Peters v Bennett
[2020] NZHC 761
•20 April 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001122
[2020] NZHC 761
BETWEEN WINSTON RAYMOND PETERS
Plaintiff
AND
PAULA BENNETT
First Defendant
…/2
Hearing: 4-8, 11-13 November 2019 Appearances:
B P Henry and A R Kenwright for Plaintiff
B D Gray QC, P T Kiely and H M Z Ford for First and Third Defendants
V E Casey QC, N J Wills, S P R Conway and R J Warren for Second and Fourth Defendants
Judgment:
20 April 2020
JUDGMENT OF VENNING J
This judgment was delivered by me on 20 April 2020 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors: Clifton Killip Lyon, Auckland
Kiely Thompson Caisley, Auckland Crown Law, Wellington
Counsel:B Henry/S Singh Auckland B Gray QC, Auckland
V Casey QC, Wellington
PETERS v BENNETT & ORS [2020] NZHC 761 [20 April 2020]
AND PETER HUGHES
Second Defendant
ANNE MERRILYN TOLLEY
Third DefendantTHE ATTORNEY GENERAL sued on behalf of the MINISTRY OF SOCIAL DEVELOPMENT
Fourth Defendant
BRENDAN BOYLE
Fifth Defendant
TABLE OF CONTENTS
Introduction [1]
The claim [7]
Witnesses [8]
Mr Peters’ application for NZS [10]
Interpretation of the form [18]
Events in 2017 [30]
The MSD investigation [32]
Mr Boyle’s involvement [41]
Mr Hughes’ involvement [50]
The Ministers’ involvement [52]
The evidence of the subpoenaed witnesses – disclosure to the media [67] The defendants’ expert [77]
Tort of privacy [81]
Privacy Act 1993 [89]
Defamation [93]
A reasonable expectation of privacy [94]
Highly offensive [118]
Mr Peters’ press release [121]
The pleaded claim against the first and third defendants [128]
Res ipsa loquitur [141]
Fourth cause of action [156]
Cabinet Manual 2017 [158]
The pleaded claim against the second, fourth and fifth defendants [170] Second cause of action [237]
Third cause of action [248]
The Crown defendants’ positive defences [253] Section 86 of the State Sector Act 1988 [254] Public concern defence [264]
Damages [268]
Summary/result [276]
Costs [282]
Introduction
[1] The Right Honourable Winston Peters claims the defendants have breached his privacy.
[2] In April 2010, Mr Peters applied for and was granted New Zealand Superannuation (NZS) by the Ministry of Social Development (MSD).1 Mr Peters was paid NZS at the single rate. In May 2017, Mr Peters’ partner, Ms Trotman, applied for NZS. In the course of processing her application, MSD reviewed Mr Peters’ file. The review raised the question of why he was being paid NZS at the single rate when he had a partner. An MSD officer met with Mr Peters in July 2017. It was agreed Mr Peters had been overpaid NZS as he was not single and had a partner, Ms Trotman, at the time he was granted NZS. Mr Peters immediately arranged for the overpayment to be repaid.
[3] In the meantime, in June 2017, Mr Boyle, the chief executive of the MSD, had disclosed the overpayment and the MSD investigation into it (the payment irregularity) to the State Services Commission (SSC).2
[4] On 31 July 2017, Mr Boyle also briefed Ms Tolley, the Minister of Social Welfare at the time, about the payment irregularity. On 1 August 2017, Mr Hughes, the State Services Commissioner, briefed Ms Bennett, the Minister for State Services at the time.
[5] An unknown source disclosed the payment irregularity to the media by anonymous calls to reporters between 23 and 25 August 2017. On one occasion the source alleged Mr Peters had lied when applying for NZS.
[6] On 26 August 2017, Lloyd Burr, a journalist approached Mr Peters. Mr Burr made it clear he had knowledge of the payment irregularity. To mitigate the damage
1 The Attorney-General is sued as the fourth defendant on behalf of the Ministry of Social Development (MSD).
2 In the statement of claim, Mr Peters defines the payment irregularity as: (a) the fact there had been an investigation into the payment of New Zealand Superannuation (NZS) to him; (b) the fact there was an issue between the MSD and Mr Peters regarding the overpayment of NZS; and
(c) the details of the issue as to the overpayment of NZS. In this judgment, I use the term payment irregularity to refer to the overpayment of NZS and the subsequent MSD investigation.
to him personally and politically, particularly in the context of a general election due to be held on 23 September 2017, Mr Peters issued a press statement the next day. Over the next weeks and even months, a number of news items followed in which the payment irregularity and Mr Peters’ situation were discussed further.
The claim
[7] Mr Peters says that the public disclosure of the payment irregularity was a breach of his right to privacy. He says the defendants had a duty to keep the details of the payment irregularity confidential. In disclosing the payment irregularity to others Mr Peters says the defendants breached that duty.3 He seeks declaratory relief and damages.
Witnesses
[8] Mr Peters and Ms Trotman gave evidence. Mr Peters also called journalists, Barry Soper, Melanie Reid and Jenna Lynch, under subpoena. In addition, Mr Peters called other witnesses under subpoena: Mr Harvey and Ms Murchison, public servants who worked in Minister Tolley’s office.
[9] Ms Bennett and Ms Tolley gave evidence, as did Mr Hughes and Mr Boyle. In addition to the evidence of Mr Hughes and Mr Boyle, the second, fourth and fifth defendants (the Crown defendants) called evidence from a number of MSD staff and also expert evidence from Sir Maarten Wevers.
Mr Peters’ application for NZS
[10] A significant amount of evidence during the hearing related to Mr Peters’ completion of the application form for NZS. The payment irregularity arose because Mr Peters’ application was processed and payments of NZS were made to him on the basis he was single at the time he applied for NZS. That was an error as, at the time, he had a partner, Ms Trotman. Mr Peters considered the MSD and its form were responsible for the error. The MSD and the Crown defendants considered Mr Peters
3 Although in opening, Mr Henry, counsel for Mr Peters’ accepted Mr Peters had no issue with the MSD raising the issue with the State Services Commission (SSC).
was responsible for it. I have come to the view that the error arose through a combination of circumstances. The ambiguous nature of the form, the MSD officer who processed Mr Peters’ application and Mr Peters himself all bear some responsibility for the error which led to the payment irregularity.
[11] Mr Peters attended a MSD service centre in Auckland on 12 April 2010 to apply for NZS. At the time, applicants for NZS were required to complete a hard copy application form and to undergo an appointment with a case officer. It was customary for the application form to be completed by the applicant before the appointment. At the appointment, the case officer’s role was to ensure the form was completed, that the applicant was of the qualifying age and that the criteria for eligibility had been established. Interviews normally took about an hour.
