Ash wrote a book about time spent with her then-friend McKennitt, who is a Canadian singer and songwriter famous for guarding her personal privacy. Called Travels With Loreena McKennitt: My Life As A Friend, it was the subject of an unsuccessful injunction against publication filed by McKennitt.
When McKennitt could not prevent publication of the book, she took an action relating to certain passages in the book alleging breach of confidence. There is no statutory law of privacy in England, but a breach of confidence is actionable.
The High Court's Justice Eady agreed to block the publication of the passages complained about. They related to McKennitt's personal and sexual relationships; her feelings after her fiancé died in a boating accident; information on her health and diet; information on her emotional vulnerability; and details of a property dispute.
The petition for the right to appeal to the House of Lords says that if the Court of Appeal judgment were allowed to stand it would severely limit what the public will be allowed to read by limiting the disclosure of private information only to those cases deemed to represent a debate of public importance.
It says that the ruling could allow famous people to control their image for their own benefit by using the law to keep unwanted revelations from the public domain. "The reality in so many of these cases is that the claimant's primary concern is that the allegedly private information portrays him in a negative light," it says.
"There may be different opinions about where the balance should be struck between freedom of expression and the protection of privacy. But it is clearly a matter of general importance," says the petition, according to the PA news agency. "Where the balance has been significantly tilted in favour of privacy by judicial intervention, as is the effect of the judgments of Mr Justice Eady and the Court of Appeal, the consequence is to deprive the public of the opportunity to receive information that it would otherwise wish to receive, without the intervention of Parliament. That is a matter of some significance and is worthy of consideration at the highest judicial level."
The McKennitt case is a vital element in a growing body of case law which could result in England having an ad hoc privacy law. It is based on Articles eight and 10 of the European Convention on Human Rights (ECHR), which are "shoehorned" into English law in the creation of the tort of breach of confidence, said Lord Justice Buxton, the Court of Appeal judge who backed the High Court's original verdict.
Any House of Lords hearing would give clarity and finality to one of English law's fastest developing and therefore unstable areas.
Prince Charles was at the centre of a case surrounding private notes he circulated to some close friends and advisers. He won his case to keep the notes out of the newspapers. Catherine Zeta Jones and Michael Douglas are involved in a case related to their wedding photos which has also, so far, backed their privacy.