IAN BRUCE HYNDMAN v ROBERT BRUCE WALKER [2021] NZCA 25

IAN BRUCE HYNDMAN v ROBERT BRUCE WALKER [2021] NZCA 25 [23 February 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA507/2019[2021] NZCA 25BETWEEN IAN BRUCE HYNDMANAppellantAND ROBERT BRUCE WALKERRespondentHearing: 10 September 2020Court: Miller, Clifford and Collins JJCounsel: J Moss and H M Weston for AppellantRJB Fowler QC and S B McCusker for RespondentJudgment: 23 February 2021 at 4.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The respondent is entitled to costs for a standard appeal on a band A basisplus usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The High Court dismissed Ian Hyndman's tort claim for invasion of privacy,finding that he had a reasonable expectation of privacy in certain privatecommunications but their disclosure by Robert Walker did not meet the highlyoffensive threshold designed to discourage trivial claims.1[2] In this appeal Mr Hyndman asks us to modify the elements of the tort byremoving the "highly offensive" requirement; alternatively, to find that, when the testis properly applied, Mr Walker's behaviour and the circumstances of his disclosurewere highly offensive and justify a declaration and a modest award of damages.[3] As we explain later, we consider this tort may well benefit fromre-examination, and the opportunity to re-examine it very seldom arises. But it is notpossible to remove the "highly offensive" requirement without reformulating the tort,and that is an exercise that courts must undertake with care having regard to thetreatment accorded to privacy generally in New Zealand law and the need to balancerights of privacy against those of free expression. This case does not engage the latterrights, and for that reason it is an unsatisfactory vehicle for the reform counsel haveasked us to undertake. Further, while Mr Walker's conduct merits condemnation,Thomas J rightly found that the alleged breach of Mr Hyndman's privacy was trifling.We also conclude that the claim would fail even if we were to adopt the more liberalformulation used in English law.[4] We turn to the circumstances of the alleged breach.The backgroundThe Henderson disclosure[5] We have drawn the facts from the judgment of Thomas J below and hercompanion judgment in David Henderson's successful claims against Mr Walker.2The facts are not now in dispute.[6] Mr Hyndman is a friend and business associate of Mr Henderson, an ambitiousbut unsuccessful and now bankrupt property developer whose companies, which it is1 Hyndman v Walker [2019] NZHC 2188 [High Court judgment], citing Hosking v Runting [2005]1 NZLR 1 (CA).2 Henderson v Walker [2019] NZHC 2184.convenient to collectively call PVL, were put into liquidation owing very large sumsto secured and unsecured creditors. PVL was put into liquidation in July 2010 but theliquidation was immediately stayed pending appeal and remained stayed until8 February 2012. Mr Walker is the liquidator. The liquidation has been highlycontentious and litigious. Thomas J began her judgment in Mr Henderson's case byremarking that it is an understatement to say there is bad blood between him andMr Walker. Mr Hyndman appears to have become involved by taking on directorshipsof some of Mr Henderson's companies.[7] From July 2010, Mr Walker set about his work by calling for records of PVL.Mr Henderson did not co-operate. Mr Walker alleged that various offences had beencommitted and took steps to have the police obtain and execute search warrants.Among the items seized when the warrants were executed on 8 April 2011 was a tapedrive holding a backup copy of PVL's server and a laptop belonging to PVL but usedby Mr Henderson. The police did not retain this material as they ought to have donebut gave it to Mr Walker, notwithstanding the liquidation had been stayed.[8] Shortly after Mr Walker delivered copies of seized documents to the SeriousFraud Office. He also told others, including the National Business Review, that heheld a great many emails and other evidence. He made those claims to a privateinvestigator, Wayne Idour, who had been engaged by Mr Henderson and is said to havefalsely claimed to be a representative of unsecured creditors. In a conversation withMr Idour in June 2011 Mr Walker spoke of Mr Henderson in derogatory terms andexpressed some doubt about his own rights to retain and share with others some of theinformation he held. He nonetheless said that Mr Idour could "fly to bloodyWellington and [he] can look at it".[9] The police subsequently did not commence prosecutions, and the warrantswere later declared unlawful. The liquidation remained stayed, but Mr Walker waspermitted to retain information and material that was the property of PVL. Thatproperty included the tape drive, which included a backup copy of the laptop.[10] The tape drive included documents of a private nature, which Thomas Jcategorised as:3(a) personal emails between Mr Henderson and his wife talking aboutissues in their marriage;(b) personal emails between Mr Henderson and his friends relating tomarital breakdowns, health, weight loss, and fitness;(c) emails relating to medical advice and ordering various medicalsupplements;(d) photographs of family, friends and pets;(e) emails to Mr Henderson from public figures (including politicians)seeking advice;(f) emails with legally privileged material, including in relation tocompanies of which Mr Walker was the liquidator; and(g) emails unrelated to the affairs of the companies of which Mr Walkerwas liquidator.[11] Over the period between 12 April and 22 September 2011 Mr Walker made atleast 11 distributions of this private information. He gave copies of the tape drive tothe Inland Revenue Department and he disclosed specific items to a number of otherpeople, including the Official Assignee, who had no colourable claim to PVL's orMr Henderson's information. This proceeding concerns just one of those disclosures,made to a Mr Garry Holden and one or two other people.Mr Walker's disclosure to Mr Holden[12] Following the lifting of the stay on the original liquidations, Mr Walker wasappointed liquidator of a further 15 PVL companies on 9 February 2012.Mr Hyndman was a director of these companies, having assumed office after personalbankruptcy disqualified Mr Henderson from holding that office.[13] Mr Walker subsequently provided private information of Mr Hyndman's toMr Holden, who had formed a relationship with Mr Hyndman's former de factopartner. Mr Holden had no interest in the affairs of PVL but he did harbour an intensedislike of Mr Hyndman, whom he harassed for about three years via abusive emails3 At [41].and text messages. Mr Holden's behaviour resulted in Mr Hyndman securinga restraining order against him in 2015.[14] It is necessary to explain with some care the origin and nature ofMr Hyndman's private information that Mr Walker disclosed to Mr Holden and that isat issue here.[15] On 22 July 2010 Mr Holden had sent Mr Hyndman an email containing whatthe Judge described as very personal information of Mr Hyndman.4 We woulddescribe the email as an abusive tirade which included a number of allegationsregarding Mr Hyndman's character. It appears it had been sent after Mr Hyndman hadcalled to speak to his former de facto partner. Mr Holden accused Mr Hyndman ofhaving been a controlling partner in his former relationship with her. Mr Holdenaccused him of childishness and of being a poor father, of being paranoid about him,and of being involved in "bizarre groups".