Privacy at a price

The Guardian, MediaGuardian 30 January 2006

Ask most journalists what the words ‘Carter-Ruck’ mean and they will either sigh wearily, or, perhaps more likely, conjure Private Eye’s legendary misspelling.  This is a firm renowned for its claimant work, and one which has endured plenty of criticism in recent years for its willingness to sue the media on a ‘no win, no fee’ basis.  So much for the stereotype, but at least one journalist is thanking the firm for keeping his business alive – and, into the bargain, fighting for freedom of expression.  Step forward Nick Stern, photographerand owner of picture agency First News Limited.  And step back the owners of Beckingham Palace, David and Victoria Beckham.

The Beckhams sued Stern’s company for harassment and infringement of privacy when photographs of a fort under construction in the grounds of Beckingham Palace appeared in the national press.  The celebrity couple are no strangers to legal claims to protect their privacy, despite a glamorous lifestyle that detractors suggest is largely possible thanks to the very media that they frequently sue.  But after more than a year of litigation – at the beginning of which they were demanding £75,000 damages – the Beckhams dropped their claim.  And, remarkably, Carter-Ruck represented Stern on a ‘no win, no fee’ deal.

“There is a common misapprehension that ‘no win, no fee’ deals are only available to claimants,” says Nigel Tait, the Carter-Ruck partner who handled Stern’s case.  “This simply isn’t the case.  Defendants – from newspapers to owners of photographic agencies and freelancers – can fight claims on a no win, no fee basis.  Having looked at the merits of the Beckhams’ claim, we were confident that Nick could win it.” 

Stern was also confident that he had a fair following wind before he began work on the story.  Now 41, he has been selling photographs for a living for over 10 years.  He works regularly with the red-tops, where he has a reputation for reliability and honesty, and set up First News in 2000.   In November 2004, he received a tip-off that the Beckhams were building an enormous fort in the grounds of their house for their children, but without the requisite planning permission.  He duly checked the facts with East Hertfordshire District Council, found that permission was necessary but had not been applied for, and hired a helicopter to photograph the works.

“I was confident that even if I was infringing the Beckhams’ privacy – which I doubted – my conduct would be covered by the public interest defence of exposing wrongdoing,” says Stern.  He had, indeed, encountered this scenario before, revealing in January 2004 that the Beckhams had built a private chapel, also without planning permission.  Stern had also sold various stories concerning the Beckhams and featuring the use of long-lens photography for many years – without complaint.  Moreover, on one occasion (a star-studded christening for sons Romeo and Brooklyn) Stern says that Victoria Beckham’s father expressly gave his consent for aerial photography.

On 26 November 2004, Stern took aerial photographs of the fort, which he sold to The News of the World.  The newspaper published the photographs, and the story was followed up by The Daily Mail and The Express.  The Beckhams were abroad when the photographs were taken, but promptly sued for harassment and a breach of their right to a private life under the Human Rights Act 1998.  Stern was flabbergasted.  “They weren’t even in England when I took the photographs, and have spent their career consenting to innumerable stories in which their private lives were only too willingly on show.  Many of those stories and pictures had come from me, and they had never once complained.”

Stern says that this was the first time he had ever been sued.  “The financial implications were horrendous,” he says, especially since the Beckhams chose not to sue any of the newspapers involved.  The convention that Fleet Street looks after its own would not apply – Stern was on his own.

Fortunately for him, Conditional Fee Arrangements (CFAs), or ‘no win, no fee’ deals, can be used for defendants as much as claimants.  Carter-Ruck entered into a CFA to represent Stern, meaning that if they lost the case, they, not Stern, were at risk on costs.  They swiftly made a commercial offer of £6,000, the equivalent of the licence fee (after deduction of costs such as helicopter hire) received by Stern.  The Beckhams pressed on regardless, with regular demands for substantial damages, but ten days ago accepted the original February 2005 offer. 

Thanks to the unusual alliance of Carter-Ruck, a CFA and a red-top photographer, the Beckhams’ decision to litigate has left them with a victory that is barely even pyrrhic, and a bill for almost all of Stern’s costs as well as their own.  One suspects, though, that while the case might persuade them that planning permission can be a good thing, it is unlikely to deter the owners of Beckingham Palace from their ongoing flirtation with the law of privacy.