[12] The first factual issue in dispute is whether Ms Trotman was with Mr Peters when he attended the MSD service centre. Mr Peters relies on the fact Ms Trotman was with him to support his argument the fault lay with the MSD. The evidence of Ms S, the case officer who attended Mr Peters on the day, is that he came to the service centre around 3.30 pm on 12 April 2010. He did not have a prior appointment. The receptionist brought him straight through to her and she made time to process the application for him. Ms S said she did not see anyone with Mr Peters during the time he was at the service centre. Ms S’s evidence is supported by the evidence of the receptionist on the day and by Ms H, the service centre manager at the time. The receptionist said that Mr Peters was alone as he entered the reception area. Ms H said that when Ms S brought Mr Peters over to her office to introduce him to her after the interview there was no-one else with him.
[13] Mr Peters and Ms Trotman both said that Ms Trotman was with Mr Peters at the time of the interview.
[14] I prefer the evidence of Mr Peters and Ms Trotman on the issue of whether Ms Trotman was with Mr Peters when he attended the service centre on 12 April 2010. Ms Trotman impressed as a straightforward witness. She and Mr Peters had reason to remember the attendance at the office, it being a one-off occasion for them, whereas, while the service centre staff might remember Mr Peters, they did not have the same
reason to remember the surrounding details of his visit (such as Ms Trotman’s presence) some seven years after the event when Mr Peters’ entitlement to NZS was first reviewed.
[15] There are a number of further reasons why the MSD staff at the service centre may not have noticed Ms Trotman. The receptionist had no reason to observe and note Ms Trotman’s presence. Mr Peters would have approached the receptionist himself. Next, Ms S was not expecting to see Mr Peters. I accept that, in giving her evidence, Ms S was trying to recollect the events as best she could. But it was apparent Ms S was extremely nervous when giving her evidence. She was overawed by the Court process and the focus on her actions in April 2010. It would have been a significant event for her to have been asked to deal with a person of Mr Peters’ profile and standing when she met him in 2010. She was not expecting to see him. He had no appointment. She would have been distracted by the fact she was dealing with Mr Peters, as is apparent from the way she allowed the form to be completed and processed. Also, as explained below, Ms Trotman was not present for the entire interview so Ms S’s recollection that Ms Trotman was not with Mr Peters is correct, at least in part.
[16] Next, as Ms Trotman said, she makes it a practice of attending functions with Mr Peters, but she always remains in the background. That is another reason why the MSD staff may not have noticed her. Further, at meetings, she often left earlier to collect the car so that Mr Peters could leave when he wished to. She said she followed that practice on 12 April 2010 and went to get the car before the interview with Ms S was completed and before Mr Peters was taken to meet the manager and other MSD staff. I accept Ms Trotman’s evidence that she did that in the present case so that, when Ms S took Mr Peters across to meet Ms H, Ms Trotman would not have been present. That explains why Ms H did not see Ms Trotman.
[17] I do, however, consider that Mr Peters and Ms Trotman are mistaken when they say that Mr Peters introduced Ms Trotman to Ms S as his partner or if he did, that he did so in a way that made it clear to Ms S that Ms Trotman was his partner. Mr Peters can at times speak brusquely and quickly. If Mr Peters did introduce Ms Trotman to Ms S as his partner, it may be he did so at a time and in a manner that it did not register
with Ms S. If Ms S was alerted to the fact that Ms Trotman was his partner, I am sure that she would have sought to clarify the ambiguous answer to question 26 on the application form with Mr Peters. While no doubt nervous, and somewhat overawed by Mr Peters, Ms S struck me as a conscientious employee.
Interpretation of the form
[18] A number of issues arose in connection with the completion of the application form. The form was apparently signed and dated 11 April 2010 but was processed on 12 April 2010. That is readily explainable. 11 April 2010 was a Sunday. The fact the form is dated 11 April 2010 is consistent with Mr Peters completing the form at home the day before he attended the service centre the next day, Monday, 12 April 2010. It is apparent from the date stamp on the form that it was processed by Ms S at the service centre on Monday, 12 April 2010.
[19]Next, there is the question in issue on the form, question 26:
[20] Considerable time was spent during the hearing on questions relating to this particular question. The evidence of the MSD staff and Mr Boyle was to the effect that, as one of the subsidiary boxes (in this case the living apart/separated one) had been ticked, there was no need for the answer to the primary question in question 26 “Do you have a partner?” to be completed.
[21] I am unable to accept that proposition. The form contemplates that there will be an answer to the primary question. Question 26 contemplated a direct answer, either ‘No” or “Yes” to the primary question “Do you have a partner?”. If Mr Peters had been required to complete that question, that would have resolved the issue that has given rise to these proceedings. I am sure Mr Peters would have truthfully answered the question and ticked “Yes”.
[22] The boxes to the right-hand side of the No/Yes response are clearly subsidiary. They do not directly answer the primary question. While I accept they were intended to be dependent on the earlier answer, they can lead to error as this case has shown. At the time, Mr Peters was living separate and apart from his former wife (they were not divorced). His answer to the subsidiary question was therefore literally correct. He was living apart/separated from his wife. But he had a partner, Ms Trotman. The form, as completed, was actually incomplete as the primary No/Yes response was not completed. The form should not have been processed as it stood. Mr Peters should have completed the primary question, and Ms S should have asked him to complete the answer to the primary question, rather than leaving it incomplete.
[23] It is clear enough from the answers given by Mr Peters to other questions he was not suggesting he did not have a partner. When the form took Mr Peters to the living alone payment section, on page 13 of the form, he answered “No” to the question “Do you want to apply for the living alone payment?” The question is directed at a different issue, but Mr Peter’s answer is consistent with his explanation of what he understood he was being asked when completing the subsidiary section in question 26.
[24] While Ms S should have picked up that question 26 had not been properly or adequately answered and the form was incomplete, Mr Peters must also bear some responsibility for the resultant ambiguity in the form as completed and the consequent issues that arose. To the left-hand side of question 26 is the definition of partner. If Mr Peters had read that definition, it would have been clear, given that Ms Trotman was his partner, that he should have completed the primary question in question 26 and answered it by ticking “Yes”.
[25] Another issue with the completion of the application form arose at questions 33 and 34:
33.Do you want to include your partner in your New Zealand Superannuation?
And:
34.Is your partner receiving a current benefit?