[16] None of these allegations originated with Mr Walker and he was notresponsible for Mr Holden sending the email to Mr Hyndman. Mr Walker was not onnotice at the time that Mr Holden was, as he put it in evidence, "toxic" in his attitudetoward Mr Hyndman. Mr Hyndman's complaint against Mr Walker is not based onMr Hyndman's personal information contained in Mr Holden's 22 July email.[17] Rather, Mr Hyndman shortly afterwards forwarded Mr Holden's email toMr Henderson. Then, on 26 July, Mr Henderson emailed to Mr Hyndman a draft replyhe had prepared for Mr Henderson to send to to Mr Holden. The draft reply waswritten to mock Mr Holden. It contained few, if any, references to Mr Hyndman.Mr Hyndman described that email correspondence as a humorous exchange betweenhim and Mr Henderson.[18] The substantive content of that exchange was confined to Mr Holden's emailto Mr Hyndman and the proposed reply to Mr Holden drafted by Mr Henderson.Mr Hyndman chose not to send that proposed reply. The exchange of emails betweenMr Henderson and Mr Hyndman contained no other information of a private nature.4 High Court judgment, above n 1, at [97].[19] Mr Hyndman would appear to have become aware of the disclosure toMr Holden of the 26 July email when, on 22 September 2011, Mr Hyndman receiveda series of texts from Mr Holden. One of them claimed that "Wayne", apparentlymeaning Mr Idour, had obtained for Mr Holden copies of emails betweenMr Hyndman and Mr Henderson, and alleged that "[b]ack then you stated i was potsmoker and pokie addict, great emails". Mr Holden claimed that Mr Idour was nowworking for him. It will be recalled that Mr Idour was originally Mr Henderson'sagent, engaged to obtain information from Mr Walker.[20] The Judge found that through Mr Walker the draft email of 26 July 2010 hadbeen disclosed to Mr Holden.5 She did not find that Mr Walker disclosed it himself,and she noted his evidence that he cut ties with Mr Holden once he understood thelatter's behaviour. She found on balance that disclosure was indirect, perhaps byRyan Eathorne, who was an employee or contractor of Mr Walker's, giving it toGrahame Thorne, a former friend of Mr Henderson's who had fallen out with him overa water right, or to Mr Holden. She did not find that Mr Idour, who was unavailableto give evidence, was the conduit.[21] The Judge stated that she was willing to find that Mr Walker had disclosedother private communications to adversaries of Mr Henderson and Mr Hyndman.6She accepted that, while he was focused on Mr Henderson's business affairs,Mr Walker took some pleasure in sharing private information to which he had accesswith others whom he knew to be hostile toward Mr Henderson and Mr Hyndman. Butthe only other specific disclosures involved matters that were public in nature or didnot involve Mr Hyndman. And on appeal the 26 July email is the only specificdisclosure relied on by Mr Hyndman.[22] The Judge found that the 26 July email, to which was attached the 22 July emailfrom Mr Holden, was disclosed to two or three people. They presumably includedMr Holden and Mr Thorne. Mr Holden had obviously already seen the 22 July email.5 At [34]–[38].6 At [78] and [95].The High Court judgment[23] The Judge dismissed Mr Hyndman's claims for breach of confidence, invasionof privacy, misfeasance in public office, breach of statutory duty and contempt ofcourt. The appeal is confined to invasion of privacy, so we need not discuss the othercauses of action. We record that the Judge dismissed the claim for breach ofconfidence on the ground that there was no relationship of confidence betweenMr Walker and Mr Hyndman and no obligation of confidence arose in thecircumstances.7[24] The Judge held that the invasion of privacy tort extends to the disclosure ofprivate documents to a third party without authorisation and does not requiredisclosure to the public generally.8 Hosking v Runting concerned widespreaddisclosure, but this Court did not preclude further development of the tort. There maybe a reasonable expectation of privacy and qualifying conduct by the defendant thatwould be considered highly offensive to an objective reasonable person. The morelimited the audience the harder it will be to show the invasion was highly offensive,and so actionable.[25] The Judge found that the 26 July 2010 email was a private communicationbetween close friends, in which Mr Hyndman had a reasonable expectation ofprivacy.9 That expectation extended to the attached 22 July email from Mr Holden.10Mr Walker knew that there was personal information on the laptop. However, therewas no realistic argument that disclosure of emails of this kind would be consideredhighly offensive by a reasonable person:11There is nothing embarrassing or compromising, or even particularly personal,in the 26 July 2010 email. There is also no evidence to suggest any otherdocuments disclosed by Mr Walker to Mr Holden or Mr Thorne were morepersonal in nature. Furthermore, the emails were disclosed to a very limitedaudience of two or three private individuals, albeit individuals who heldgrudges against Mr Hyndman and Mr Henderson.7 At [85]–[89].8 At [90], citing her judgment in Henderson v Walker, above n 2, at [199]–[220] and especially[207]–[217].9 At [94].10 At [97].11 At [99].[26] Mr Hyndman's claim accordingly failed.Corresponding findings in Mr Henderson's case[27] In the Henderson proceeding Thomas J discussed the relationship betweeninvasion of privacy and breach of confidence.12 Mr Walker was held liable toMr Henderson in both causes of action. Mr Henderson was awarded damages of$5000 for breach of confidence and a declaration, with no damages, for invasion ofprivacy.13[28] What distinguished Mr Henderson's case from this one was that a relationshipof confidence was held to arise by reason of Mr Walker's status as liquidator and thedisclosures were far more extensive.14 For the most part, though, the information wasmostly concerned with the affairs of PVL and it was mostly disclosed to people whohad a proper interest in it.15 The Official Assignee had a proper interest in much ofthe material but received some personal information, the disclosure of which washighly offensive.16 By reference to the authorities, the Judge concluded it could notbe said that these disclosures merited an award of damages.17 Some disclosures weremade to people such as Mr Thorne, and although there was no justification forMr Walker's conduct in those cases there was also nothing to suggest the disclosureswould be highly offensive to an objective reasonable person.18The appeal[29] For Mr Hyndman, Mr Moss contended that this Court should not followHosking v Runting but rather should depart from it by discarding the "highlyoffensive" limb, which he said was unduly restrictive, uncertain in application and12 Henderson v Walker, above n 2, at [144]–[160].13 At [316]–[318].14 High Court judgment, above n 1, at [84]–[85].15 Henderson v Walker, above n 2, at [43]–[122].16 At [238]–[240].17 At [243]–[247] citing L v G [2002] NZAR 495 (DC); Brown v Attorney-General [2006] NZAR552 (DC); Director of Human Rights Proceedings v Slater [2019] NZHRRT 13;Hammond v Credit Union Baywide [2015] NZHRRT 6, (2015) 10 HRNZ 66; Campbell v MGNLtd [2004] UKHL 22, [2004] 2 AC 457; Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595,[2006] QB 125; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB); andGulati v MGN Ltd [2015] EWCA Civ 1291, [2017] QB 149.18 At [234].unnecessary. It is unnecessary because the concept of a reasonable expectation ofprivacy adequately limits the reach of the tort. Alternatively, Thomas J focused toomuch on the content of the emails and not enough on the offensive conduct ofMr Walker in disclosing them to people who held grudges against Mr Hyndman. Hesubmitted that this Court ought to find the breach proved and make a modest award ofdamages.