Ambrosiadou v Coward
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Leveson,Lord Justice Pitchford |
| Judgment Date | 12 April 2011 |
| Neutral Citation | [2011] EWCA Civ 409 |
| Docket Number | Case No: A2/2010/1855 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 2011 |
[2011] EWCA Civ 409
The Master of the Rolls
Lord Justice Leveson
and
Lord Justice Pitchford
Case No: A2/2010/1855
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Claim No HQ10X02201
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Spearman QC and Mr Justin Rushbrooke (instructed by Schillings) for the Appellant
Mr Desmond Browne QC and Mr Jacob Dean (instructed by Hogan Lovells International LLP) for the Respondent
Hearing date: 20th March 2011
Introductory
This is an appeal against a decision of Eady J, who, on 15 July 2010, refused to continue an interlocutory injunction, granted ex parte by Maddison J, sought by the claimant, Elena Ambrosiadou against the defendant, Martin Coward, her estranged husband. However, Eady J continued the injunction pending this appeal.
The injunction restrained the defendant from;
"(1) Deal[ing] with or part[ing] with possession of [any documents] ('the Documents') … filed or served … in the divorce proceedings in Greece between [the parties], and
(2) us[ing or] publish[ing] communicat[ing] or disclos[ing] … other than to his legal advisers … any information or claims extracted or derived from the Documents or any of them…".
The order made by Maddison J was subject to two provisos, which were in the following terms:
PROVIDED ALWAYS that nothing in [para (2)] of this Order shall be taken to either prevent or allow the [defendant] to use publish communicate or disclose information or claims which he possesses independently of the contents of the Documents;
PROVIDED ALWAYS THAT the above prohibitions shall not apply if and to the extent that at the date of this Order or at any time hereafter the Documents or any of them are or become generally accessible to the public other than as a result of a breach of this Order or a breach of confidence or privacy on the part of any person … ."
The factual background
The claimant and the defendant ("the parties") got married in England in 1983, and they have one son ("the boy"), who was born in October 1996. In 1992, the parties founded a company called IKOS CIF Limited ("IKOS"), which has grown into a very successful hedge fund management services operation, which currently has assets under management worth around US$1,200m. IKOS has been registered in, and has operated from, Cyprus, since 2005, which was around the time the parties went to live there. It appears that the claimant claims to have been was responsible for IKOS's management and marketing, and the defendant says that he developed and managed the software for research and its trading operations.
In April 2009, the claimant started divorce proceedings ("the Greek proceedings") by issuing a petition in Thessaloniki, Greece – the proceedings referred to in para (1) of the order made by Maddison J. After the defendant issued a counter-petition in those proceedings in January 2010, the claimant filed a further claim for divorce in Monaco (and she withdrew her petition in August 2010, and two months after that, the defendant withdrew his counter-petition). It appears to be the claimant's case that the marriage had fallen apart in 2004, whereas the defendant says that it was the claimant's summary dismissal of his research and development team at IKOS in December 2008 which effectively caused the marriage to founder.
In December 2009, the defendant resigned from the board of IKOS. Shortly thereafter, IKOS brought proceedings in Cyprus, which resulted in an injunction being granted against the defendant on 23 December 2009 to protect its rights of confidentiality. That injunction was subsequently registered here, so that, as the Judge pointed out, it would be enforceable pursuant to the Judgments Regulation and the Civil Jurisdiction and Judgments Order ( SI 2001 No. 3929), at the suit of IKOS.
On 19 May 2010, the defendant issued an application ("the May application") in the Greek proceedings for provisional measures, relating to the boy. In summary, he sought orders concerning his contact with the boy, and the boy's schooling and assets. The notice in support of the May application ("the May application notice") contained a number of allegations relating to the disputes which had arisen between the parties both domestically and in relation to IKOS. At least to an English lawyer, many of these allegations seem to have had little to do with the provisional measures which the defendant was seeking.