Mr Peters had ticked “No” in response to both questions but then the tick has been crossed out and “Yes” has been ticked.
[26] I accept the evidence of Ms S that Mr Peters must have crossed them out. I do not place any weight on the fact they were not initialled as the other alterations to the form were initialled. Mr Peters’ attempted reliance during cross-examination on the fact he had not initialled the alterations to suggest the form could have been filled in by Ms S, not him, was a clear case of post fact reasoning and contrary to his earlier evidence-in-chief when he said he had completed the questions in issue.
[27] However, the fact that Mr Peters engaged with the questions that are premised on the basis he had a partner is further confirmation that there was no attempt on his behalf to mislead the MSD in any way about his relationship with Ms Trotman.
[28] In summary, an error was made in the completion of the application form. The error arose because Mr Peters did not fully complete question 26 and Ms S did not require Mr Peters to complete the answer to the primary question in question 26. Mr Peters’ apparent failure to read the explanatory note to question 26 which set out the definition of partner contributed to the error. The combination of errors led to Mr Peters receiving NZS at a higher rate than he was otherwise entitled to.
[29] I understand that the application form for NZS has been amended and is no longer in the form it was in 2010. The issue which has given rise to this case should not arise again.
Events in 2017
[30] There was one further relevant event that occurred before Ms Trotman made her application for superannuation in May 2017. On 18 March 2014, the MSD sent a standard letter to Mr Peters which included a request that asked him to check the following details:
Relationship Status: You are single.
Your living situation: You are not living alone.
[31] Mr Peters did not respond to the letter. He has no recollection of it but accepts he would have received it. He says he understood the letter was asking if there was any change in his circumstances. He took the view that there had been no change in his circumstances since the 2010 interview. While Mr Peters’ details had not changed, the letter expressly set out that the MSD’s records of Mr Peters’ relationship status was that he was single. That was incorrect. If Mr Peters had paid more attention to the letter, he would have realised there was an issue with the MSD’s records regarding his initial application.
The MSD investigation
[32] The potential overpayment issue was initially drawn to the attention of Ms Nugent, the acting regional director for the north-west area at the time.
[33] On 14 June 2017, Ms Nugent was notified that there was an irregularity in relation to the information provided in Ms Trotman’s and Mr Peters’ applications for NZS. The case manager dealing with Ms Trotman had notified her manager who elevated the matter to Ms Nugent because of the sensitivity around Mr Peters’ profile. Ms Nugent advised her manager, who was the regional director for Auckland at the time, who suggested she go directly to the general manager, adviser in the service delivery team at National Office.
[34] Ms Nugent emailed the information to the general manager, adviser on 16 June 2017. From then on, Mr Te Awhe, the deputy chief executive adviser at the time, became primary contact for Ms Nugent. Once Mr Peters’ file and application form was located and reviewed, a decision was made to meet with Mr Peters to clarify the information. That decision was made on 26 June 2017. On the same day, Mr Peters’ client notes were sent to Mr Boyle as he was to meet the SSC that afternoon to discuss the issue.
[35] Ultimately, a letter was sent to Mr Peters on 14 July 2017 inviting him to a meeting. Mr Peters said he received it on 24 July 2017. He immediately rang to speak to Ms Nugent but his call went to voice mail. On 25 July 2017, Ms Nugent rang him back. Ms Nugent’s notes record that, during the course of that telephone conversation, Mr Peters advised her that question 26 referred to his first wife, not his partner, Ms
Trotman, who was with him at the interview. Following the telephone contact on 25 July 2017, they arranged to meet at 9.30 am the next day, 26 July 2017.
[36] Ms Nugent said Mr Peters seemed surprised at the meeting when shown the answers on his application form. Mr Peters agreed that what Ms Trotman had advised about their relationship was correct. Ms Nugent made notes of their discussion. She noted they had a discussion around Mr Peters’ first wife and that he had defaulted to his legal status when looking at question 26.
[37] Ms Nugent formed the view that Mr Peters had ticked the subsidiary box to question 26 by mistake. She was satisfied there had not been any intention to mislead or defraud the MSD.
[38] Mr Peters had a slightly different view of how the meeting went. He said it was accepted that an error had been made when the form was completed and that the MSD acknowledged there was an error/conflict between the conversation and the form.
[39] In any event, the important point was that both agree on the outcome of the meeting. Ms Nugent accepted Mr Peters had not attempted to mislead the MSD. Mr Peters agreed to repay the overpayment immediately. Ms Nugent was to clarify the final figure.
[40] Mr Peters was subsequently advised of the overpayment figure of $17,936.43 by telephone. It was paid immediately. Ms Trotman confirmed payment by email on 27 July 2017. On 3 August 2017, a formal letter was sent to Mr Peters confirming the overpayment had been repaid in full and the MSD considered the matter closed.
Mr Boyle’s involvement
[41] In the meantime, Mr Boyle had been alerted to the issue of the payment irregularity, initially at a team meeting on 19 June 2017. Recognising the sensitivity of the matter, Mr Boyle directed the file and investigation be locked down and access restricted.
[42] Mr Boyle also contacted Ms Power, the Associate State Services Commissioner. Ms Power’s file note of the contact on 22 June 2017 records, inter alia:
Brendan and we agreed was not going to tell his Minister as it would be inappropriate to do – operational matter but that under the no surprises convention he should once a decision was made.
[43] Mr Boyle then received an updating memo on 28 June 2017, outlining the standard response for similar situations and setting out recommendations for an appropriate approach in Mr Peters’ case. Once Mr Boyle had reviewed Mr Peters’ file and the application form, he approved a process memo on 3 July 2017 which recommended that the matter be given priority, and that Mr Peters be interviewed by a regional director or area manager. It was also proposed that the interview be offsite (but ultimately, Mr Peters did not request that).
[44] The outcome of Ms Nugent’s meeting with Mr Peters on 26 July 2017 was reported back to Mr Boyle the same day. He advised Ms Power of the decision.
[45] Mr Boyle then decided to brief his Minister, Ms Tolley. He considered that, while the information involved information personal to Mr Peters, under the ‘no surprises’ principle he should brief the Minister.
[46] Mr Boyle briefed Minister Tolley (alone) on 31 July 2017, after their regular weekly meeting. Mr Boyle made two notes following that meeting. First, a brief handwritten note confirming he had:
– advised of issue, background, followed sequence
– advised 18 k
– advised $ repaid
– ‘no surprises’ advice following advice from SSC [privilege claimed].