[30] For Mr Walker, Mr Fowler QC submitted that the Judge was right to find nobreach in this case and there is no need to reformulate the tort; doing so would onlyburden the courts with trivial claims of the type Mr Hyndman has brought.The tort of giving publicity to private facts in New Zealand[31] The tort is aimed at publicity given to private facts.19 It is generally acceptedthat the tort is founded on a person's inherent dignity, and oftentimes personalautonomy,20 and is a constraint on others' right to freedom of expression.[32] In Hosking v Runting a well-known television personality failed to obtain aninjunction against a magazine company for the publication of photographs taken ofhis wife and infant children in a public street.21 A majority of the Full Court of theCourt of Appeal recognised a new tort of giving publicity to private facts inNew Zealand, opting not to follow English law, which then relied on breach ofconfidence. Gault, Blanchard and Tipping JJ held that a successful claim for invasionof privacy requires: 22(a) The existence of facts in respect of which there is a reasonableexpectation of privacy; and19 A separate tort for intrusion into seclusion has also developed following C v Holland [2012]NZHC 2155, [2012] 3 NZLR 672.20 Hosking v Runting, above n 1, at [239] and [258] per Tipping J; and see Stephen Todd (ed) Toddon Torts (8th ed, Thomson Reuters, Wellington, 2019) at 985–986.21 Hosking v Runting [2003] 3 NZLR 385 (HC); and upheld by the Court of Appeal in Hosking vRunting, above n 1.22 Hosking v Runting, above n 1, at [117] per Gault and Blanchard JJ. Derived from Bradley vWingnut Films Ltd [1993] 1 NZLR 415 (HC) at 423–424; and P v D [2000] 2 NZLR 591 (HC)at [34].(b) Publicity given to those private facts that would be considered highlyoffensive to an objective reasonable person.[33] The second limb was carried over directly from the American formulation ofthe tort,23 and restated by Gleeson CJ in Australian Broadcasting Corporation v LenahGame Meats Pty Ltd,24 the Court of Appeal reasoning that some breaches of privacyare to be expected and only the most serious should be actionable. As Gault andBlanchard JJ said in Hosking:[72] Finally, the matter made public must be one that would be offensiveand objectionable to a reasonable man of ordinary sensibilities: Reed v RealDetective Publishing Co Inc 63 Ariz 294; 162 P 2d 133 (1945); Davis vGeneral Finance & Thrift Corporation 80 Ga App 708; 57 SE 2d 225 (1950).It is only when the publicity given is such that a reasonable person would feeljustified in feeling seriously aggrieved by it that the cause of action arises.Prosser explained at p 396 that this is because, given the nature of society, noone can avoid the public gaze or public inquiry entirely and "complete privacydoes not exist in this world".[25][34] Gault and Blanchard JJ were concerned to limit liability to breaches of privacythat were "truly humiliating and distressful or otherwise harmful", regardless of thescale of publicity given to the information.26 The concern of the law is generally with"widespread publicity of very personal and private matters", and is distinct frompublication relating to defamation.27[35] The Judges emphasised that what must be "highly offensive" is the publicity,not the information itself:[127] We consider that the test of highly offensive to the reasonable personis appropriate. It relates, of course, to the publicity and is not part of the testof whether the information is private.[36] Legitimate public concern was established as a defence to the tort.2823 See Bradley v Wingnut Films Ltd, above n 22, at 423–424.24 Hosking v Runting, above n 1, at [125]–[126] citing Australian Broadcasting Corp v Lenah GameMeats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at 226.25 Page Keeton, Dan Dobbs and Robert Keeton Prosser and Keeton on the Law of Torts (5th ed, WestPublishing, St Paul, 1984).26 Hosking v Runting, above n 1, at [126].27 At [125].28 At [129].[37] Tipping J, in a concurring judgment, agreed that there was a need for a privacytort.29 However he was not convinced that the "highly offensive" requirement oughtto be standalone; rather he thought the question of offensiveness could be accountedfor within the assessment of a reasonable expectation of privacy. He expressed somehesitation that a "high" level of offensiveness could be unduly restrictive, preferringthe descriptor "substantial":[255] It is conventional in the American jurisprudence to measureexpectations of privacy and whether any asserted expectation is reasonable bythe level of offence, and thus of harm, which publication of the material inquestion might be expected to cause an ordinary member of society in theplaintiff's circumstances. The standard criterion has been to require a highlevel of offence. Such a formulation is a useful reminder that relatively trivialinvasions of privacy should not be actionable. This criterion also has the effectof requiring something substantial before there can be any intrusion onfreedom of expression.[256] While I recognise the value and the importance of these factors, andwould not wish to encourage litigation at a low level of impact, I would myselfprefer that the question of offensiveness be controlled within the need for thereto be a reasonable expectation of privacy. In most cases that expectation isunlikely to arise unless publication would cause a high degree of offence andthus of harm to a reasonable person. But I can envisage circumstances inwhich it may be unduly restrictive to require offence and harm at that highlevel. That might be so if, for example, the publication served little or nopublic good, save an abstract upholding of the liberty theory. I accept that itwill always be necessary for the degree of offence and harm to be substantial,so that freedom of expression values are not limited too readily. At the risk ofbeing thought guilty of a verbal quibble, I would prefer the qualifier to be asubstantial level of offence rather than a high level of offence. That seems tome to be a little more flexible, while at the same time capturing the essence ofthe matter.This view of the tort largely aligns with that now taken in the United Kingdom, as weexplain below.[38] The minority in Hosking v Runting, Keith J and Anderson P, held that a causeof action for giving publicity to private facts ought not be recognised in New Zealand.Keith J thought it significant that a right to privacy was not included in theNew Zealand Bill of Rights Act 1990,30 and that existing, limited statutory protectionstold "strongly against" the existence of a tort of privacy.31 He pointed to the limited29 At [247].30 At [181].31 At [207].success of privacy claims in the United States,32 and observed that a tort couldcontribute to a chilling effect on freedom of expression.33 Anderson P concurred,finding that the tort would be an unjustified limitation on freedom of expression.34[39] There has been very little development of the tort in the 16 years sinceHosking v Runting. In Television New Zealand Ltd v Rogers, a broadcaster sought touse a police video interview with the plaintiff, Noel Rogers, in a television broadcast.35In the interview he made damning admissions that he was responsible for the death ofKathy Sheffield, for which he was later acquitted at trial. The video was seeminglyconfidential and it was unclear how it had made its way into the hands of TelevisionNew Zealand. It had been ruled inadmissible before trial because it was obtained insubstantial breach of Mr Rogers' rights. He claimed its broadcast would breach hisprivacy, while Television New Zealand responded with the defence of public concern.The Supreme Court dismissed Mr Rogers' appeal, allowing the interview to bebroadcast.