Case Summary: Mullen v Lyles – Claimant Wins Appeal to Reinstate Privacy Claim

In the case of Mullen v Lyles ([2025] EWHC 645 (KB)) Fordham J allowed the Claimant’s Appeal against Deputy Master Marzec’s (“the Judge”) decision to strike out his Misuse of Private Information (‘Privacy’/’MPI’) claim.

Background

The Claimant brought a claim in defamation, privacy and data protection against his former friend and business associate on the basis of allegations made by the Defendant on WhatsApp and Instagram that accused the Claimant of sexually assaulting a man and a woman (anonymised as ‘KT’ and ‘LS’) at the 2022 Houghton Festival. The Claimant maintains that the allegations are provably false, owing to considerable evidence, including contemporaneous photographical evidence, screenshots of messages, and Instagram voice-notes, which he says demonstrate that KT and LS consented at the time to sexual interaction, and continued to interact socially with the Claimant after the festival. The Claimant says he can prove that the allegations began the day after he ended his business relationship with the Defendant and were made maliciously, as an angry reaction.

The Defendant accepts the meanings as defamatory, but asserts that the allegations are true and were made in the public interest and on occasion of qualified privilege. He denies making one of the three publications, says that he did not intend to publish a WhatsApp message and relies upon the very low number of third-party recipients of the message.

The Defendant applied to strike out the Claimant’s claim on the bases that (a) as to the defamation claim, he was bound to fail on serious harm; (b) as to the privacy claim, Article 8 was not engaged; (c) as to the data protection claim, the household exemption applied; and (d) it was a Jameel abuse of process (i.e. the damage caused was minimal, so would any vindication be minimal, and the costs of obtaining it disproportionate).

The Jameel abuse application was withdrawn before the strike-out hearing and the Judge dismissed the attempt to strike out the defamation claim on the basis of serious harm.

The Judge nevertheless held that both the privacy claim and data protection claim be struck-out. In striking out the data protection claim, she rejected the Defendant’s household exemption point, but held that it would be disproportionate for the data protection claim to continue to Trial given similar and better relief was available on similar facts in the defamation claim.

Striking out the privacy claim, the Judge held as follows:

The information that was communicated in all three publications was indisputably to the effect that [the Claimant] had committed a sexual assault. If that information is true, it is difficult to see how [the Claimant] can reasonably expect that other people will not communicate it or that the law will help him to conceal it. The fact that a person has committed a serious criminal offence is not generally a matter he or she is entitled to keep private or prohibit others including the victim or any witnesses) from disclosing. Moreover, the truth or falsity of that information is highly pertinent to whether it its dissemination is lawful. If [the Woman] has indeed been the victim of sexual assault, it would offend most people’s sense of what is right and would be an unjustifiable intrusion into her Article 10 rights, to prevent her informing other people what had happened to her. Similarly, if other people had witnessed an assault, they should be able to report what they had witnessed freely without fear of being sued in circumstances where the truth of what they have to say is irrelevant. These examples illustrate that in cases involving allegations of serious misconduct, truth, or at least good faith, is a highly relevant factor. In these examples, if the allegations made by [the Woman] or others are in fact false, [the Claimant] may well have a good claim in defamation, but he should not be permitted to use the legal process of prohibit people, on pain of sanction, from disclosing accurate information as to criminal misconduct.

The Claimant appealed on, inter alia, the basis that the Judge had erred in law by assuming at an interim stage the truth of the allegations, rather than taking the Claimant’s case at its highest, as well as by deeming the truth or falsity of the information as a “highly relevant factor”. In doing so, he relied on authorities including ZXC v Bloomberg LP [2022] UKSC 5 [2022] AC 1158 [111]; Mckennit v Ash [2006] EWCA Civ 1714 [2008] QB 73 [88]; and the guidance in The Law Of Privacy and the Media (pp.375, 377 and 394-395), all of which he said emphasised that it was a matter of established case law that truth or falsity is irrelevant to whether Article 8 is engaged, and that “judges should be chary of becoming side-tracked into that irrelevant inquiry. (McKennit [88])”. These authorities had not been before the Deputy Master given the Defendant’s application was limited to Article 8 engagement.

