ZXC v Bloomberg L.P.
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWHC 970 (QB) |
| Docket Number | Case No: HQ17M00166 |
| Court | Queen's Bench Division |
| Date | 17 April 2019 |
[2019] EWHC 970 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Nicklin
Case No: HQ17M00166
Tim Owen QC and Sara Mansoori (instructed by Byrne and Partners LLP) for the Claimant
Gavin Millar QC and Clara Hamer (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Defendant
Hearing dates: 27–30 November 2018
Approved Public 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 HONOURABLE Mr Justice Nicklin
This is a claim for misuse of private information. The central issue is whether the Claimant can have a reasonable expectation of privacy in information that relates to a criminal investigation into his activities. No charges have been brought against the Claimant.
The Claimant originally included also claims for breach of confidence and breaches of the Data Protection Act 1998, but these claims have fallen away. Mr Owen QC, for the Claimant, accepts that, on the facts of this case, (1) if the Claimant does not succeed with his misuse of private information claim, then he will not succeed with a breach of confidence claim; and (2) similar consideration means that the Claimant need not pursue his claim under the Data Protection Act. Those concessions have helpfully narrowed the issues that I have to decide.
This judgment is a version of a private judgment that I have handed down today. Parts of the private judgment have been removed or altered in order to produce this public judgment. The purpose of doing so is to avoid identifying the Claimant who has been anonymised by the Court due to the nature of the claim. The Court has made a reporting restriction order prohibiting the reporting in connection with these proceedings of the name of the Claimant or any particulars or details likely to lead to the identification of the Claimant as the Claimant in these proceedings. The contents of this public judgment can be reported freely.
The Parties
The Claimant is a citizen of the United States, but he has had indefinite leave to remain in the UK since 2014. He worked for a company, X Ltd, and became the Chief Executive of one of its divisions. He was not a director of the company.
The Defendant is an international financial software, data and media organisation which has its headquarters in New York. The Defendant publishes content on several platforms, including on Bloomberg. com. Bloomberg News is well-known, and recognised, particularly for financial journalism and reporting.
X Ltd's Operations
X Ltd carried on business in several foreign countries.
Public concerns about possible corruption
The integrity of some transactions involving X Ltd had been publicly questioned for a number of years.
The law-enforcement investigation
A UK law-enforcement body, “UKLEB”, began an investigation into X Ltd. The position, today, is that no-one has been charged as a result of the UKLEB investigation. Media reports as to the progress of the UKLEB investigation have appeared, from time to time, and there has been speculation as to the status of the investigation and the focus of UKLEB's inquiry. UKLEB's policy is not to make any public comment upon ongoing investigations and details in those reports would therefore appear to be either conjecture or to be based upon unauthorised – and therefore unconfirmed – disclosures.
The Article
In the Autumn of 2016, Bloomberg published an article on its website concerning the Claimant and the UKLEB investigation written by HYX (“the Autumn Article”).
Although the Autumn 2016 Article is not sued upon by the Claimant, the circumstances in which it came to be published have been the subject of evidence during the trial.
David Byrne is an experienced criminal solicitor. He was representing the Claimant in relation to the UKLEB investigation. In 2016, UKLEB had informed the Claimant that he would be required to attend for an interview under caution. Arrangements were made, and the Claimant (accompanied by Mr Byrne) duly attended for interview in the Autumn of 2016.
HYX emailed Mr Byrne. She told Mr Byrne that she had been trying to contact him, but his mobile phone had been switched off. In fact, at that moment, Mr Byrne had been sitting with the Claimant during his UKLEB interview. HYX stated that she wished to speak to Mr Byrne about the Claimant and asked him to telephone her as soon as he got the email. In gaps in the interview, Mr Byrne was able to send short emails to HYX asking her what she wanted. HYX replied by email:
“I understand [ZXC] has been called in by the [UKLEB] for an interview under caution as part of the [X Ltd] investigation and I'm writing a story noting this.
On background (i.e. not for attribution) I wondered if there was anything you wanted to say that I may not be aware of to put this into context/ and or anything that may be important for me to include to fully reflect your client's position?
And, of course, I also wanted to check if there was any comment you wanted me to include on-the-record.
Let me know if you would prefer to respond by phone. I can make myself available this evening.”
Mr Byrne was shocked that HYX had obtained this information. He considered that it could only have come from an unauthorised disclosure from UKLEB; no-one else knew the arrangements for the interview. The Claimant made the point in his evidence that he had been told by UKLEB that he had to keep the fact that he was being interviewed confidential. On the evidence, it would appear likely the information received by HYX had come from someone at UKLEB. This has not been confirmed by the Defendant on the grounds that this would disclose a confidential journalistic source.
Mr Byrne considered that, as the information that the Claimant had been interviewed by UKLEB was going to be published, the Claimant had little choice but to offer some comment for publication. That was an understandable media strategy. So, the following morning, again finding time between the Claimant's interviews with UKLEB, Mr Byrne spoke to HYX on the telephone and gave her a comment for publication.
HYX confirmed the terms of the statement with Mr Byrne by email and shortly thereafter the Autumn Article was published online. Comments from him appeared in paragraphs 2, 4 and 6. A spokeswoman at UKLEB was quoted as declining to comment, no doubt acting in accordance with UKLEB's policy not to comment on ongoing investigations.
Although not pleased about the leak of information that led to it, the Claimant did not take any action over the Autumn Article.
The Main Article
The claim in this action arises from the publication of a further article by the Defendant. The article, in the following terms, was written by [the Journalist] (“the Article”).
The information in the Article was almost exclusively drawn from a letter sent by UKLEB to a foreign government. The Article stated that this letter had been “ shown” to the Defendant. There is no dispute that this was a formal Letter of Request from UKLEB to the foreign government (“the LoR”). It is also common ground – now – that the Journalist, had not only been “ shown” the LoR, he had been provided with a copy of it prior to publication of the Article and which he had retained.
Mutual Legal Assistance and the Letter of Request
The United Nations Convention against Corruption was adopted on 31 October 2003 (“the Convention”). It included provisions for mutual legal assistance (“MLA”): a method of cooperation between States for obtaining assistance in the investigation or prosecution of criminal offences.
Under paragraph 15 of Article 46 of the Convention, a request for MLA 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.
MLA is usually sought by way of Letter of Request. Letters of Request are formal, and highly confidential, documents. This is recognised, and explained, in the 2015 Home Office guidance Requests for Mutual Legal Assistance in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom (“the MLA Guidelines”) and in decisions of the Courts in this jurisdiction. The introduction to the MLA Guidelines states that the procedure is used for obtaining material that cannot be obtained on a law enforcement (police to police) basis, particularly enquiries that require coercive means (e.g. court orders to obtain material).
“Requests are made by a formal international Letter of Request… In civil law jurisdictions these are also referred to as Commissions Rogatoires. The assistance is usually requested by courts or prosecutors and is therefore referred to as ‘judicial cooperation’.”
In National Crime Agency v Abacha [2016] 1 WLR 4375, the Court of Appeal reviewed the status of requests for MLA in an appeal against a refusal to order inspection of a particular MLA request under CPR Part 31.14. Gross LJ (with whom Hamblen LJ and Sir Colin Rimer agreed) explained the special status of Letters of Request and other requests for MLA:
[36] The importance of MLA is well explained in the introduction to the [MLA Guidelines]:
“MLA … is the formal way in...
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