].  This was a case before the Judicial Greffier in the Royal Court heard on 7^th April 1997.  In that judgment the Judicial Greffier says:

"However, it seems to me that it is possible for a defendant to raise, on an application for an amendment, fundamental objections to the proposed amendment and, in my view, if such a proposed amendment would be struck out then leave ought not to be given for it to be included."

7.        In a case that was used in the Jersey Court of Appeal, Campbell -v- MGN Ltd [2004] 2 All ER 995, which was a decision of the House of Lords, Lord Nicholls said:

"An objection to an amendment which would be a valid ground for striking out the amended action would preclude the Court from allowing that amendment to be made"

What he said was this:

"In this country unlike the United States of America, there is no overarching, all-embracing cause of action for 'invasion of privacy':  see Wainwright -v- Home Office [2003] UKHL 53, [2003] 4 All ER 969, [2003] 3 WLR 1137.  But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions.  The recent decision of the Court of Appeal of New Zealand in Hosking - v - Runting, (25^th March 2004, unreported) is an example of this.  In this country development of the law has been spurred by enactment of the Human Rights Act 1998."

He went on to say this:

"The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence.  A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust.  Today this nomenclature is misleading.  The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence.  To attract protection the information had to be of a confidential nature, but the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances 'importing an obligation of confidence' even though no contract of non-disclosure existed:  see the classic exposition by Megarry J in Coco - AN Clark (Engineers) Ltd [1969] RPC 41 at 47-48.  The confidence referred to in the phrase 'breach of confidence' was the confidence arising out of a confidential relationship.

He went on to say this:

"The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable.

Information about an individual's private life would not, in ordinary usage, be called 'confidential'.  The more natural description today is that such information is private.  The essence of the tort is better encapsulated now as misuse of private information.

8.        Mr Cole appears to rely in his amended Order of Justice on Articles 8 and 10 of the European Convention.

9.        In the case of A -v- B (a company) [2002] EWCA Civ 337 the court said this:

"The court's approach to the issues which the applications raise has been modified because under section 6 of the 1998 Act, the court, as a public authority, is required not to act 'in a way which is incompatible with the Convention right'.  The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence.  This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.

.....

The manner in which the two articles operate is entirely different.  Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy.  It requires a generous approach to the situations in which privacy is to be protected.  Article 10 operates in the opposite direction.  This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence.  There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect.  This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect.  Each article is qualified expressly in a way which allows the interests under the other article to be taken to into account."

10.      Mr Cole must know that there is no tort of public misuse of confidential information in Jersey, and of course we follow the guidance of the English court.  Advocate Franckel told us that Mr Cole thought that the Rehabilitation of Offenders Act in England applied to Jersey.  As we all now know, it clearly does not.

11.      On the evidence, there was a police check to be carried out.  It was not expressly agreed but it was clearly impliedly agreed.  Mr Cole thought that he would get a form.  If he had allowed his consent, then he would not have got the job because of what was disclosed.  If he had not allowed his consent, he would still not have got the job because no police check would have been carried out.

12.      The police, having obtained the information, clearly had a public interest to protect and were bound to disclose the information.  Now that is a matter which Mr Cole may need to take up with the English police force.  The sworn affidavit of Allyson Edwards of the Criminal Justice Unit - she was the manager - was before the Court of Appeal and the Court below and her affidavit has been fully explained and examined in both those courts.

13.      Mr Cole's sole argument appears to us to be the fact that the Jersey Police did not have authority to obtain the information because he gave no express consent.  In his amended Order of Justice, Mr Cole makes 5 points as follows.  They are set out 10, 11,12, 13 and 14 and I will set them out now:

10.  The Plaintiff contends the information disclosed by the Defendant was in breach of the Data Protection (Jersey) Law 1987 wherein the subject must give explicit consent.

11.  The Plaintiff contends the Defendant breached Schedules 1 and 3 of the UK Data Protection Act 1998 and principles 1,4,5,6 and 8, cross-border data transmission.

12.  The Plaintiff further contends that the disclosure of his confidential information was a breach of confidence and violation of his fundamental rights to privacy contained in Articles 8 and 10 of the Human Rights Act 1998.

13.  The Plaintiff contends the Defendant's actions were ultra vires or in the alternative, were in breach of their statutory duty.

14.  The Plaintiff contends that the Defendant owed him a duty of care which they failed to provide.

14.      In my view, having heard argument from both parties, 10, 11, 13 and 14 have all been argued and decided upon by the Court of Appeal, which leaves only Point 12.  Having thought about this for a considerable time, this Court can see no possibility of success or, perhaps better put, the case is so tenuous as not to warrant further argument. 

15.      In any event it is impossible to see how Mr. Cole has had his reputation damaged by the actions of the Defendant or how he has lost £1,800 by way of loss of earnings or why he should be awarded exemplary damages from the Defendant. 

16.      Mr. Cole did not apply to have his case heard in camera.  He did not speak to anyone.  He did not seek anonymity and the "Jersey Evening Post", which recorded the whole matter, prepared its report in the usual way once the answer had been filed.  The damage to reputation which may, of course, be a serious one cannot in our view lie at the door of the Defendant in this proposed action.

17.      In these circumstances we have no alternative but to order that the Order of Justice be herewith struck out. 

18.      Leave to appeal is refused.  That does not mean that that is the end of it because what you do now, is you go before the Bailiff, because the Deputy Bailiff has heard the case before, and see if he will give you leave.

Authorities.

Van Neste-v-Saunders (7^th April, 1997) Jersey Unreported; [1997/63].

Royal Court Rules 1992, as amended: Rule 6/13.

Campbell-v-MGN Ltd [2004] 2 AllER 995.

Wainwright-v-Home Office [2003] UKHL 53.

A-v-B (a company) [2002] EWCA Civ 337.

R-v-Chief Constable of North Wales Police [1998] 3 AllER 310.

Attorney General-v-Guardian Newspapers (No.2) [1988] 3 AllER 545.

R-v-Chief Constable of West Midlands Police (Court of Appeal) (18^th August, 2004) The Times.

Douglas-v-Hello! [2003] EWHC 2629 Ch

RSC: Order 18; rule 19.