Undesirable Conduct Not Sufficient to Strike Out Defences

The trial of Douglas and Zeta-Jones v Hello! Limited and Others has received prominent coverage in both the broadsheet and tabloid newspapers over the last few weeks. Analyses of the privacy laws in this country have been mixed in with snippets about, and commentary on, the evidence given at the High Court by the film stars, Michael Douglas and Catherine Zeta-Jones. One procedural development in the case which did not receive much attention, but which is of interest to those involved in litigation, was the unsuccessful application by the claimants to strike out some of the defences. This decision indicates that only in very exceptional cases will defences be struck out for undesirable conduct and serious transgressions of the rules.

Background

When Michael Douglas and Catherine Zeta-Jones married in November 2000 in New York they gave OK! magazine the exclusive rights to publish photographs of their wedding. However the rival magazine, Hello!, obtained some unauthorised photographs. Hello! printed the unauthorised photographs, but the claimants (Douglas, Zeta-Jones and the publishers of OK!) obtained an injunction to restrain their publication. The Hello! defendants (namely the publishers and distributors of Hello! and related magazines) appealed to the Court of Appeal against the injunction. Two separate hearings were held and the injunction was discharged. This allowed Hello! to publish the unauthorised photographs.

The claimants continued the action against the Hello! defendants for damages for breaches of confidentiality, privacy and the Data Protection Act 1998 and also interference with their respective rights and businesses, including conspiracy. The claimants subsequently added further defendants to their claim, including the photographer who had supplied the unauthorised photographs and a media consultant to Hello! magazine. Before trial the claimants sought permission to re-amend their particulars of claim, in light of information which had emerged following the joinder of one of the further defendants, and applied for the defences of the Hello! defendants to be struck out. A further application by two of the defendants was made to dismiss the claims against them.

Application to strike out the defences

The grounds for the application were that the Hello! defendants had interfered with the course of justice and/or put the fairness of the trial in jeopardy in that they:

made false statements to the Court of Appeal during the...