[40] McGrath J, with whom Blanchard and Tipping JJ concurred, held that theprivacy claimed failed on the test as formulated in Hosking v Runting.36 The test itselfwas not affirmed or critiqued. The Judge was not convinced that the video interviewhad a private character,37 and held that open justice should prevail.38[41] Elias CJ, with Anderson J, was of the ultimate view that the case should beremitted back to the High Court for reconsideration because the claim was not pleadedproperly at first instance.39 She was also hesitant to accept the test for a breach ofprivacy as expressed in Hosking v Runting because of the overlapping claim inconfidence on the facts in Rogers.40 She also pointed out that the "highly offensive"32 At [211]–[218].33 At [220].34 At [271].35 Television New Zealand Ltd v Rogers [2007] NZSC 91, [2008] 2 NZLR 277.36 At [99].37 At [105].38 At [136].39 At [7] per Elias CJ and [151] per Anderson J.40 At [24].element of the Hosking test had been doubted by the House of Lords inCampbell v MGN Ltd.41[25] In view of developments in other jurisdictions sinceHosking v Runting was decided, it is necessary to be cautious. I believe thisCourt should, for example, reserve its position on the view expressed inHosking v Runting (applying a test suggested by Gleeson CJ in AustralianBroadcasting Corporation v Lenah Game Meats Pty Ltd) that the tort ofprivacy requires not only a reasonable expectation of privacy but also thatpublicity would be "highly offensive". The test has been doubted by membersof the House of Lords in Campbell v Mirror Group Newspapers Ltd.(Footnotes omitted.)She also commented that the relevant time at which a reasonable expectation ofprivacy is assessed was left unresolved by the Hosking case.42[42] No privacy case since Rogers has gone further than the High Court. All haveapplied the Hosking v Runting test as set out by the majority. In Andrews v TelevisionNew Zealand Ltd, footage of a couple injured in a car crash aired on television wasfound to engender a reasonable expectation of privacy.43 The footage includedintimate conversation between the couple. But the publicity was found not to be highlyoffensive to a reasonable person.44 Allan J considered the "highly offensive" test wasdistinct from the reasonable expectation of privacy assessment because the formerrelated to publicity.45 He went on to hold that a reasonable expectation of privacy isto be assessed at the time of publication.46 Ultimately the claim failed because theplaintiffs were unable to identify any aspect of the footage which they regarded ashumiliating, embarrassing or offensive.47[43] The District Court decision in Brown v Attorney-General involved successfulclaims for breach of privacy and breach of confidence where police posted publicflyers bearing an offender's name, address, and photograph and identified him as aconvicted paedophile.48 Contrasting Andrews, Judge Spear interpreted the reasonable41 Citing Campbell v MGN Ltd, above n 17, at [94]–[96] per Lord Hope and at [22] per Lord Nicholls.42 At [26].43 Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 at [66].44 At [72].45 At [25].46 At [30].47 At [69] and [71].48 Brown v Attorney-General, above n 17.expectation of privacy assessment to be at the time privacy is alleged to have been"invaded".49[44] In A v Hunt (Contempt), Wild J held that a claim for breach of privacy was notavailable for the discussion of a confidential settlement in a published book on thebasis that there was "no disclosure of highly offensive, private facts".50 The Judgetook the view that the facts themselves must both be offensive and true to found acause of action.51 Similarly in Chatwin v APN News and Media Ltd, an applicationfor an interim injunction, Katz J described the offensiveness in the second limb of thetest as relating to the nature of the facts disclosed: "the facts must be of a kind thepublicity of which would be highly offensive or objectionable to a reasonable personof ordinary sensibilities".52 These cases suggest that the "highly offensive"requirement has migrated to some degree, from the publicity given to privateinformation to the nature of the information itself.[45] In a recent strike-out judgment in Driver v Radio New Zealand Ltd, Clark Jtook note of the circumstances relevant to whether there was a reasonable expectationof privacy that have developed in English law.53 We return to these factors below at[66]. The Judge also acknowledged that there can be overlap between defamation andprivacy torts where disclosure of private facts could cause both distress and concernfor one's reputation.54[46] In another recent decision of the High Court, Peters v Bennett, Venning J alsodrew on English authority in questioning whether the "highly offensive" limb of thetort is necessary.55 He confirmed that the assessment is nevertheless "contextual" —disclosure of superannuation information to the Ministry of Social Development inthat case could not be regarded as highly offensive.56 The Judge found that, in contrast,disclosure of that information to the media would and did amount to breach of49 At [64].50 A v Hunt (Contempt) [2006] NZAR 577 at [61].51 At [59].52 Chatwin v APN News and Media Ltd [2014] NZHC 11 at [18(c)].53 Driver v Radio New Zealand Ltd [2019] NZHC 3275 at [95] citing Murray v Express Newspapersplc [2008] EWCA Civ 446, [2009] Ch 481 at [36].54 At [112].55 Peters v Bennett [2020] NZHC 761 at [82]–[86].56 At [118]–[119].privacy.57 But in the absence of an identifiable conduit the claim failed.58 We notethat an appeal is pending in that case.[47] The handful of other tortious claims for making private facts public haveinvolved straightforward application of the Hosking v Runting test in the context ofapplications for interlocutory injunctions59 or strikeouts,60 most of themunsuccessful.61No remedy in this case under existing law[48] It is common ground that the emails between Messrs Hyndman and Hendersonwere personal communications between friends who had a reasonable expectation ofprivacy in them.[49] We turn to the information disclosed. As Mr Moss accepted, its personal natureis relevant though not dispositive. The 26 July email drafted by Mr Henderson waswhat the Judge described as a "tongue-in-cheek" response to the abusive and personalallegations made in Mr Holden's email of 22 July.62 The 26 July email contained, asthe Judge found, "nothing embarrassing or compromising, or even particularlypersonal".63 It was aimed at Mr Holden, commenting on his age, appearance andbackground, and as we have said it was written to be sent to Mr Holden.