[47] Mr Boyle then made a handwritten file note that he typed up later that day, which concluded a note that he undertook to follow up with Minister Tolley with a brief memo outlining resolution of the issue. Mr Boyle accepted in evidence that the note was not entirely accurate. He said that, in preparing his evidence and after having
seen Ms Tolley’s answers to the interrogatories, he had thought more closely about it. He said he believed the correct position was that he had offered to follow the oral briefing with a written briefing but the Minister had indicated she wanted to think about whether that was necessary.
[48] Later on 31 July 2017, Mr Boyle contacted Ms Power and advised her he had briefed his Minister. Ms Power told him the SSC would brief their Minister.
[49] Ms Tolley subsequently advised she did want a written briefing. The written briefing was prepared and dated 15 August 2017. Mr Boyle delivered the briefing to the Minister that day.
Mr Hughes’ involvement
[50] Mr Hughes gave evidence regarding his involvement in the matter and his briefing of Minister Bennett. Mr Hughes recognised the personal nature of the information and the potential political sensitivity. Mr Hughes and his deputy, Ms Power, ensured they were the only people to know about the issue within the SSC.
[51]Mr Hughes confirmed the sequence of events from the SSC’s perspective was:
·22 June 2017 – Mr Boyle contacted Ms Power. Ms Power confirmed that the MSD should ensure it controlled the information and that Mr Peters received the same treatment as any other person. It was agreed Mr Boyle’s Minister would not be informed until a decision was made by the MSD about what to do about the overpayment.
·29 June 2017 – Ms Power gave some feedback on a draft report. Mr Hughes was not involved.
·Mid-July 2017 – Ms Power spoke to the Solicitor-General.
·26 July 2017 – Mr Boyle advised Ms Power that Mr Peters had been interviewed by MSD staff and had been very co-operative. Mr Boyle was expecting a report within the next week.4
·31 July 2017 – Mr Boyle advised Ms Power that he had informed his Minister about the case. The MSD’s decision had been to raise a debt and nothing more. Mr Boyle advised he was satisfied that was the correct course of action and consistent with other decisions. Ms Power informed Mr Boyle the SCC would now brief their Minister, which they did the next day.
The Ministers’ involvement
[52] Both Ms Bennett and Ms Tolley gave evidence. Ms Bennett confirmed that she was briefed by Mr Hughes and Ms Power on 1 August 2017 regarding the payment irregularity.
[53] Ms Bennett said she agreed with Mr Hughes’ advice it was not appropriate for the matter to be reported to Cabinet. She was advised by either Mr Hughes or Ms Power that the MSD was also briefing their Minister, Ms Tolley, on the matter. Ms Bennett saw Ms Tolley within a few days of the briefing. Her recollection was that the meeting was in a corridor around a lift in the Beehive. There was no-one else around at the time. They had a very short conversation in which they each confirmed they had been briefed by their officials. Ms Tolley also told her she had told the Prime Minister’s chief of staff. They agreed there was nothing more that needed to be done about the matter.
[54] Ms Bennett said that she did not discuss the matter of Mr Peters’ overpayment with anyone else until 26 August 2017. She confirmed she had no involvement with the phone call to Newshub on 23 August 2017 or to the other reporters.
[55] Ms Bennett explained her disclosure of Mr Peters’ payment irregularity on 26 August 2017 in the following way. At around this time, in August 2017, Ms Bennett,
4 By the time Mr Boyle rang Ms Power on 26 July 2017, Ms Nugent had made her decision, although, that decision is not recorded as having been passed on at that time
was herself, the subject of untrue allegations about her personal life prior to becoming a Member of Parliament. She had advised her senior colleagues, including the Prime Minister at the time, Mr English, about the allegations so they were aware of them. On 26 August 2017, Mr Murphy, of Newsroom, published a series of tweets, including one that referred to a “mother of all scandals”.
[56] Mr English and Ms Bennett spoke on 26 August 2017, after Mr Murphy’s tweets. Mr English was concerned about Ms Bennett and the potential for the story Mr Murphy was referring to, to be about the untrue allegations concerning her. Ms Bennett said she told Mr English she thought the story was going to be about Mr Peters, not her. She then disclosed that she had been told Mr Peters had been overpaid NZS but had paid it back. She believes that discussion would have taken place either in the afternoon or the evening of 26 August 2017. The conversation was obviously after Mr Murphy had published his tweets and after both Newshub and Newsroom had received the phone calls alerting the media to Mr Peters’ issue. She also had a conversation with Mr Joyce on 26 August 2017. The same issue was discussed.
[57] Ms Bennett’s evidence that she had not disclosed Mr Peters’ payment irregularity other than in the brief discussion with Ms Tolley (who had been advised of it previously) and then in her discussions with Mr English and Mr Joyce on 26 August 2017, was not challenged.
[58] Mr Henry, counsel for Mr Peters, put to Ms Bennett that the disclosure of Mr Peters’ information may have been politically motivated. Ms Bennett did not necessarily agree that it was politically motivated because as she said, she just did not know. Ms Bennett accepted the obvious proposition that the greater the number of people who knew, the greater risk that confidential private information had of being leaked.
[59] Ms Tolley also gave evidence. She confirmed that, at the end of the weekly agency meeting with Mr Boyle and other senior Ministry officials on 31 July 2017, Mr Boyle told her that he had a matter he wanted to brief her on alone.
[60] Ms Tolley recalls Mr Boyle saying the briefing was necessary because of the unusual circumstances regarding the recent controversy over Metiria Turei. On 16 July 2017, the media had reported that Ms Turei, the co-leader of the Green Party of Aotearoa New Zealand (Green Party), had publicly announced that when she was a beneficiary she had lied to the MSD in order to receive a larger benefit payment than she was otherwise entitled to. Mr Boyle then briefed Ms Tolley on the substance of Mr Peters’ matter. She cannot recall being told the quantum of the overpayment but accepted that, as Mr Boyle’s file note refers to briefing her on the approximate amount, it was likely he did tell her the figure.
[61] Towards the end of the briefing, Mr Boyle asked her if she wanted a written briefing. She said she might take some advice about that and come back to him on the point. Following the briefing, Ms Tolley spoke to her senior adviser at the time, Mr Harvey, and advised him what Mr Boyle had told her. She told him the information was to be kept in absolute confidence. Ms Tolley explained that the main reason for discussing the matter with Mr Harvey was to get his advice on whether she should ask for a written briefing. They agreed that Ms Tolley should speak to the Prime Minister’s chief of staff, Mr Eagleson, to seek his view on the point. Following the caucus meeting on 1 August 2017, Ms Tolley spoke to Mr Eagleson and asked for his advice. Mr Eagleson said he would think about it and get back to her. When he did, he said it was Ms Tolley’s decision whether to get the briefing in writing or not.
