When Heather Mills made a spectacle out of herself on worldwide television recently, I found it difficult to sympathise with her. Quite simply, she was out of control: “on a frolic of her own”, as lawyers are wont to say. She has become mired in a mixture of self-pity, anger, self-righteousness and the injustice of an imagined nightmare endured in front of the world. Aligning herself with the McCann family and the late Princess of Wales, she seemed to be saying to us: “You have pity on them – have pity on me”.
Ms Mills is playing out her role as abandoned wife for all she is worth. She has her side of the story to tell, and I have no doubt at all that she believes every word she says. She has been lambasted in the media, but her efforts are producing results: the image of Sir Paul, a national treasure, has now been tarnished.
I think she intends to continue – and make a fortune into the bargain. From a legal perspective, however, Heather Mills is pushing her luck to the limit. She is not supposed to discuss her marriage until the case is over. In all probability, speaking out has already cost her a small fortune in her settlement.
Last year, in an article written for The Times, I suggested that Sir Paul should pay up generously and fast, to gag his errant wife for his own sake and for that of his family. Sadly, this never happened; the damage has been done and is likely to worsen. Will Sir Paul be able to stop her- permanently – in the court battle to come? Last year I might have said no, but her uncontrolled display has led me to reconsider this prospect.
Undoubtedly, Ms Mills has the right to freedom of expression. However, under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Sir Paul and his family from his first marriage have a right to a private life too. Under the Protection from Harassment Act 1997, they also have the right to protection from harassment. Therefore they can ask the court to make a permanent injunction, to stop Ms Mills washing the family’s dirty laundry in public.
The court must play a balancing act between parties’ competing rights. It isn’t easy – as J K Rowling has discovered. The Harry Potter author was unable to protect the privacy of her child and keep a newspaper from publishing photograph taken as mother and child walked down a street. In another case, however, when a husband wanted to sell the story of his wife’s adultery with a well-known person to the media, the court held that freedom of speech should only be constrained if it is necessary to do so. In that case they made an order to stop him.
Now the court too must decide if there is a genuine public interest in the disclosure of Ms Mill’s story. Its decision will be based upon her right to freedom of speech, and not to sell “tittle tattle”, or to act out of spite or out of the desire to make money, and in that regard they will consider also the balancing factor, the likely impact on Sir Paul’s – and his children’s – right to family life.
This task would prove difficult for any judge since Sir Paul is already regarded as “public property” and his first marriage was supposedly a very happy one. Ms Mills may seek to argue otherwise in an effort to bolster her own case. The outcome is likely to be appealed by the unsuccessful litigant, up to the House of Lords – or even to the European Court of Human Rights. Naomi Campbell appealed to the House of Lords seeking privacy, and was ultimately successful. Princess Caroline of Monaco also made a successful application for privacy. It can be done: in some cases, my clients have obtained “gagging orders” as part of their settlements, having also obtained interim injunctions beforehand.
I suspect that because Ms Mills has already splashed nasty allegations all over the world, she will be injuncted by the court from making any further disclosure. Her recent behaviour has hardly helped her cause. If she is injuncted, there are ways round the order, which include broadcasting or publishing material overseas. However, such actions would be contempt of court in this country, and liable to punishment by imprisonment. This would be all very well if she intended to leave England for good, but because her young daughter Beatrice is still within the court’s jurisdiction – and may not leave without the consent of her father or a court – it is unlikely that Heather Mills would put herself in such a position. Unless of course Beatrice was to reside permanently with her father and, given Ms Mills’ recent conduct, that possibility too should not be discounted.
To my mind, this part of the case could be much more interesting than the size of her eventual settlement. Before he began divorce proceedings, and before Heather Mills began her campaign to fight back and ‘validate’ her side of the story, Sir Paul was apparently untouchable, and well-placed to settle amicably. What a pity that the former Beatle did not fully protect the value of his reputation and the McCartney family’s reputation from the outset.