ABC & Others v Telegraph Media Group Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Henderson,Lord Justice Underhill VP |
| Judgment Date | 23 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2329 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/1947 |
| Date | 23 October 2018 |
[2018] EWCA Civ 2329
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
[2018] EWHC 2177 (QB)
Haddon-Cave J
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Underhill VP
and
Lord Justice Henderson
Case No: A2/2018/1947
James Price QC and Chloe Strong (instructed by Schillings International LLP) for the Appellants
Desmond Browne QC and Jonathan Price (instructed by Gordon Dadds LLP) for the Respondent
Hearing date: 25 September 2018
Sir Terence Etherton MR, Lord Justice Underhill VPand
In these proceedings the Claimants, who are the Appellants before us, seek an injunction to prevent the Defendant, which is the Respondent, from publishing what they say is confidential information about them which was disclosed in breach of confidence. On 18 July 2018 they applied for an injunction preventing disclosure on an interim basis. That application was heard by Haddon-Cave J (as he then was) on 23 July. The hearing took place in camera because if it had been heard in open court the information whose confidentiality the Claimants were seeking to protect would have been lost irrespective of the outcome of the application. On 13 August he handed down his decision refusing the application. In order to preserve the position pending any possible appeal his full judgment was produced in a “closed” format which cannot be released to anyone except the parties and their advisers; and the open judgment, which is on the public record in the usual way, omits not only the details of the information which the Claimants are seeking to protect but details of their identities and any background information which might lead to their identification. That judgment has the neutral citation number [2018] EWHC 2177 (QB) and more details about procedural history are given there.
We heard an appeal from Haddon-Cave J's decision on 25 September. By our judgment handed down today we have allowed the appeal and granted an interim injunction preserving the confidentiality of the information pending a full trial, which we have directed should be expedited. It has accordingly been necessary for us, like Haddon-Cave J, to give our decision in a way which preserves the confidentiality of the information pending the hearing. The parties have been given a closed judgment which sets out the background and gives our reasons in full. In this open judgment we refer to the background only in very general terms; but we appreciate that the issues – involving, as they do, the freedom of the press – are important and we have tried to explain our reasoning as fully as we can consistently with not jeopardising the confidentiality to which we must assume, at this stage, that the Claimants are entitled.
The Background in Outline
The Claimants are two companies in the same group and a senior executive of that group. Five employees of group companies (“the complainants”) have made allegations of discreditable conduct by that executive. Three of them did so through the companies' confidential internal grievance procedures. Two of those employees, when their grievance was not upheld, brought (separate) proceedings in the Employment Tribunal (“the ET”), as did another who had not employed the grievance procedure.
In all five cases the complaints were compromised by settlement agreements under which substantial payments were made to the complainants (“the Settlement Agreements”). The complainants in each case had independent legal advice in entering into the Settlement Agreement in their case. There were terms in each of the Agreements under which both sides undertook to keep confidential the subject matter of the complaints themselves and various associated matters, including the amounts paid by way of settlement. The Agreements safeguarded the complainants' rights to make legitimate disclosures (including reporting any criminal offences) if they chose. We will refer to this aspect of the Settlement Agreements as non-disclosure agreements (“NDAs”). In the case of the complainants who had brought ET proceedings the settlements were made at an early stage and before any details of the claims had gone on the public record.
On 16 July a Daily Telegraph journalist contacted the Claimants with a view to obtaining their comments on a story which it was proposing to publish about the complainants' allegations and also about how they had been handled up to and including the Settlement Agreements and the inclusion of NDAs in those agreements. It was accordingly clear that he was aware of the existence of the NDAs. It seemed to the Claimants that the information in question had been disclosed to the newspaper by one or more of the complainants or by other employees who were aware of the information and of the NDAs, and they immediately commenced the present proceedings.
At an early stage in the proceedings Nicklin J directed that attempts be made to ascertain the attitudes of the five complainants to whether information about their complaints should be published, even if they were not named. One complainant said that they were happy for their complaint, and the settlement, to be disclosed, provided they were not named. Two said that they supported the Claimants' application for an injunction. One said they did not support the application.
The Relevant Law
There is no dispute about the principles of law which must guide us in resolving this appeal.
The claimants seek an interim injunction to restrain the publication of information which they allege has been obtained by the Telegraph in breach of confidence. Section 12 of the Human Rights Act 1998 (“ HRA”) and Article 10 of the European Convention on Human Rights (“the Convention”) are therefore directly engaged. It will also be necessary to have regard to the Article 8 rights of the individuals who may feature in the intended publication.
Article 10 of the Convention is headed “Freedom of expression”, and provides that “[e]veryone has the right to freedom of expression”, which includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. This right is, of course, one of the foundations of a free press, and its importance in a democratic society can hardly be overstated. Nevertheless, it is not an unqualified right. So far as material, Article 10(2) states that:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”
Article 8(1) provides that:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
Section 12 of the HRA applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression: see subsection (1). Subsections (3) and (4) then provide as follows:
“(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.”
In Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253, the House of Lords gave authoritative guidance on the meaning of the word “likely” in section 12(3) of the HRA. The leading judgment was given by Lord Nicholls of Birkenhead, with whom the other members of the court agreed. Lord Nicholls pointed out (at [15]) that the “principal purpose” of section 12(3) “was to buttress the protection afforded to freedom of speech at the interlocutory stage”, and that:
“It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a “serious question to be tried” or a “real prospect” of success at the trial.”
Lord Nicholls then rejected the submission for the media in that case that “likely” in section 12(3) has the meaning of “more likely than not” or “probably”. He said (at [16]):
“This would be a higher threshold than that prescribed by the American Cyanamid case. That would be consistent with the underlying parliamentary intention of emphasising the importance of freedom of expression. But in common with the views expressed in the Court of Appeal in the present case, I do not think “likely” can bear this meaning in section 12(3). Section 12(3) applies the “likely” criterion to all cases of interim prior restraint. It is of general application. So Parliament was painting with a broad brush and setting a general standard. A threshold of “more likely than not” in every case would not be workable in practice. It would not be workable in practice because in certain common form situations it would produce results Parliament cannot have intended. It would preclude the court from granting an interim injunction in some circumstances where it is plain injunctive relief should be granted as a temporary...
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