Arcadia Group Ltd v Telegraph Media Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 08 February 2019 |
| Neutral Citation | [2019] EWHC 223 (QB) |
| Docket Number | Case No: HQ18M02611 |
| Court | Queen's Bench Division |
| Date | 08 February 2019 |
[2019] EWHC 223 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ18M02611
James Price QC and Chloe Strong (instructed by Schillings International LLP) for the Claimants
Desmond Browne QC and Jonathan Price (instructed by Ince Gordon Dadds LLP) for the Defendant
Hearing dates: 29 January and 1 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimants are Arcadia Group Ltd, Topshop/Topman Ltd and Sir Philip Green. Their claim was for an injunction to prevent publication by the defendant newspaper group in breach of confidence. The information at issue had been the subject of non-disclosure agreements (NDAs) agreed in the context of the settlement of complaints or claims by employees, under which substantial sums of money were paid to and accepted by the employees.
The case has attracted publicity, and the general background is well-known. It is set out in some detail in the public judgment handed down by the Court of Appeal last October, [2018] EWCA Civ 2329 and, in shorter form, in a judgment of mine, handed down on 21 January 2019, [2019] EWHC 96 (QB).
The Court of Appeal, reversing the Judge at first instance, granted an injunction until after judgment in the action. It ordered the trial should be expedited, and the trial was scheduled to start before me on Monday 4 February 2019. On Tuesday 29 January 2019, I was due to hear the Pre-Trial Review, at which I would have given whatever directions remained necessary to ensure it was ready for the trial that was to start on Monday 4 February 2019. There were applications pending from the defendant, for permission to amend the Defence, and permission to serve witness summaries in place of signed statements.
On Monday 28 January, however, I learned that the claimants had decided to discontinue the claim, and thereby to abandon the interim injunction. So what in fact took place on Tuesday 29 January was a hearing of the claimants' formal application, filed the previous day, for permission to discontinue. Under the Civil Procedure Rules, a claimant may discontinue a claim at any time ( CPR 38.2(1)), but a claimant that wishes to discontinue after obtaining an interim injunction requires the Court's permission: r 38.2(2)(a)(i).
In addition, the claimants sought various specific orders: continued confidentiality for documents generated by the claim, and departures from the default position in relation to costs on discontinuance, which is that the discontinuing claimant pays the defendant's costs up to the time of discontinuance, to be assessed on the standard basis: r 38.6(1). There was some dispute over costs but, as I shall explain, the main contest related to the defendant's contention that the Court should only allow the claimants to discontinue on certain specified conditions.
I heard argument for half a day, and made one order which was not controversial. I then adjourned the application part-heard, to allow the claimants an opportunity to respond evidentially and by way of argument to the defendant's demand for the imposition of conditions. That demand was first indicated in the skeleton argument filed by the defendants on the day of the hearing. It came as a surprise to the claimants and their legal team, who had not prepared evidence or argument to meet it. The defendant itself had not filed evidence on the matter. None of this is in any way a criticism of the defendant. This was all dealt with on short notice because of the way the claimants had handled things.
The hearing resumed on Friday 1 February 2019. At the end of the further hearing I reserved my decision, though it will have been obvious that I had concluded that there would be no trial.
Issues and conclusions
There are three main issues for decision. The first is whether the Court should, as a condition of granting permission, impose an order in the form which the defendant was proposing by the time of the adjourned hearing, or some similar form:-
“in addition to the provisions of CPR rule 38.7, the Claimants may not without the permission of the court bring any further claim against any person including the Defendant insofar as any such claim asserts that:
(i) The publication of any information contained in the email from Daniel Foggo dated 16 July 2018 annexed to this order amounts to a breach of any of the agreements identified in the confidential schedule hereto (“the NDAs”), either by the Defendant or by any party to any such NDA;
(ii) Any publication derived from the Defendant's journalistic investigations and not derived from documents disclosed by the Claimants in these proceedings amounts to a breach of any of the NDAs; and/ or
(iii) The Claimants are entitled to any relief against the Notetaker (whose name is set out in the confidential schedule hereto) arising out of the provision by her to and/ or the publication by the Defendant of any of the documents or information referred to or contained in her witness statement dated 20 January 2019.”
The defendant's position was that unless such conditions were imposed, I should refuse permission to discontinue. The claimants' position was that no such requirements should be imposed, but Mr Price QC made clear on their behalf that the application to discontinue was not conditional. I have concluded, for the reasons that follow, that the claimants should be allowed to discontinue, without the imposition of any additional requirements or conditions beyond those imposed by the CPR.
The other two issues were as follows:
(1) Whether the Court should continue the confidentiality which the rules and orders of the Court presently confer on the following documents: closed judgments, judgments given in private, orders, witness statements, disclosed documents and statements of case.
This aspect of the claimants' application was, in the end, uncontroversial. For the reasons shortly stated later in this judgment, I grant the orders sought to preserve confidentiality.
(2) Whether the Court should depart, and if so how, from the presumption that the discontinuing claimants should pay the defendant's costs.
The claimants accepted that the general rule should apply, except as regards the costs of the interim injunction proceedings, and of applications for source disclosure and disclosure of documents that were dealt with by me. The claimants maintained that these were all applications that they had won. My conclusion, for the reasons given at the end of this judgment, is that the claimants should have their costs of the applications which I heard, for disclosure of sources and documents, but that there should be no order as to the costs of the application and appeal in relation to the interim injunction.
Key aspects of the background
To put these issues and decisions in context, it is necessary to explain some more of the background.
On 16 July 2018 a journalist, Daniel Foggo, sent Sir Philip and Neil Bennett of Arcadia's advisers, Maitland, an email (“the Foggo Email”) giving notice that the Daily Telegraph was preparing for publication an article containing allegations of misconduct on the part of the claimants, which had been the subject of non-disclosure agreements (“NDAs”). The claimants applied for an interim injunction to restrain disclosure of the information pending trial, asserting rights of confidentiality under or by virtue of the NDAs. At first instance, relief was refused. But the Court of Appeal reversed that decision.
The Court of Appeal judgment explains in detail why that Court decided to grant an interim injunction to protect the rights of confidentiality asserted by the claimants, pending the expedited trial which it ordered. In short, the Court took the view that, on the evidence before it, the NDAs had been entered into freely, with the benefit of legal advice, and that the claimants were likely to persuade the court at a trial that publication of the information in question should not be allowed. The Court of Appeal gave an outline of the information which was the subject of the claim, but made orders continuing the anonymity which had been granted to the claimants by previous Court orders. This is the normal course, when claimants seek to protect information which is alleged to be confidential or private. The Court of Appeal judgment was given on 23 October 2018.
On 24 October 2018, the Daily Telegraph ran a front-page article prominently headed “The BRITISH #MeToo SCANDAL WHICH CANNOT BE REVEALED. Leading businessman facing allegations of sexual harassment and racial abuse gags the Telegraph from publishing detail.” The opening paragraphs contained reference to the #MeToo campaign and “revelations” about Harvey Weinstein:
“A leading businessman has been granted an injunction against the Daily Telegraph to prevent the newspaper revealing alleged sexual harassment and racial abuse of staff.
The accusations against the businessman, who cannot be identified, would be sure to reignite the MeToo movement against the mistreatment of women, minorities and others by powerful employers.
MeToo became a worldwide social media campaign last year after revelations about Harvey Weinstein, the American movie mogul. Like Weinstein, the British businessman used controversial non-disclosure agreements (NDAs) to silence and pay off his alleged victims with ‘substantial sums’ …”
The story therefore told readers the nature of the information which was the subject of the claim, but it respected...
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