About this case:

• Judgment:
  External link

Background

Former NAMA adviser, Mr Francis Cushnahan, commenced proceedings against the British Broadcasting Corporation (BBC); and Mr Jeremy Adams, Editor of BBC Northern Ireland’s current affairs programme Spotlight.

In the High Court, Mr Cushnahan sought an interlocutory injunction to prevent the BBC from re-broadcasting two episodes of Spotlight originally broadcast in 2016; or from broadcasting a third Spotlight programme.

The proceedings relate to publications by the BBC including the broadcast of two Spotlight programmes, namely:

Mr Cushnahan stated that both Spotlight programmes allege either that he was criminally corrupt or that he was reasonably suspected of such corruption.Alleged corruption

Mr Justice Stephens explained that the Spotlight programmes allege that Mr Cushnahan, whilst a member of the Northern Ireland Advisory Committee (NIAC) of the National Asset Management Agency (NAMA), was at the same time acting on behalf of and being paid by the purchaser of NAMA’s Northern Ireland loan portfolio and being paid by developers who owed money to NAMA.

In particular, it was alleged that one developer, Mr Miskelly, paid Mr Cushnahan £40,000 in cash in August 2012.

Mr Cushnahan’s application seeking an interlocutory injunction related to concerns that the BBC would re-broadcast aforementioned Spotlight programmes, or broadcast another programme (Spotlight Three) containing further material alleging that he was corrupt or is suspected of corruption.

The context in which Mr Cushnahan sought an interlocutory injunction was that the National Crime Agency commenced a criminal investigation into the sale by NAMA to Cerberus Capital Management for £1.241 billion of its loans to Northern Irish property developers. Mr Cushnahan is a suspect in that ongoing criminal investigation.

Mr Cushnahan asserted that he was entitled to an interlocutory injunction because any further broadcast by the BBC stating that he is corrupt or is suspected of corruption would be a contempt of court.

Notably, Mr Cushnahan did not sue for defamation.

The defendants applied under Order 18 Rule 19(d) of the Rules of the Court of Judicature (Northern Ireland) 1980 to strike out Mr Cushnahan’s action because its institution and or its continuation amounts to an abuse of the process of the Court. It was contended that, in reality, Mr Cushnahan’s claim was for the protection of his reputation and was brought on grounds other than defamation as an improper attempt to circumvent the rule in Bonnard v Perryman 2 Ch. 269.

Contempt of Court

Firstly, Justice Stephens explained that Mr Cushnahan did not have the consent of the Attorney General under s.7 of the Contempt of Court Act 1981 to make a claim for statutory contempt – therefore this part of Mr Cushnahan’s claim was struck out.

Furthermore, Justice Stephens refused Mr Cushnahan’s application for an interlocutory injunction based on anticipated contempt of Court under the 1981 Act, and under common law contempt.

Article 6 ECHR

Considering if the BBC was a public authority and if the court could issue an injunction relying on the Human Rights Act 1998, article 6 ECHR together with section 91 of the Judicature (Northern Ireland) Act 1979 – Justice Stephens was not satisfied that this could be established in relation to its journalism and editorial decisions.

In any event, Justice Stephens found that there was not a substantial risk that due to this pre-trial publicity, the course of justice would be seriously impeded or prejudiced

Misuse of private information

Considering the misuse of private information and relying on Mosley v Newsgroup Newspapers Ltd EWHC 1777 and JR 38 AC 1131, Justice Stephens summarised the propositions of law as:

a) The Human Rights Act 1998 and the European Convention on Human Rights: on the facts of this case, the relevant values are expressed in Article 6, 8 and 10 of the ECHR.

b) A claim in tort when not against a public authority considering King v Sunday Newspapers Limited NICA 8

c) Reasonable expectation of privacy which must be established by the plaintiff in relation to the subject matter of his complaint, see In Re JR 38.

d) A balancing exercise of competing ECHR rights in the light of an “intense focus upon the individual facts of each case”

e) Section 12 of the Human Rights Act 1998 which requires the court to pay particular regard to the rights of others in accordance with Article 10(2) including the rights under Articles 6 and 8.

Declining to grant an interlocutory injunction on the grounds of misuse of private information, Justice Stephens stated that the “nub” of Mr Cushnahan’s claim was for the protection of reputation; as such, Mr Cushnahan could not avoid the restrictions set out in Bonnard v Perryman.

Harassment

Mr Cushnahan was covertly recorded by the BBC; a course of conduct which involves having a person watched is capable of amounting to harassment.

Considering Cream Holdings Limited and others v Banerjee and others UKHL 44, and Fulton v Sunday Newspapers Limited NIQB 100; Justice Stephens explained that Mr Cushnahan’s prospects of success were not “sufficiently favourable” and declined to grant an interlocutory injunction relying on the Protection from Harassment (Northern Ireland) Order 1997.

Data Protection Act 1998

Mr Cushnahan alleged that the Defendants had used audio and/or video recordings of or relating to Mr Cushnahan “obtained by the Defendant’s source John Miskelly unlawfully and in breach of section sections 18, 19 and 61 of the Data Protection Act 1998”.

Justice Stephens also declined to grant an interlocutory injunction on this basis.