The well-established test for whether there has been misuse of private information has two stages. At stage one, the question is whether the claimant has a reasonable expectation of privacy in the relevant information; if so, at stage two, the question is whether that expectation is outweighed by the countervailing interest of the publisher’s right to freedom of expression.

The Defendant cross-appealed, proffering a new basis to permit the strike-out which was not found by the Judge nor argued below, which was essentially that the claim was bound to fail at Stage 2 when taking into account all the circumstances of the case (such as the well-established Murray factors).

The Appeal

Fordham J allowed the Claimant’s appeal. His reasoning included the following [40]:

1. There is no rigid exclusionary rule in a claim for misuse of private information that precludes an enquiry as to truth or falsity or the private information. Rather, there is a fact-specific Stage 1 enquiry and, if reached, a fact-specific Stage 2 enquiry;
2. The analysis had wrongly entailed a generalised conclusion about communicated information describing criminal conduct. This was grounded in a textbook example about criminal conduct;
3. In that context, the Judge was taken away from a fact-specific assessment of the Claimant’s case at its highest, which was that the Defendant’s description of his conduct was “clearly and obviously untrue”;
4. The Judge was concerned with the claims about allegations which “are in fact false”, where she thought the appropriate claim was “in defamation”, and MPI “should not be permitted”. But this was not a relevant consideration because it was not a case in which the Claimant was seeking an interim injunction and attempting to circumvent the rule against prior restraint [33].

Whilst the Court did not agree with the Claimant that truth or falsity is strictly irrelevant to Article 8 engagement, and identified some extreme examples wherein there exists “public criminal conduct” (e.g. taking part in a street riot [37-38]), the Claimant was nonetheless right to recognise that information about alleged criminal conduct which is said to be false can be the subject of a viable privacy claim depending on the facts of the case [41].

The Cross-Appeal

Fordham J dismissed the cross-appeal because [47]:

1. It missed out circumstances which were relevant – or potentially relevant – and which arose on the Claimant’s factual case, taken at its highest;
2. It was overly contentious (including for example characterisations of the Claimant’s conduct as “flaunting”); and
3. While plainly a factor to be taking into account, there is no “bright line” between conduct taking place in public and conduct taking place in private. Interaction with others in public could fall within a person’s private life and the cross-appeal had presupposed a pre-trial public/private bright line and asked the Court to predict at interim stage how that line would be factually decided.

Commentary

As always, applicants seeking to strike-out some or all of another party’s case face a high hurdle. The Court will always decide the application by taking the other party’s factual case put at its highest (unless contradicted by contemporaneous documents or there is no real substance to the assertions made). Taking this case at its highest, Fordham J was unable to say that the MPI claim is bound to fail and therefore should be struck-out. Rather, it required a fact-specific inquiry at a full trial to be undertaken in the light of the evidence and standing on the solid platform of findings of fact regarding relevant circumstances at Stage 1 and Stage 2 (if reached).

This Judgment is notable for being one of the first battle-tested decisions on the question of ‘false privacy’ since ZXC. That case went to the Supreme Court with the Defendant conceding the irrelevance of truth or falsity, so this case is illustrative of how the Courts will apply the relevant principles following ZXC. In coming to his conclusions, Fordham J has moved away from the rigid exclusionary rules suggested by some of the dicta, and emphasised the fact-specific nature of both Stage 1 and Stage 2 of the test for privacy.

This gives Judges in MPI claims great leeway.

In conclusion, and based on the judgment, it would appear that moving forward it will be extremely rare that a privacy claim can be struck-out just because it entails false information and covers similar ground to a defamation claim, especially where there remains in dispute key facts which pertain to the information, the way in which it was disseminated and how it came into the hands of the publisher.

By Moritz Schirmeister and Olivia Biggin, Senior Associate and Associate Solicitor at Thomson Heath Jenkins & Associates

Thomson Heath Jenkins & Associates specialise in all areas of media law, including defamation, misuse of private information, and data protection. Click here to find out more information.