Bloomberg L.P. v ZXC
| Jurisdiction | England & Wales |
| Judge | Lord Hamblen,Lord Stephens,Lord Reed,Lord Lloyd-Jones,Lord Sales |
| Judgment Date | 16 February 2022 |
| Neutral Citation | [2022] UKSC 5 |
| Court | Supreme Court |
[2022] UKSC 5
Lord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Lord Stephens
Appellant
Antony White QC
Clara Hamer
(Instructed by Reynolds Porter Chamberlain LLP (London))
Respondent
Tim Owen QC
Sara Mansoori
Edward Craven
(Instructed by David Byrne)
Heard on 30 November and 1 December 2021
Lord Hamblen AND( with whom Lord Reed, Lord Lloyd-Jones and Lord Sales agree)
The central issue on this appeal is whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
The appellant, Bloomberg LP (“Bloomberg”), is an international financial software, data and media organisation headquartered in New York. Bloomberg News is well-known for its financial journalism and reporting.
The respondent, ZXC (“the claimant”), is a citizen of the United States but has had indefinite leave to remain in the UK since 2014. He worked for a publicly listed company which operated overseas in several foreign countries (“X Ltd”) and became the chief executive of one of its regional divisions but was not a director.
The claimant brought a claim for misuse of private information arising out of an article (“the Article”) published by Bloomberg in 2016 relating to the activities of X Ltd in a particular country for which the claimant's division was responsible (the “foreign state”). These activities had been the subject of a criminal investigation by a UK law enforcement body (the “UKLEB”) since 2013. The information in the Article was almost exclusively drawn from a confidential Letter of Request sent by the UKLEB to the foreign state.
The claimant claims that he had a reasonable expectation of privacy in information published in the Article and in particular the details of the UKLEB investigation into the claimant, its assessment of the evidence, the fact that it believed that the claimant had committed specified criminal offences and its explanation of how the evidence it sought would assist its investigation into that suspected offending.
The claimant claimed that Bloomberg misused his private information by publishing the Article and sought damages and injunctive relief. Following a four-day trial before Nicklin J, the claims were upheld and damages of £25,000 awarded, as set out in his open judgment of 17 April 2019 — [2019] EWHC 970 (QB); [2019] EMLR 20. Bloomberg's appeal was dismissed by the Court of Appeal (Underhill LJ, Vice President of the Court of Appeal, Civil Division, and Bean and Simon LJJ) in its open judgment of 15 May 2020 — [2020] EWCA Civ 611; [2021] QB 28. Permission to appeal was granted by a panel of the Supreme Court on 17 December 2020.
The judgments below were given in an open form which was an edited version of the private judgment also handed down. In the open judgment sections of the private judgment were removed or edited to protect the claimant's identity. We propose to give an open judgment only. For the parties all further factual details are sufficiently set out in the private judgments given by the courts below. Those details are not necessary for the purpose of the decision on this appeal. References in this judgment are to the judge's and to the Court of Appeal's open judgments.
The integrity of various transactions involving X Ltd has been publicly questioned, including by UK Parliamentarians, for a number of years, including its transactions in the foreign state.
Following the announcement of the UKLEB investigation in 2013, Bloomberg and other media outlets have reported on the investigation, noting that the UKLEB was focusing on allegations of fraud, bribery and corruption relating to the activities of the company or its subsidiaries. The investigation remains ongoing, but the current position is that none of the personnel employed by X Ltd has been charged with any offence.
In the autumn of 2016, Bloomberg published an article (the “autumn article”). The autumn article explained that the claimant had been interviewed by the UKLEB as part of its investigation. A Bloomberg journalist had contacted the claimant's solicitor prior to publication. The judge found that the solicitor was shocked that the journalist had obtained this information and that the likely source for this information was someone employed by the UKLEB. The solicitor considered that, as the information that the claimant had been interviewed by the UKLEB was going to be published, the claimant had little choice but to offer some comment for publication. The judge described this as an understandable media strategy. The claimant, although highly displeased at its publication, did not take any action over the autumn article and has accepted that Bloomberg could continue to publish the information it contained.
Also in the autumn of 2016, the UKLEB sent a 15-page Letter of Request, accompanied by several enclosures, to the foreign state. A Letter of Request is the usual means by which legal assistance is sought by one state from another in relation to the investigation or prosecution of criminal offences in accordance with The United Nations Convention against Corruption (“the Convention”), which was adopted in October 2003.
Under paragraph 15 of article 46 of the Convention, a request for mutual legal assistance is required to include: (i) the subject matter and nature of the investigation to which the request relates and the name and functions of the authority conducting the investigation; (ii) a summary of the relevant facts; (iii) a description of the assistance sought and details of any particular procedure that the requesting state party wishes to be followed; (iv) where possible, the identity, location and nationality of any person concerned; and (v) the purpose for which the evidence, information or action is sought.
Letters of Request are confidential documents as recognised and explained in the 2015 Home Office guidance entitled Requests for Mutual Legal Assistance in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom, 12th ed (“the Guidelines”). As stated in the Guidelines:
“Confidentiality.
It is usual policy for central or executing authorities to neither confirm nor deny the existence of an MLA request, nor disclose any of its content outside government departments, agencies, the courts or enforcement agencies in the UK without the consent of the requesting authority, except where disclosure is necessary to obtain the co-operation of the witness or other person concerned.
Where public statements are made by an overseas authority about the assistance it is requesting from the UK, the central authority should be notified so that they may respond appropriately to any media or public enquiries.
In general, requests are not shown or copied to any witness or other person, nor is any witness informed of the identity of any other witness. In the event that confidentiality requirements make execution of a request difficult or impossible, the central authority will consult the requesting authorities. In cases where disclosure of a request or part thereof is required by UK domestic law in order to execute the request, it will normally be the case that the requesting authority will be given the opportunity to withdraw the request before disclosure to third parties is made.”
The confidentiality of Letters of Request was addressed in the Court of Appeal decision in National Crime Agency v Abacha [2016] EWCA Civ 760; [2016] 1 WLR 4375, which concerned a request for inspection of a Letter of Request under CPR Part 31.14. After a review of the authorities, Gross LJ stated at para 48 as follows:
“I accept that it is right to start from the position that letters of request such as the request are confidential. Both the Treaty and the Guidelines are clear in this regard. This court is of course anxious to assist the requests of friendly foreign countries for [mutual legal assistance], both as a matter of comity and on the very practical basis that it is only by furnishing such assistance that international crime and large-scale corruption can be combated. In many cases, there will be very good reasons for maintaining the confidentiality of such requests; examples are readily to hand — such as national security (when it arises), investigations at an early stage, a proper reluctance to disclose what lines of inquiry are being followed and which individuals are under suspicion.”
The Letter of Request was headed “CONFIDENTIAL LETTER OF REQUEST” and sought banking and business records in relation to X Ltd and a number of individuals, one of whom was the claimant. It gave a general description of the nature of the UKLEB's investigation into X Ltd and stated: “The investigation is at an evidence gathering stage. There have been interviews with some witnesses and suspects. There have been no searches of properties linked to the suspects at this time. Nobody has been charged with any offence.”
It stated that the UKLEB's investigation concerned possible offences of corruption, bribery, offences under the Proceeds of Crime Act 2002, and various offences under the Fraud Act 2006 together with conspiracy to commit certain offences. It gave a summary of investigations up to that point and identified the three transactions that were the specific targets of the request for assistance and explained why that assistance was required. It contained a detailed assessment of the evidence the UKLEB had so far obtained...
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