The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. On an application for permission to appeal, it was alleged that Sullivan J had wrongly conducted a balancing exercise that had regard to the requirements of Article 10 of the Convention notwithstanding that the publication was in breach of contractual obligations of confidence. The claimants had argued that because of a contractual confidentiality agreement the court had no option but to grant the injunction. The defendants had relied, successfully, on the argument that if, which was not admitted, publication of the redacted report would breach the confidentiality agreement, the injunction should none the less be set aside because of the strong public interest in the content of the report. Sullivan J had held that the public interest required the report to be published in it redacted form, even if an exceptional case had to be made for breaching the contractual duty of confidence. He held that the case was exceptional: ‘…this is not a case where some employee is seeking to pass confidential information to someone else for commercial gain, or where someone is trying to use confidential material to steal a march on a commercial rival. What the defendants seek to do is to disclose matters which are of genuine public concern…this is a most exceptional case. It could not properly be described as the normal run-of-the-mill breach of confidence case, whether it is in breach of an implied duty of confidence or an express duty of confidence contained in an agreement…’
Held: The court rejected the submission that a duty of confidence carried greater weight if it was contractual: ‘No authority has been cited to the court establishing that an apparent breach of a contractual duty of confidence is more serious, and is to be approached differently (as regards injunctive relief) than other apparent reaches the court adopts the same approach to both.’ (Walker LJ) The respondent argued that the judge had applied too stringent a test in requiring them to demonstrate that there was an exceptional case for publication. The court held that on the test applied by the judge his conclusions were amply justified.
Sedley J held that Convention rights introduced by the Human Rights Act lent force to Robert Walker LJ’s conclusion. Applying a test of proportionality furnished a more certain guide to the exercise of the court’s discretion than ‘the test of a reasonable recipient’s conscience’. The effect of section 3(1) of the Act was ‘…in the absence of any meaningful threatened breach of confidentiality, that it is unlawful by virtue of section 6(1) of the Human Rights Act 1998 for either claimant to seek, whether by contract or lawsuit, to interfere with Article 10 rights – whether those of the defendant or those of the public’.
Aldous LJ said that, although the hearing had been of an application for permission to appeal, as the court had heard full argument ‘we regard our judgments as making a modest extension to the law’.
Judges:
Sedley LJ, Aldous LJ, Robert Walker LJ
Citations:
[2003] EMLR 4, [2001] EWCA Civ 1491
Links:
Statutes:
Greater London Authority Act 1999 210, European Convention on Human Rights 10(2)
Jurisdiction:
England and Wales
Citing:
Appeal from – Regina v London Underground Ltd and Another, ex parte Transport for London QBD 30-Jul-2001
The Act gave the power to the government to override the policy of the Mayor of London and the Transport for London authority, and to enter into private partnerships for the management of the underground system by the private sector. Although the . .
Cited – Saltman Engineering Co v Campbell Engineering Co Ltd CA 1948
The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to . .
Cited by:
Appealed to – Regina v London Underground Ltd and Another, ex parte Transport for London QBD 30-Jul-2001
The Act gave the power to the government to override the policy of the Mayor of London and the Transport for London authority, and to enter into private partnerships for the management of the underground system by the private sector. Although the . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Lists of cited by and citing cases may be incomplete.
Administrative, Contract, Local Government, Information, Human Rights
Updated: 05 June 2022; Ref: scu.167766