[50] Turning next to circumstances of the publicity, the emails were not publishedgenerally, but only to a very small number of people. We accept that disclosure to asmall class may suffice, but the broader the publicity and the less prior knowledge inthe audience, the more likely it is that disclosure will be highly offensive.64 It must be57 At [119] and [131].58 At [154]–[155].59 Clague v APN News and Media Ltd [2012] NZHC 2898, [2013] NZAR 99 at [34]–[38];Callaghan v Fairfax New Zealand Ltd HC Auckland CIV-2011-404-5605, 15 September 2011 at[19]–[20].60 Chatha v Attorney-General HC Palmerston North CIV-2006-454-868, 2 May 2008 at [103]; andNR v MR [2014] NZHC 863 at [104] and [111].61 For example see Television New Zealand Ltd v Rogers, above n 35; Andrews v Television NewZealand Ltd, above n 43; A v Hunt (Contempt), above n 50; and all but one claim in Driver v RadioNew Zealand Ltd, above n 53.62 Hyndman v Walker, above n 1, at [32].63 At [99].64 In Hosking v Runting, above n 1, Gault and Blanchard JJ held at [125] that the tort is aimed at"widespread publicity".borne in mind that the person to whom Mr Hyndman finds the disclosure mostoffensive was Mr Holden, who obviously knew what was in the 22 July email becausehe wrote it. Mr Thorne was likely also to be aware already of Mr Holden's views ofMr Hyndman. It is presumably for this reason that the claim focuses on the draft replyrather than the personal and abusive allegations in the email of 22 July, thoughMr Walker disclosed both.[51] There is evidence that the disclosure caused offence to Mr Hyndman.He deposed that Mr Walker's various disclosures (not confined to the 22 and 26 Julyemails) caused him great emotional distress and the information was used by hisenemies to threaten, belittle and criticise him. He said that he felt powerless. And hegave evidence of health, personal and business problems that he attributed toMr Walker's behaviour. However, the Judge heard that evidence and she did not findthat Mr Walker's behaviour would have had these effects on the reasonable person.65She did not refer to the impact on Mr Hyndman at all.[52] We accept for present purposes that Mr Hyndman had been harassed byMr Holden. We accept too that the loss of control over private communications mightbe harmful even if the content were completely unremarkable. Further, Mr Hyndmanhad chosen not to send the 26 July email to Mr Holden, and by disclosing it Mr Walkertook that decision out of his hands. But we are not prepared, in the absence of findingsbelow, to find that the disclosure of the 22 and 26 July emails had the effects of whichMr Hyndman complains. His evidence did not focus on those emails (it will berecalled that Mr Walker was accused of making a number of disclosures). He saidrather that he was already going through a difficult time when the emails were sent.[53] Nor do we accept that a reasonable person would find the disclosures seriouslyoffensive. We readily accept that the reasonable person would take exception toMr Walker's misuse of information gained in the exercise of statutory powers; wereturn to that point at [77] below. But the privacy tort focuses on the expectation ofprivacy and the circumstances of the disclosure. We add that the reasonable observerwould recognise that the disclosure occurred in the context of a running battle between65 High Court judgment, above n 1, at [99].Mr Henderson, who was seeking to avoid accountability for a failed business venture,and Mr Walker, who was pursuing the interests of creditors but had lost the objectivityexpected of a liquidator. There were questionable practices on both sides. The Judgedid not find that Mr Idour passed on these particular emails, but he was an agent ofMr Henderson and did obtain information from Mr Walker by passing himself off asa representative of creditors.66[54] For these reasons, we agree with the Judge that Mr Walker's (via Mr Eathorne)disclosure to Mr Holden or Mr Thorne did not meet the "truly humiliating anddistressful or otherwise harmful" standard set by Hosking v Runting.67 It would notbe considered highly offensive to a reasonable person in Mr Hyndman's position.Where next for the tort?[55] Mr Moss developed a persuasive argument that the tort is ripe for furtherdevelopment, particularly having regard to developments in English law that beganwith the House of Lords decision in Campbell v MGN Ltd, which was delivered justover one month after Hosking v Runting.68 His submissions relied on the work ofProfessor Nicole Moreham, who has written extensively on the topic.69 We will surveythe English developments briefly before summarising the argument.Developments in English law[56] Developments in English law have owed much to the Human Rights Act 1998(UK). That legislation gave effect to art 8 of the European Union Convention onHuman Rights, which recognises that everyone has "the right to respect for his privateand family life, his home and his correspondence".[57] In Campbell, the House of Lords unanimously recognised a cause of action for"wrongful disclosure of private information", overturning the Court of Appeal.7066 At [38]; and Henderson v Walker, above n 2, at [29] and [122].67 Hosking v Runting, above n 1, at [126].68 Campbell v MGN Ltd, above n 17.69 See N A Moreham "Why is Privacy Important? Privacy, Dignity and Development of theNew Zealand Breach of Privacy Tort" in Jeremy Finn and Stephen Todd (eds) Law, Liberty,Legislation: Essays in honour of John Burrows QC (LexisNexis, Wellington, 2008); and N AMoreham "Abandoning the 'High Offensiveness' Privacy Test" (2018) 4 CJCCL 161.70 Campbell v MGN Ltd, above n 17, at [12] and [17].Although framed as an extension to the breach of confidence tort rather than astandalone privacy tort, it was said to give effect to arts 8 and 10 of the Conventionand was described as a protection against "invasion of privacy".71[58] The facts were that photographs were taken of a celebrity fashion modelapparently leaving a Narcotics Anonymous meeting and published in a news articlestating that she was a drug addict who was receiving treatment for her addiction,attending Narcotics Anonymous, and giving details of her treatment. The claimantaccepted that the newspaper was entitled to disclose that she was a drug addictreceiving treatment because she had previously publicly denied any drug use. But amajority of the Court found that details of the claimant's therapy were largelyindistinguishable from details of a medical condition or its treatment, being privatedetails that imported a duty of confidence.72 Disclosure risked disrupting hertreatment and an objective and reasonable person in her shoes would find it distressingand highly offensive.73[59] The rationale for the cause of action in England and Wales is "the protectionof human autonomy and dignity — the right to control the dissemination ofinformation about one's private life and the right to the esteem and respect of otherpeople".74 As Lord Hoffmann described, the tort balances freedom of expressionagainst the right to protect personal information:[55] I shall first consider the relationship between the freedom of the pressand the common law right of the individual to protect personal information.Both reflect important civilised values, but, as often happens, neither can begiven effect in full measure without restricting the other. How are they to bereconciled in a particular case? There is in my view no question of automaticpriority. Nor is there a presumption in favour of one rather than the other.The question is rather the extent to which it is necessary to qualify the oneright in order to protect the underlying value which is protected by the other.And the extent of the qualification must be proportionate to the need: seeSedley LJ in Douglas v Hello! Ltd [2001] QB 967, 1005, para 137.71 At [12]. See also the comment by Nicholls LJ that "[t]he essence of the tort is better encapsulatednow as misuse of private information": at [14].72 At [91], [95], [145]–[147] and [165].73 At [98]. But see [165]–[166] per Lord Carswell.74 At [51].