[62] When Ms Tolley returned home to Ohope at the end of the week, she also mentioned the briefing to her husband in order to seek his advice on whether she should get a written briefing. Ms Tolley has absolute confidence in her husband’s ability to keep such matters confidential. She does not remember how much detail she gave him as her focus was on whether she should request a written briefing. She also reviewed the Cabinet Manual 2017. Ultimately, she decided she would ask for a written briefing, which she did at the next agency meeting during the week of 7 August 2017. Mr Boyle subsequently provided the written briefing on 15 August 2017.
[63] Ms Tolley confirmed the brief discussion that Ms Bennett referred to. She recalls it occurred at a lift in the Beehive as Ms Bennett was getting out and Ms Tolley was getting in.
[64] Ms Tolley said that her sister was the only other person she mentioned the matter of Mr Peters’ overpayments to. That was on 26 August 2017, following a lunch in Queenstown and while walking back to the car. It was a brief and off-the-cuff response to a glowing comment her sister had made about Mr Peters. Ms Tolley said he was not as great as her sister thought and had been receiving a single superannuation payment when living with his partner. It was a general statement without any detail. Ms Tolley said she regretted making that unguarded statement. Ms Tolley confirmed that she did not make the phone calls to the news outlets and did not have any involvement in them. She had no knowledge of who made them.
[65] Again, Ms Tolley was not directly challenged on her evidence that she had not disclosed the matter other than in the circumstances outlined.
[66] In closing, Mr Henry accepted that the Ministers’ evidence they did not leak the information was unchallenged. He conceded on behalf of Mr Peters that, in relation to all causes of action insofar as they related to Ms Bennett and Ms Tolley, the claim for damages could not be pursued, although a declaration was still sought.
The evidence of the subpoenaed witnesses – disclosure to the media
[67] Ms Reid is a journalist working with Tim Murphy of Newsroom. She gave evidence under subpoena. Ms Reid confirmed that an anonymous person rang her during August 2017. The caller said there had been a substantial overpayment of NZS over a period of time in relation to Mr Peters and that it was to do with whether he was single or whether he was in a partnership with someone. Ms Reid was not clear if the source mentioned an amount. The source also told her that they had talked to TVNZ and to Newshub. Ms Reid confirmed she spoke to Mr Murphy the next day. Mr Murphy has sworn an affidavit in related proceedings confirming his discussion with Ms Reid occurred on 26 August 2017. On that basis, Ms Reid accepted she would have received the phone call on 25 August 2017.
[68] Ms Lynch was also called by the plaintiff. Ms Lynch is a political reporter working for Newshub. She confirmed that on 23 August 2017, she received an anonymous phone call regarding Mr Peters. The caller outlined that Mr Peters had been overpaid NZS. The caller explained that it had been discovered when his partner
applied for superannuation and that there was a large repayment to the tune of $18,000. Ms Lynch’s notes made at the time recorded the source said that Mr Peters was “lying applied as a single”.
[69] Mr Harvey was also called by the plaintiff under subpoena. Mr Harvey confirmed that, the day after the discussion he had had with Minister Tolley about the payment, which was on 31 July 2017, he disclosed the details to Ms Murchison, the Minister’s press secretary. He explained that he did so because there was a collaborative working style within the Minister’s office.
[70] Mr Harvey confirmed that about three and a half to four weeks later, as part of a wider discussion in relation to superannuation, he informed another Ministerial adviser colleague, Mr Oldfield, about the information the Minister had disclosed to him in the briefing.
[71] Ms Murchison was also called by the plaintiff. She confirmed that Mr Harvey had told her about the issue. As the Minister’s press secretary, she confirmed that if the Minister had been asked for comment on the matter, in her experience, the response would be “No comment, that it was an operational matter and should be referred to the Ministry”.5
[72] Mr Soper was also called by the plaintiff. Mr Soper is an experienced political journalist. He said that the matter of Mr Peters’ overpayment had been brought to his attention, in confidence, prior to Mr Peters’ press statement. He attempted to establish the veracity of the claim but was unable to do so.
[73] Mr Soper was of the view the disclosure was politically motivated. In response to Mr Henry’s question of whether it was someone involved in the political world, the New Zealand National Party (National Party), Mr Soper said he had been on record as saying in written columns where he believed the leak came from. He considered the information was deliberately made public to damage Mr Peters’ election prospects. He considered it was an attempt by Mr Peters’ political opponents to damage his
5 I note that is actually how the Minister subsequently dealt with the matter when it was raised with her.
credibility and to do what the Prime Minister obviously wanted, which was to “cut out” the middleman, namely New Zealand First (NZ First).
[74] Mr Henry sought to qualify Mr Soper as an expert under s 26 of the Evidence Act 2006. Mr Soper confirmed that he had read and would comply with the applicable code of conduct for expert witnesses. I accept that Mr Soper is a very experienced political journalist and can give expert opinion evidence about certain aspects of journalism and how best to deal with the media. However, to be admissible, Mr Soper’s opinion evidence must also be likely to provide substantial help to the Court in understanding other evidence or in ascertaining any fact of consequence to the proceeding.6 It must also be his expert opinion based on established facts.7
[75] With respect to Mr Soper, his evidence that, in his opinion, the information was deliberately leaked as an attempt by Mr Peters’ political opponents to damage his credibility and to do what the Prime Minister wanted, which was “to cut out the middleman”, namely NZ First, is speculative. It is not the opinion of an expert based on established fact. Without direct evidence of the original source of the disclosure, Mr Soper’s opinion is speculative. Mr Soper’s opinion that it must have been a political opponent (and inferentially) someone from the National Party or a National Party supporter lacks a proven factual basis. It does not satisfy the requirement for admissibility as expert opinion evidence. Even if it was generally correct that the disclosure was politically motivated, it may not have been disclosed, for example, by a National Party member or supporter. It could also have been disclosed by a Green Party supporter aggrieved at the public backlash against Ms Turei following her disclosure of fraud.
[76] None of the journalists, including Mr Soper, were prepared to disclose their sources. They invoked the protection of s 68(1) Evidence Act. I was not asked to make an order under s 68(2) and was not in any event, provided with evidence to satisfy me that the criteria in that subsection were satisfied.
6 Evidence Act 2006, s 25(1).
7 Section 25(3).
The defendants’ expert
[77] The Crown defendants called Sir Maarten Wevers to give expert opinion evidence on a number of topics.
