Wainwright v Home Office [2004] 2 AC 406
House of Lords declined to recognise tort of invasion of privacy in English law
Facts
The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the person in relation to both claimants consisting of wilfully causing a person to do something to himself which infringed his privacy. The defendant appealed against the finding of trespass and was successful in the Court of Appeal.
Issue
In cases such as Kaye v Robertson [1991] FSR 62, it was well established that there exists no tort of invasion of privacy in English law. An oft-cited stumbling block to the establishment of such a tort was the difficulty in clearly defining the concept of privacy. The claimants submitted that this was a case in which the House should find that the English common law recognises a remedy for an invasion of privacy. The claimants referred to various judgements of the European Court of Human Rights which suggested that English law does not provide a valid remedy in respect of Article 8 of the European Convention on Human Rights.
Decision/Outcome
The appeal was dismissed. Lord Hoffmann recognised that the concept of privacy underpins the common law of breach of confidence which was significantly developed in Campbell v MGN Ltd [2003] QB 633 but did not recognise a tort of invasion of privacy. The Court did not consider that there was anything in the jurisprudence of the European Court of Human Rights which required some high-level principle of privacy. Furthermore, this case was decided immediately prior to the Human Rights Act 1998 and the Court noted that the coming into force of that Act weakened the argument that a general tort of invasion of privacy at common law is needed to fill gaps in existing remedies.
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Updated 20 March 2026
This case summary remains broadly accurate. Wainwright v Home Office [2004] 2 AC 406 correctly states the House of Lords’ refusal to recognise a general tort of invasion of privacy in English law, and that position has not changed: English common law still does not recognise such a tort.
One factual point worth noting: the article refers to Campbell v MGN Ltd [2003] QB 633, which was the Court of Appeal decision. The House of Lords subsequently decided the case at [2004] 2 AC 457, and it is the House of Lords’ decision that is now the leading authority on the development of the breach of confidence/misuse of private information action. The Court of Appeal citation used in the article is not incorrect in context, but readers should be aware the final appellate decision is the more authoritative reference.
More broadly, since Wainwright, the action for misuse of private information has developed substantially as a distinct cause of action, recognised by the Court of Appeal in Vidal-Hall v Google Inc [2015] EWCA Civ 311 as separate from breach of confidence. The Human Rights Act 1998 continues to operate as the primary legislative framework through which Article 8 ECHR rights are given effect in domestic law, consistent with what the article states. The Wainwright family also subsequently succeeded before the European Court of Human Rights: Wainwright v United Kingdom (2007) 44 EHRR 40, which found violations of Articles 3 and 8 ECHR — a development the article does not mention but which is relevant context for students researching this area.