[60] The test centres on "whether in respect of the disclosed facts the person inquestion had a reasonable expectation of privacy".75 Lord Nicholls rejected a "highlyoffensive" threshold, saying that such a consideration more properly goes to thesecondary question of the proportionality of the breach such as the degree of intrusioninto private life, and the extent to which publication was a matter of proper publicconcern:21 Accordingly, in deciding what was the ambit of an individual's"private life" in particular circumstances courts need to be on guard againstusing as a touchstone a test which brings into account considerations whichshould more properly be considered at the later stage of proportionality.Essentially the touchstone of private life is whether in respect of the disclosedfacts the person in question had a reasonable expectation of privacy.22 Different forms of words, usually to much the same effect, have beensuggested from time to time. The American Law Institute, Restatement of theLaw, Torts, 2d (1977), section 652D, uses the formulation of disclosure ofmatter which "would be highly offensive to a reasonable person".In Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208CLR 199, 266, para 42, Gleeson CJ used words, widely quoted, having asimilar meaning. This particular formulation should be used with care, fortwo reasons. First, the "highly offensive" phrase is suggestive of a stricter testof private information than a reasonable expectation of privacy. Second, the"highly offensive" formulation can all too easily bring into account, whendeciding whether the disclosed information was private, considerations whichgo more properly to issues of proportionality, for instance, the degree ofintrusion into private life, and the extent to which publication was a matter ofproper public concern. This could be a recipe for confusion.[61] Similarly, Baroness Hale did not see much benefit in a "highly offensive" limbto the test for reasonable expectation of privacy. She stated that it had been taken outof context from the judgment of Gleeson CJ in the High Court of Australia decision inAustralian Broadcasting Corp v Lenah Game Meats Pty Ltd:134 The position we have reached is that the exercise of balancing article8 and article 10 [which protects freedom of expression] may begin when theperson publishing the information knows or ought to know that there is areasonable expectation that the information in question will be keptconfidential. 135 An objective reasonable expectation test is much simpler and clearerthan the test sometimes quoted from the judgment of Gleeson CJ in the HighCourt of Australia in Australian Broadcasting Corpn v Lenah Game MeatsPty Ltd (2001) 208 CLR 199, 226, para 42, that "disclosure or observation ofinformation or conduct would be highly offensive to a reasonable person ofordinary sensibilities". It is important to set those words in their full context,75 At [21].bearing in mind that there is no constitutional protection of privacy inAustralia:"There is no bright line which can be drawn between what is privateand what is not. Use of the term 'public' is often a convenient methodof contrast, but there is a large area in between what is necessarilypublic and what is necessarily private. An activity is not privatesimply because it is not done in public. It does not suffice to make anact private that, because it occurs on private property, it has suchmeasure of protection from the public gaze as the characteristics ofthe property, the nature of the activity, the locality, and the dispositionof the property owner combine to afford. Certain kinds of informationabout a person, such as information relating to health, personalrelationships, or finances, may be easy to identify as private; as maycertain kinds of activity, which a reasonable person, applyingcontemporary standards of morals and behaviour, would understandto be meant to be unobserved. The requirement that disclosure orobservation of information or conduct would be highly offensive to areasonable person of ordinary sensibilities is in many circumstances auseful practical test of what is private."136 It is apparent, therefore, that Gleeson CJ did not intend those lastwords to be the only test, particularly in respect of information which isobviously private, including information about health, personal relationshipsor finance. It is also apparent that he was referring to the sensibilities of areasonable person placed in the situation of the subject of the disclosure ratherthan to its recipient.[62] Instead Baroness Hale framed the appropriate test as, first, an assessment ofwhether there was a reasonable expectation of privacy in respect of the informationdisclosed followed by, second, a balancing exercise of the claimant's privacy interestagainst the respondent's interest in disclosure:137 It should be emphasised that the "reasonable expectation of privacy"is a threshold test which brings the balancing exercise into play. It is not theend of the story. Once the information is identified as "private" in this way,the court must balance the claimant's interest in keeping the informationprivate against the countervailing interest of the recipient in publishing it.Very often, it can be expected that the countervailing rights of the recipientwill prevail.[63] Lord Hope was of the view that where information that is clearly private isdisclosed, then breach of confidence can be established on that basis alone.76 He didnot think that the "highly offensive" test would be necessary in such cases.77 Butwhere there is room for doubt, it could assist.78 He held that the relevant reasonable76 At [92].77 At [94] and [96].78 At [94].person to whom publication must be highly offensive is an objective person in theclaimant's shoes; "[t]he question is what a reasonable person of ordinary sensibilitieswould feel if she was placed in the same position as the claimant and faced with thesame publicity".79[64] Campbell has established that the English cause of action for breach ofconfidence extends to unauthorised or public disclosure of private information.80Subsequent cases have developed the tort further. Notably, it no longer requires thatthere be a relationship of confidence and it has been increasingly recognised as aseparate privacy tort.81[65] In Murray v Express Newspapers plc the Court of Appeal developed the testfor a reasonable expectation of privacy.82 Covert photographs were taken of a famousauthor's infant son while the parents were pushing his stroller down a public street.The parents claimed for breach of privacy on their son's behalf, which was struck outby the trial judge in reliance on Hosking v Runting. The Court of Appeal reversed thestrike-out, holding there was an arguable cause of action.