[78] Sir Maarten gave background evidence of the overview of the Westminster system of Government, and the relationship between Ministers and the Cabinet Manual, the public service, and chief executives before he discussed the issue of the briefings in this case.
[79] Sir Maarten considered the briefings of their Ministers by the SSC and MSD were justified in this case on the basis of the ‘no surprises’ policy.
[80]I return to the issue of the briefings and the ‘no surprises’ policy later.
Tort of privacy
[81] The Court of Appeal confirmed the tort of invasion of privacy as an actionable tort in New Zealand in Hosking v Runting.8 In that case, Gault and Blanchard JJ described the elements required to make out the tort as:9
(a)the existence of facts in respect of which there is a reasonable expectation of privacy; and
(b)publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
[82] There is some debate about the need for the publicity of the private facts to be considered highly offensive as a separate element. Gault J explained the rationale for that requirement on the basis that the tort should only protect:10
… publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned.
8 Hosking v Runting [2005] 1 NZLR 1 (CA).
9 At [117].
10 At [126].
[83] Tipping J approached the matter in a slightly different way. He preferred that the question of offensiveness be controlled within the need for there to be a reasonable expectation of privacy in the first place and that the qualifier should be a substantial level of offence.11 In Rogers v Television New Zealand Ltd, Elias CJ (with whom Anderson J agreed) considered the Court should reserve its decision in relation to the structure of the tort, in particular in relation to the requirement for the publicity to be highly offensive.12
[84] It is interesting that in Campbell v MGN Ltd, the House of Lords unanimously rejected the proposition that it was necessary to consider whether the publicity would be highly offensive in an action for the wrongful disclosure of private information.13 As Lord Hope put it:14
If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. So there is normally no need to go on and ask whether it would be highly offensive for it to be published. …
[85] The basis of the right to privacy recognised in the United Kingdom is art 8 of the European Convention on Human Rights, as introduced into English law by the Human Rights Act 1998:15
'1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
[86] The United Kingdom authorities recognise that the right to privacy under art 8 must be balanced against the right under art 10 which confirms that everyone has the
11 At [256].
12 Rogers v Television New Zealand Ltd [2007] NZSC 91, [2008] 2 NZLR 277 at [26]–[27].
13 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.
14 At [96].
15 Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch), [2019] 2 All ER 105 at [227].
right to freedom of expression. Where the two rights potentially are in conflict the Court has to carry out a balancing exercise.16
[87] As the United Kingdom cases concern different criteria and involve this balancing exercise of competing rights, New Zealand authorities have recognised the need for caution when applying them.17 But, the first issue in the United Kingdom is still whether the plaintiff had a reasonable expectation of privacy in relation to the information published. To that extent, the first issue involves consideration of the same matters relating to the first element of the tort in New Zealand as defined by the Court of Appeal.
[88] For present purposes, this Court must apply the two elements identified by the majority in Hosking. Before considering whether those elements of the tort are made out in this case, it is necessary to briefly consider the torts relationship with the Privacy Act 1993 and with the tort of defamation.
Privacy Act 1993
[89] The Privacy Act establishes certain principles with respect to the collection, use and disclosure by public and private sector agencies of information relating to individuals. In particular, principle 11 confirms the limits on disclosure of personal information.
[90] Information collected by the MSD concerning Mr Peters’ application for NZS and the subsequent investigation into the overpayments is Mr Peter’s personal information and would be protected by the provisions of the Privacy Act. The MSD and other agencies into whose hands that private information came into were bound by the provisions of the Privacy Act.18
16 McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 at [11].
17 Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 (HC) at [37].
18 Agency is defined in the Privacy Act 1993, s 2.
[91] The Cabinet Manual has a specific section dealing with the Privacy Act. It confirms Ministers and their departments are responsible for compliance with the Privacy Act when they collect, use or disclose information concerning individuals.19
[92] Mr Gray QC, counsel for the first and third defendants, submitted personal information for the purposes of the Privacy Act is of a far broader ambit than the personal information protected by the tort of privacy. He argued that while the MSD and Ministers had obligations under the Privacy Act as to how to treat Mr Peters’ personal information, that did not of itself automatically give rise to the corresponding duty at common law to keep the information private. I agree. The obligations on Ministers and others under the Privacy Act do not assist this Court when determining whether Mr Peters can make out his claim in this proceeding. The elements of the tort raise quite separate considerations which must be established if the tort is to be made out.
Defamation
[93] Next is the tort of privacy’s relationship with the tort of defamation. It was obvious from Mr Peters’ case that he (understandably) took particular objection to the note Ms Lynch had made of her informant’s description of Mr Peters as “lying” in relation to his application for NZS. The unknown source who made the allegation Mr Peters was lying would, if identifiable, be open to a claim for defamation by Mr Peters. That, however, is not the basis of Mr Peters’ claim in this case. Mr Peters argues that the tort of privacy applies because the defendants breached his reasonable expectation that details of the payment irregularity (which, as defined, is limited to the investigation into the overpayment and there is no suggestion he was lying) would be kept private and the publicity of those facts would be considered highly offensive to an objective reasonable person.
19 Cabinet Manual 2017 at [8.71]–[8.74].
A reasonable expectation of privacy
[94] I return to consider the first requirement, namely, whether the payment irregularity involved private facts about which Mr Peters had a reasonable expectation of privacy.
[95]In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,
Gleeson CJ described a private fact in the following way:20
[42] … Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. …
[96] In X v Persons Unknown, Eady J expressed the test as whether the case involved:21
… [t]he sort of information which most people would reasonably expect to be able to keep to themselves, …
[97] Mr Gray submitted that the information disclosed, namely of a payment irregularity as defined by Mr Peters, was not intensely personal information as in the cases of P v D, Peck v United Kingdom, or Henderson v Walker.22 He sought to contrast the information in those cases with the disclosure of Mr Peters’ payment irregularity.
[98] In P v D, the information in issue concerned P’s mental health. Peck v United Kingdom concerned CCTV footage which captured Mr Peck walking down a road with a knife. He subsequently attempted to commit suicide by slitting his wrists with the knife. In Henderson v Walker, the information included emails between Mr Henderson and his wife, regarding issues in their marriage; emails with friends discussing relationships; and communications with health and legal advisers. There were also photographs. All three cases involved intensely private information.
20 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at [42].
21 X v Persons Unknown [2006] EWHC 2783 (QB), [2007] 1 FLR 1567 at [23].
22 P v D [2000] 2 NZLR 591 (HC); Peck v United Kingdom (2003) 36 EHRR 719 (ECHR); and
Henderson v Walker [2019] NZHC 2184.