On 27 May 2010, at a hearing in the Thessaloniki court ("the May hearing"), after rejecting the claimant's application for an adjournment, a Judge made orders regarding the defendant's contact with the boy and the boy's education. (The May application notice has now been withdrawn by the defendant: this occurred around the time that he withdrew his counter-petition following the withdrawal of the claimant's petition, so it appears that the Greek proceedings are now discontinued).
On 29 May 2010, the defendant's solicitors, Hogan Lovells International LLP ("Lovells") sent Louise Armitstead, a Daily Telegraph journalist, a copy of the May application notice, together with a copy of a written proposal he had made to the board of IKOS on 9 December 2009 and his letter of resignation from the board of IKOS (the "resignation letter"), written two days thereafter. Lovells made it clear to Ms Armitstead that they did not wish her to reveal that they were her source.
On 1 June 2010, Ms Armitstead contacted the claimant's public relations representatives about this, and the claimant's solicitors, Schillings, immediately sought an undertaking from the publishers of the Daily Telegraph not to use the information contained in those documents. The publishers of the Daily Telegraph promised to give notice to Schillings before publishing any such information. This promise was breached when an article appeared in the 3 June edition of the Daily Telegraph without any such prior notice, but, fortunately, its contents were not objectionable.
Just after 10.00 am on 4 June 2010, Schillings contacted Lovells, as they rightly suspected that the defendant was Ms Armitstead's source, and threatened to apply for injunctive relief unless the defendant gave appropriate undertakings. This prompted the defendant to issue, through his litigation public relations company, a statement ("the June statement") just before midday. In that statement, he said that he had so far "refrained from commenting in detail either to my former clients or to the media", but, following "an open court hearing in Greece", he had decided to release a copy of the May application notice, which, as he explained, set out his resignation letter in full. As he also explained in the June statement, the copy of the May application notice he was releasing had been redacted "to protect the privacy both of IKOS clients and Dr Coward's son."
It appears that the June statement and the redacted May application notice were sent to rather over fifty organisations, most of them media organisations. Unsurprisingly, Schillings learnt of the June statement within a couple of hours of its release, and, equally unsurprisingly, they immediately wrote complaining about it in very strong terms to Lovells.
The June statement and redacted May application notice resulted in an article in the 5 June 2010 edition (both hard copy and electronic version) of the Daily Mail, which referred to the "bitter divorce" between the parties, the defendant's allegations of the claimant's high-handed behaviour, and a custody battle.
Unfortunately, the redacted version of the May application notice could, with the use of a piece of non-standard, but fairly easily available, software costing around £300, be unredacted. In other words, the parts of the May application notice which the defendant had blanked out could be restored, and therefore read, by someone who had access to the necessary technical knowledge and the software.
The defendant refused to admit that he had done anything wrong, so the claimant immediately applied to Maddison J for ex parte relief, which was granted during the evening of 4 June. The application then came on inter partes before Eady J on 21 and 22 June, and, having heard argument as to what could be included in his open judgment on 8 July, he handed down a reserved judgment on 15 July 2010 dismissing the application.
The judgment of Eady J
In his judgment, Eady J explained that the defendant's May application contained a great deal of information which seemed, at least on the face of it to an English lawyer, to have little to do with the relief he was seeking, dealing as it did in some detail with the parties' actions in relation to IKOS. However, he recorded that the parties "agreed that the matrimonial proceedings and their business affairs are inextricably linked" — [2010] EWHC 1794 (QB), para 5. Nonetheless, as he also said, six paragraphs later, "[i]t is quite possible that the defendant believed … that if the matters he wished to canvass in public were mentioned in open court, … they could then be reported and referred to in public without his incurring legal liability …".
The Judge considered a substantial amount of expert evidence and argument as to whether the May hearing was in open court or not (see at [2010] EWHC 1794 (QB), paras 18–26 and 34–48), and he concluded that the evidence was equivocal. However, as he explained, that was not necessarily destructive of the claimant's case, which had to be determined by reference to section 12(3) of the Human Rights Act 1998, as discussed in Cream Holdings Ltd v Banerjee [2005] 1 AC 253. Accordingly, as he put it, "[t]he critical question … is whether she would be...
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