[66] The Court identified seven contextual factors relevant to the assessment of areasonable expectation of privacy. They were the attributes of the claimant, the natureof the activity in which the claimant was engaged, the place at which it was happening,the nature and purpose of the intrusion, the absence of consent and whether it wasknown or could be inferred, the effect on the claimant and the circumstances in whichand the purposes for which the information came into the hands of the publisher.83It confirmed that "reasonable person" is one in the same position as the claimant.84[67] The Court expressly rejected a "highly offensive" limb, opting rather for thesecond-stage rights balancing exercise favoured by Baroness Hale in Campbell:79 At [99].80 OBG Ltd v Allan [2007] UKHL 21, [2008] AC 1 at [118] per Lord Hoffmann and [272] per LordWalker.81 At [255] per Lord Nicholls; Mosley v News Group Newspapers Ltd [2008] EWHC 2341 (QB) at[8]–[10]; and Vidal-Hall v Google Inc [2015] EWCA Civ 311, [2016] QB 1003 at [25] and[41]–[43].82 Murray v Express Newspapers plc, above n 53.83 At [36].84 At [35] and [52].35 In these circumstances, so far as the relevant principles to be derivedfrom Campbell v MGN Ltd [2004] 2 AC 457 are concerned, they can we thinkbe summarised in this way. The first question is whether there is a reasonableexpectation of privacy. This is of course an objective question. The nature ofthe question was discussed in Campbell v MGN Ltd. Lord Hope emphasisedthat the reasonable expectation was that of the person who is affected by thepublicity. He said, at para 99: "The question is what a reasonable person ofordinary sensibilities would feel if she was placed in the same position as theclaimant and faced with the same publicity." We do not detect any differencebetween Lord Hope's opinion in this regard and the opinions expressed by theother members of the appellate committee.36 As we see it, the question whether there is a reasonable expectation ofprivacy is a broad one, which takes account of all the circumstances of thecase. They include the attributes of the claimant, the nature of the activity inwhich the claimant was engaged, the place at which it was happening, thenature and purpose of the intrusion, the absence of consent and whether it wasknown or could be inferred, the effect on the claimant and the circumstancesin which and the purposes for which the information came into the hands ofthe publisher.40 At a trial, if the answer to the first question were yes, the next questionwould be how the balance should be struck as between the individual's rightto privacy on the one hand and the publisher's right to publish on the other.If the balance were struck in favour of the individual, publication would be aninfringement of his or her article 8 rights, whereas if the balance were struckin favour of the publisher, there would be no such infringement by reason ofa combination of articles 8(2) and 10 of the Convention.41 At each stage, the questions to be determined are essentially questionsof fact. The question whether there was a reasonable expectation [of] privacyis a question of fact. If there was, the next question involves determining therelevant factors and balancing them. As Baroness Hale put it, at para 157, theweight to be attached to the various considerations is a matter of fact anddegree. That is essentially a matter for the trial judge.[68] Later authorities have held that trivial breaches will not found a cause ofaction.85 The alleged harm to the plaintiff's personal autonomy must attain "a certainlevel of seriousness",86 the expectation of privacy must be objectively reasonable, andcountervailing public interest considerations may outweigh the privacy interest.In R (Wood) v Commissioner of Police, Laws LJ held that:85 Ambrosiadou v Coward [2011] EWCA Civ 409, [2011] 2 FLR 617 at [28] and [30]; and ZXC vBloomberg LP [2020] EWCA 611, [2021] QB 28 at [45], citing R (Wood) v Commissioner ofPolice of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123 at [22], in a passage approvedof by Lord Toulson SCJ (with whom Lord Hodge SCJ agreed) in In re JR38 [2015] UKSC 42,[2016] AC 1131 (SCNI) at [87].86 R (Wood) v Commissioner of Police of the Metropolis, above n 85, at [22].21 The notion of the personal autonomy of every individual marches withthe presumption of liberty enjoyed in a free polity: a presumption whichconsists in the principle that every interference with the freedom of theindividual stands in need of objective justification. Applied to the myriadinstances recognised in the article 8 jurisprudence, this presumption meansthat, subject to the qualifications I shall shortly describe, an individual'spersonal autonomy makes him — should make him — master of all those factsabout his own identity, such as his name, health, sexuality, ethnicity, his ownimage, of which the cases speak; and also of the "zone of interaction" between himself and others. He is the presumed owner of these aspects of hisown self; his control of them can only be loosened, abrogated, if the stateshows an objective justification for doing so.22 This cluster of values, summarised as the personal autonomy of everyindividual and taking concrete form as a presumption against interference withthe individual's liberty, is a defining characteristic of a free society. Wetherefore need to preserve it even in little cases. At the same time it isimportant that this core right protected by article 8, however protean, shouldnot be read so widely that its claims become unreal and unreasonable. Forthis purpose I think there are three safeguards, or qualifications. First, thealleged threat or assault to the individual's personal autonomy must (if article8 is to be engaged) attain "a certain level of seriousness". Secondly, thetouchstone for article 8(1)'s engagement is whether the claimant enjoys on thefacts a "reasonable expectation of privacy" (in any of the senses of privacyaccepted in the cases). Absent such an expectation, there is no relevantinterference with personal autonomy. Thirdly, the breadth of article 8(1) mayin many instances be greatly curtailed by the scope of the justificationsavailable to the state pursuant to article 8(2). (Citations omitted.)The argument for reform of the tort[69] Arguments for reform of the New Zealand tort are much informed bydevelopments in English law and focus on the "highly offensive" limb of the tort.[70] Perhaps the weightiest argument is that the tort takes too narrow a view ofprivacy harm. Professor Moreham emphasises that the tort is concerned with "thepreservation of choice about when the private aspects of one's life will be accessibleto others. This is a fundamental aspect of individual dignity and autonomy".87 Tointerfere with privacy is to undermine dignity, and for that reason the tort should beactionable without proof of loss or harm.88 In application, she argues, the "highlyoffensive" limb has led to the tort focusing instead on protection from reputational87 Moreham "Abandoning the 'High Offensiveness' Privacy Test", above n 69, at 180–181.88 Moreham "Why is Privacy Important?", above n 69, at 240.harm or embarrassment.89 So, for example, in Andrews v Television New Zealand Ltd,the claim failed because the information, though private, was presented in asympathetic manner.90 The real injury was that someone decided the world should seeand hear the plaintiffs as they dealt with the aftermath of an accident.