[99] Mr Gray argued that information about the payment irregularity was not so intensely personal and nor did it involve personal financial information. It was information about Mr Peters’ statutory entitlement to receive NZS. NZS is not income tested. No information relating to Mr Peters’ personal finances was disclosed. The fact Mr Peters may have received more than the prescribed applicable rate could not reasonably be said to attract the same level of protection as information about a person’s income or taxes.
[100] Ms Casey QC, counsel for the second and fourth defendants, also submitted that the facts at issue in the present case were not private facts. She referred to the factors identified in Murray v Express Newspapers Plc and applied them to Mr Peters’ case:23
(a)the nature of the information – it was straightforward, concise, factual information. It was not truly humiliating and distressful or otherwise harmful;
(b)the attributes of the claimant – Mr Peters is a prominent politician who had received an overpayment of public funds, in Ms Casey’s submission, following a provision of incorrect information;
(c)the nature of the activity – the context was Mr Peters’ receipt of publicly funded NZS;
(d)whether consent should be inferred – Mr Peters consented to the use of his relevant personal information in the administration of his benefits under the New Zealand Superannuation and Retirement Income Act 2001;
(e)the effect on the complainant – there was no particular evidence of an effect on Mr Peters of the disclosure of the information to Ms Tolley or Ms Bennett;
23 Murray v Express Newspapers Plc [2008] EWCA Civ 446, [2009] Ch 481.
(f)circumstances and purposes for which the information came into defendants’ hands – Mr Boyle received the information as chief executive of the MSD. Mr Henry conceded that there was no complaint about the MSD and Mr Boyle raising the issue with the SSC; and
(g)nature and purpose of disclosure – the disclosure by Mr Boyle and Mr Hughes to their Ministers was, in the exercise of their judgment, the appropriate thing to do.
[101] In Ms Casey’s submission the first and particularly the last points were the key. She submitted Mr Peters could not have had a reasonable expectation that public agencies would not disclose the payment irregularity to the Ministers who held portfolio responsibilities. That submission, however, is more directly relevant to the issue of whether the disclosure in those circumstances would be considered highly offensive rather than to the first issue, whether the payment irregularity concerned facts in which Mr Peters had a reasonable expectation of privacy. In the Murray case itself, Sir Anthony Clarke MR made it clear that in the United Kingdom, it is only the first question that has to be asked in order to decide if art 8 is engaged.24 The second is more relevant to the balancing exercise.25
[102] Mr Henry submitted the information that Mr Peters had been overpaid NZS and was the subject of a MSD investigation was a fact in which he had a reasonable expectation of privacy about. He referred to the case of Richard v British Broadcasting Corporation.26 He submitted the Court should take a similar approach to the High Court of England and Wales in the way it dealt with the publicity about the police investigation into Sir Cliff Richard.
[103] In Richard v British Broadcasting Corporation, Sir Cliff’s home was searched in connection with allegations of historic sex offending. The fact of the investigation had previously come to the attention of a BBC reporter, and before Sir Cliff knew about it. The BBC also received advance notice of the search and gave prominent
24 Murray v Express Newspapers Plc, above n 23, at [48]–[49].
25 At [48]–[49].
26 Richard v British Broadcasting Corporation, above n 15.
coverage to it, both as it was happening and after. No charges were ultimately brought. The Court held that, as a starting point, Sir Cliff had a reasonable expectation of privacy in respect of the fact of a police investigation into historical sexual offending.27 The expectation could be displaced for legitimate operational reasons.
[104]Ultimately, Mann J concluded:28
[248] It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached. It is, as a general rule, not necessary for anyone outside the investigating force to know, and the consequences of wider knowledge have been made apparent in many cases (see above). If the presumption of innocence were perfectly understood and given effect to, and if the general public was universally capable of adopting a completely open- and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards (assuming no charge) then the position might be different. But neither of those things is true. The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how often one says it should not. This was acknowledged in Khuja v Times Newspapers Ltd [2017] UKSC 49 , [2017] 3 WLR 351 , [2018] 1 Cr App Rep 1 (the PNM case re-named in the Supreme Court). The trial judge had acknowledged that some members of the public would equate suspicion with guilt, but he considered that members of the public generally would know the difference between those two things (see para [32]). Lord Sumption was not so hopeful. He observed (at [34]):
'Left to myself, I might have been less sanguine than he was about the reaction of the public to the way PNM featured in the trial.'
[105] While I accept the MSD inquiry and investigation into Mr Peters’ entitlement to NZS is quite different to a police investigation into an alleged crime, the fact Mr Peter’s had been overpaid NZS and that the MSD had carried out an investigation into the overpayment was a sufficiently private fact. It is the investigation in particular which carries the potential for stigma. Mr Peters had been overpaid a significant amount of public money which he was not entitled to. The investigation was to determine if the overpayment was as a result of a mistake or if there had been a deliberate attempt to mislead, which could have led to a prosecution. In my judgment, Mr Peters had a reasonable expectation that the fact of the payment irregularity would be kept private, to the extent it would not be disclosed other than for a proper purpose
27 Richard v British Broadcasting Corporation, above n 15, at [248].
28 At 248.
and/or would not be disclosed to parties who did not have a genuine need to know about it.29
[106] The MSD staff and management dealing with the issue had a genuine need to know about it to deal with the review and investigation. The issue is how much further the information could properly be disclosed. Private facts may be known to some people, but not to the world at large.30 In my judgment, Mr Peters had, and was entitled to have, a reasonable expectation the payment irregularity would not be disclosed to the media and through them, the public at large.
[107] There is a difference between the fact that Mr Peters, having reached the age of 65, had applied for NZS, which I agree would not have the necessary degree of privacy, and the fact that he had been overpaid and that his application for NZS was being investigated by the MSD, which does. Most reasonable New Zealanders would regard the fact the MSD was looking into their application for a benefit or NZS as a private matter and not one that could be disclosed to the media or made public.
[108] Mr Peter’s reasonable expectation that the payment irregularity would be kept private must be contextual. It is not absolute. It must take into account that there are some parties who it was necessary or appropriate to disclose the information to. As noted, that includes a number of people within the MSD involved directly in the review and investigation. It also extends to disclosure to the chief executive of the MSD and from him to the chief executive of the SSC as Mr Henry conceded in opening.
[109] Both Mr Boyle and Mr Hughes accepted that the payment irregularity involved information personal to Mr Peters. Further, the steps taken by senior MSD staff to “lock down” the file and ensure limited disclosure of it and Mr Hughes’ restriction of the information within SSC to Ms Power and himself confirms, and is supportive of, an acceptance by them that Mr Peters could reasonably expect that the payment irregularity would not become public knowledge.
