Brevan Howard Asset Management LLP v Reuters Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton, Mr |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] EWCA Civ 950 |
| Docket Number | Case No: A2/2017/1018 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 July 2017 |
[2017] EWCA Civ 950
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE POPPLEWELL
HQ17X00846
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Terence Etherton, Mr
Lord Justice Longmore
and
Lady Justice Sharp
Case No: A2/2017/1018
Guy Vassall-Adams QC and Ben Silverstone (instructed by Wiggin LLP) for the Appellants
Desmond Browne QC and Adam Speker (instructed by Schillings International LLP) for the Respondent
Hearing date: 28 th June 2017
APPROVED PUBLIC JUDGMENT
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This is the judgment of the Court.
This appeal concerns an application for an injunction to restrain publication in the media of confidential business information pending trial. This is a public judgment, with redactions from a private judgment we have handed down, and which are necessary to preserve the confidential information of the respondent, to avoid defeating the purpose of the application.
It is an appeal from the order of Mr Justice Popplewell dated 23 March 2017, by which he ordered that the appellants, Reuters Limited ("Reuters"), the well known global media news agency, and Maiya Keidan, a financial journalist employed by Reuters, be restrained from disclosing the information in Confidential Schedule 2 to the order.
The information derives from documents sent on terms of confidentiality by the respondent, Brevan Howard Asset Management LLP ("BHAM"), which is the manager of a number of hedge funds, to 36 potential investors.
For reasons which we gave at the outset of the hearing which was held in private, we ordered that the hearing of the appeal take place in private.
Unless the context indicates otherwise, references in this judgment to Reuters include Ms Keidan.
The background
We gratefully take the following summary of the background facts from the Judge's judgment.
BHAM is a leading global alternative asset manager. It is one of the largest hedge fund managers in Europe and currently manages over US $15 billion in a range of funds. The group of which it is part manages hedge fund assets for over 330 institutional investors around the globe. Its principal trading activities have taken place through the Brevan Howard Master Fund Limited ("the Master Fund").
BHAM sent information to 36 prospective professional investors. The information was contained in a package of documents provided electronically.
BHAM made efforts to keep confidential the information sent to these 36 prospective investors. Each investor was telephoned before receiving any documents and informed that the documents they would receive were confidential and highly sensitive. Each recipient was then sent the documents, which were password protected with the password being unique to each recipient. The first page of the package of documents was headed "Private and Confidential" and "Not for Distribution". The package then stated on its front page:
"Disclaimer and Important Information:
This document has been provided specifically for the use of the intended recipient only and must be treated as proprietary and confidential. It may not be passed on nor reproduced in any form in whole or in part in any circumstances without express prior written consent from Brevan Howard. Without limitation to the foregoing any text and statistical or any portion thereof contained in this document may not be permanently stored in a computer, published, re-written for broadcast or publication or redistributed in any medium except with the express prior written permission of Brevan Howard."
The package comprised seven documents, five of which are the subject of the application for an injunction. The other two documents contain information which it is accepted is in the public domain. Reuters has obtained information, from confidential sources which it has declined to reveal for journalistic reasons, which appears to derive from the package of documents. It is this information which Reuters wishes to publish.
Reuters first indicated its intent to publish this information on 1 March 2017 and on that date it sought confirmation as to the accuracy of the information from BHAM's external communications advisors, Peregrine Communications Group. There followed correspondence during which Reuters agreed to give six hours' notice during working hours before publishing.
Human Rights Act 1998 section 12 and Article 10 of the Convention
Article 10 of the European Convention on Human Rights ("Article 10") and section 12 of the Human Rights Act 1998 ("the HRA") were central to the determination of the application for an interim injunction pending trial.
Article 10 is as follows:
"Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Section 12 of the HRA is as follows, so far as relevant:
"Freedom of expression
(1) This section 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.
(2) …
(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.
(5) …."
The proceedings
In anticipation of bringing these proceedings, on 10 March 2017 BHAM applied ex parte to Master McCloud for an order, which was granted, to seal the court file. Master McCloud also ordered that witness statements could be filed, with confidential exhibits which would be retained by the court in sealed envelopes; that statements of case could be filed with confidential schedules, to be similarly protected; and that no-one other than a party could obtain any copy of a statement of case or other document from the court file without further order of the court and without notice being given to BHAM. The Master heard that application in private.
On 11 March 2017 the claim form and particulars of claim were issued and served. On 13 March 2017 an application notice was issued for an interim non-disclosure order in respect of the material contained in or derived from the five documents.
The application came before Nicol J in the Interim Applications Court on 16 March 2017. Only an hour of time was available on that occasion. Nicol J granted an interim order restraining disclosure or use of the information in issue until the application could be heard. That took place before Popplewell J on 22 March 2017. He heard the application in private.
The judgment
With impressive speed, the Judge delivered a substantial and detailed oral judgment on 23 March 2017, the day following the hearing of the application.
Having set out the background, he then set out the relevant principles of law. He said that the application engaged section 12 of the HRA because it sought to restrain the freedom of expression of Reuters protected by Article 10.
He said that imposed an enhanced merits test by comparison with that which ordinarily applies to applications for interim injunctions.
The Judge then referred to The Sunday Times v United Kingdom (No. 2) (1992) 14 EHRR 153 at [50] and to The Observer and The Guardian v United Kingdom (1992) 14 EHRR 153 at [6] for a summary of some key principles.
The Judge said that there was no dispute about the relevant ingredients of a cause of action for breach of confidence.
The Judge said (at para [24]) that, where Article 10 is engaged, freedom of expression may justify breach of confidence where publication is in the public interest, and whether it does so in a particular case is fact-sensitive and requires balancing the claimant's right to confidentiality with the defendants' right of freedom of expression. He referred in that connection to Lord Goff's speech in Attorney General v Observer Ltd [1990] 1 AC at p. 282E–F and to Associated Newspapers Limited v HRH Prince of Wales [2006] EWCA Civ 1776, [2008] Ch 57 at [55]. He then said that, where there is a breach of confidence, the test is not simply whether the information is a matter of public interest, but rather whether, in the circumstances, it is in the public interest...
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