[71] Professor Moreham also argues that the "highly offensive" limb makes the tortunpredictable and erratic.91 She contends that whereas the criteria for assessing areasonable expectation of privacy are tolerably clear, the "highly offensive" test is not,perhaps because it serves primarily to exclude cases that judges find unmeritorious.The cases do not articulate a principled approach. We observe that this problem is tosome extent inherent in the Hosking v Runting framing of the tort. As Tipping J statedin his concurring judgment, it is not possible to separate the two limbs of the test, forthe second is implicit in the first.92 In consequence, judges considering whetherdisclosure was highly offensive inevitably focus not only on the disclosure but alsothe reasonable expectation of privacy. As Professor Rosemary Tobin observes,however the tort is formulated "the surrounding circumstances will always be relevant,including the nature of the information, the circumstances in which the defendantcame into possession of it, and also the manner of its proposed release".93[72] Finally, Professor Moreham argues that the "highly offensive" limb isunnecessary.94 She accepts that privacy torts are capable of silencing legitimate speechand deterring investigations of wrongdoing, and so need to be kept within clearlydefined parameters. However, the reasonable expectation of privacy test strikes theappropriate balance between privacy and free expression because it requires that theplaintiff's subjective expectation be objectively reasonable having regard to generalsocietal values. The standard of objective reasonableness involves a normativeenquiry into what privacy protection a plaintiff can expect the law to provide, and oncethis is recognised it becomes plain that the standard will not be satisfied unless theinterference in question is a serious one.89 At 242.90 Moreham "Abandoning the 'High Offensiveness' Privacy Test", above n 69, at 180–181.91 Moreham "Why is Privacy Important?", above n 69, at 246–247.92 Hosking v Runting, above n 1, at [256].93 Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thomson Reuters,Wellington, 2016) at 97.94 Moreham "Abandoning the 'High Offensiveness' Privacy Test", above n 69, at 186–189.[73] There is a good deal of force in these criticisms of the tort as formulated inHosking v Runting. However, it does not follow that it would be right to acceptMr Moss's invitation simply to abandon the second limb, leaving the reasonableexpectation of privacy to do all the work of striking the appropriate balance.Professor Tobin has sounded a note of caution:95While it is certainly true that the tort protects a dignitary interest, freedom ofexpression is also seen as an inherent right that is rooted in human dignity andautonomy. That being so the appropriate balance must be achieved betweenthe two, particularly when only one of these is a right that can be found in theBill of Rights Act.Similar concerns underpinned the dissenting judgments of Keith J and Anderson P inHosking v Runting.[74] The absence of express protection for privacy in the New Zealand Bill ofRights Act 1990 does not preclude liberalisation of the tort. Winkelmann J, as shethen was, pointed in an extrajudicial address to privacy values that are found in thecommon law or underpin some of the express rights in the Act and might providea conceptual framework for the law's response to new and urgent privacy harmsoccasioned by the development of internet communication and services.96 Thesedevelopments challenge privacy law, requiring that courts assess and meet communityexpectations of privacy and provide appropriate remedies for breach.[75] However, courts must proceed with care, paying close attention tocountervailing rights and interests when formulating the criteria that will be used togauge reasonable expectations of privacy. They must also recognise their institutionallimitations, which dictate that law should be developed incrementally and by referenceto specific facts. As we have already indicated, we do not regard this case as a suitablevehicle for the substantial reform we are being asked to undertake.[76] Nor do we think that justice requires we develop the tort in this case. Assumingwe were to adopt the English formulation, Mr Hyndman's claim would still fail. Forthe reasons given at [50]–[54] above, the claim that Mr Hyndman's dignitary interest95 Penk and Tobin, above n 93, at 103.96 Helen Winkelmann, Justice of the Court of Appeal "Sir Bruce Slane Memorial Lecture"(November 2018).in his personal privacy was breached does not attain a sufficient level of seriousnessin the particular circumstances of this case. We accept that the communicationsbetween Messrs Hyndman and Henderson took place in private. Further, the natureand purpose of the disclosure by Mr Walker bore no connection to the proper exerciseof his duties as a liquidator. There was no question of consent and Mr Walker plainlyknew that. But it must be borne in mind not only that the information in the 22 Julyemail was not itself private — Mr Holden already had it — but also that the draft26 July email was intended to be sent to Mr Holden and contained little if anythingpersonal to Mr Hyndman. The emails were disclosed to very few people. In ouropinion the effect of the disclosure in this case was trifling.The Marcel principle[77] A different species of breach of confidence that has developed in English lawwarrants mention. In Marcel v Commissioner of Police of the Metropolis documentsseized by police when pursuing a criminal investigation into a property developmentwere disclosed to a third party who was making a civil claim against the samedevelopment.97 Marcel stands for the principle that confidential or personalinformation obtained compulsorily through a legal power or public duty is not to bedisclosed for other private purposes.98 It is properly characterised as a breach ofconfidence tort, not a privacy tort, because it responds to the abuse of power ratherthan the existence of a privacy interest in the information.99 We note that inHenderson v Walker Thomas J accepted, relying on Marcel, that the information onthe laptop and tape drive was obtained in circumstances importing an obligation ofconfidence.100 The claim failed in this case on the facts; the Judge held that arelationship of confidence existed between Mr Walker and Mr Henderson, notMr Hyndman, and further that Mr Walker was not legally responsible for the actionsof the police.101 We observe that the obligation of confidence arises when personal or97 Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (Ch). An appeal was allowedon a different point.98 As affirmed in R (Ingenious Media Holdings plc) v Revenue and Customs Commissioners [2016]UKSC 54, [2016] 1 WLR 4164 at [17].99 See N A Moreham "Privacy, reputation and alleged wrongdoing: why police investigations shouldnot be regarded as private" (2019) 11 JML 142; and N A Moreham "Police investigations, privacyand the Marcel principle in breach of confidence" (2020) 12 JML 1.100 Henderson v Walker, above n 2, at [176]–[183].101 High Court judgment, above n 1, at [84]–[89].confidential information is obtained under legal powers — here, those of a liquidator— which must be exercised for a particular purpose.102 However, we were not calledupon to review the Judge's findings and accordingly express no view on them.Decision[78] The appeal is dismissed.[79] Mr Moss urged us to let costs be where they fall should the appeal fail. Butthe ordinary rule is that costs follow the result and we do not think it is displaced inthe circumstances of this case. Mr Walker is entitled to costs for a standard appeal ona band A basis plus usual disbursements. We certify for second counsel.Solicitors:Canterbury Legal, Christchurch for AppellantLuke Cunningham Clere, Wellington for Respondent102 R (on the application of Ingenious Media Holdings plc) v Revenue and Customs Commissioners,above n 98, at [17].