29 See the reference to a “genuine interest in knowing” in ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [79], albeit in a different context.
30 Hosking v Runting, above n 8, at [119].
[110] This is not a case where it could be said that an expectation of privacy which otherwise might have been reasonable has been lost by reason of culpability on Mr Peters’ part.31 For the reasons given above, I do not accept Ms Casey’s submission that he was solely responsible for the issue because he provided incorrect information. There were a number of reasons, not all attributable to Mr Peters, why the application form was processed on an incorrect basis.
[111] Further, while Mr Peters may have consented to the MSD “accessing his private information for the purpose of dealing with and investigating the matter”, he did not consent to it being released more publicly and certainly not to the media.
[112] Mr Peters’ situation can be contrasted with that of Ms Turei. Ms Turei voluntarily and deliberately disclosed her fraud. She sought publicity about it for her own political purposes. Mr Peters’ actions were not fraudulent and he reasonably expected that details of the payment irregularity would be kept private.
[113] Mr Gray also submitted that it was relevant to consider Mr Peters’ public status as a politician of many years’ experience. He was first appointed as Cabinet Minister in 1990. He is the leader of a political party. Where a person is a public figure, the reasonable expectation of privacy will correspondingly be reduced as their public status increases.32
[114] Mr Gray referred to the case of AAA v Associated Newspapers Limited.33 In that case, the claim for invasion of privacy was brought on behalf of a young girl after journalists had published articles and covertly taken photographs of her. The articles speculated her father was a prominent elected politician. While accepting the information as to the girl’s paternity was private to her, the High Court of England and Wales considered there was a proper public interest in the professional and private life of the supposed father and the alleged recklessness of his behaviour in conducting extramarital affairs.34 That behaviour was relevant to his professional and personal
31 Andrews v Television New Zealand Ltd, above n 17, at [42] and [46]–[47].
32 Hosking v Runting, above n 8, at [121].
67 Hosking v Runting, above n 8.
68 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. See also the helpful review of New Zealand cases in Henderson v Walker, above n 22.
[270] Relevant consideration from overseas cases are Mosley v News Group Newspapers Ltd.69 Mr Mosely was awarded £60,000 for breach of confidence (not privacy) involving a publication of two articles in the News of the World, concerning his participation in a sadomasochistic orgy. The articles included photographs and video footage obtained through surreptitious recording by one of the other participants. The articles inaccurately alleged the orgy involved an enactment of Nazi behaviour and mocked victims of the Holocaust.
[271] In Gulati v MGN Ltd, the Court of Appeal of England and Wales, upheld awards of between £72,500 and £260,250 for misuse of private information following the hacking of phones of several famous individuals by newspapers.70 The information included that an actor intended to leave a long running television series; one of the individuals had taken legal advice on a possible divorce; one was having an affair; and the location of another’s wedding venue which they had wanted kept secret. The scale of damages was justified by the length, degree and frequency of the hacking as well as the extent of the publication of the articles which followed. The Court of Appeal upheld the trial Judge’s decision to award a component of damages for the invasion of privacy itself in addition to the damages for distress caused, explaining:71
… Damages in consequence of a breach of a person’s private rights are not the same as vindicatory damages to indicate some constitutional right. In the present context, the damages are an award to compensate for the loss or diminution of a right to control formerly private information and for the distress that the respondents could justifiably had felt because their private information had been exploited, and are assessed by reference to that loss.
[272] As the Court of Appeal emphasised, the focus is on the hurt and distress caused to the plaintiff.
[273] The defendants point to the fact Mr Peters initially publicised the matter himself and also refer to Mr Soper’s cross-examination in which he accepted that when asked in a television interview “How serious is this?” Mr Soper had answered “Oh, not serious at all”. For the reasons given above, I consider Mr Peter’s hand was forced
69 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB).
70 Gulati v MGN Ltd [2015] EWCA Civ 1291, [2017] QB 149.
71 At [48].
in the circumstances and his press release was an appropriate attempt to mitigate the potential harm that he faced from an uncontrolled release of the information.
[274] Mr Soper explained his answer on the basis that he was not saying it was not serious. Politically it was very serious, but what he was saying is that the oversight in payment was not that serious as the money had been repaid. Later in the same interview when asked “Where to from now, how politically damaging could this be?” Mr Soper answered “I don’t think politically damaging at all”. Again, Mr Soper sought to qualify that answer by noting that that statement had been made the day after Mr Peters’ statement and the firestorm had not actually begun at that stage.
[275] Mr Peter’s private information about the payment irregularity should not have been disclosed to the media. The deliberate disclosure of that private information to the media sources caused Mr Peters harm and distress, but ultimately it was mitigated by the actions he took. In the circumstances, if Mr Peters could have identified who disclosed his private information to the media then damages in the region of $75,000 to $100,000 in total might have been appropriate. This was a deliberate breach of his privacy with the intention of publicly embarrassing him and causing him harm.
Summary/result
[276] Mr Peters had a reasonable expectation that the details of the payment irregularity would be kept private and not disclosed to parties who did not have a genuine need to know about it or a proper interest in knowing about it. In particular, he had a reasonable expectation that the details of the payment irregularity would not be disclosed to the media.
[277] The deliberate disclosure of the details of the payment irregularity to the media would be regarded as highly offensive to an objective reasonable person.
[278] Mr Peter’s claim against all defendants fails as he is not able to establish that they were responsible for the disclosure of the payment irregularity to the media. He has conceded that neither Ms Bennett nor Ms Tolley were directly responsible for the disclosure to the media. Further, with the exception of the very general, unguarded
comment by Ms Tolley to her sister, the disclosures by the first and third defendants were for a proper purpose or otherwise to persons with a genuine interest in knowing.
[279] The disclosure by the fifth defendant to the SSC and by both the second and fifth defendants to their Ministers were, in the particular circumstances of this case, for a proper purpose and the Ministers had a genuine interest in knowing the details of the payment irregularity.
[280] The plaintiff is unable to rely on the doctrine of res ipsa loquitur in this case to make out a claim against any of the defendants, including the fourth defendant.
[281]The plaintiff’s claims for damages and declarations are dismissed.
Costs
[282] Costs are reserved. If counsel are unable to agree, costs will be dealt with on the papers. The defendants are to file memoranda by 22 May 2020, plaintiff to respond by 12 June 2020 and any reply to be by 19 June 2020.
Venning J
4