ZXC v Bloomberg L.P.
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Bean,Lord Justice Underhill |
| Judgment Date | 15 May 2020 |
| Neutral Citation | [2020] EWCA Civ 611 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/1158 |
| Date | 15 May 2020 |
[2020] EWCA Civ 611
Lord Justice Underhill
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Bean
and
Lord Justice Simon
Case No: A2/2019/1158
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mr Justice Nicklin
HQ17M00166
Royal Courts of Justice
Strand, London, WC2A 2LL
Antony White QC and Clara Hamer ( instructed by Reynolds Porter Chamberlain LLP) for the Appellant
Tim Owen QC and Sara Mansoori (instructed by Byrne and Partners LLP) for the Respondent
Hearing dates: 3 and 4 March 2020
OPEN AND PUBLIC VERSION OF JUDGMENT
Introduction
This is an appeal from the judgment of Mr Justice Nicklin (‘the Judge’) dated 17 April 2019, in which he found that the Defendant (‘Bloomberg’) had breached the Claimant's privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further identified the Claimant as the subject of a criminal investigation.
The primary question that arises on Bloomberg's appeal against the Judge's finding and the grant of the injunction is whether, and to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities. It is common ground that, if someone is charged with an offence, there can be no such expectation.
The Claimant originally included claims for breach of confidence and breaches of the Data Protection Act 1998. These claims were not pursued before the Judge; the Claimant accepted that, if he could not succeed with his claim in relation to the misuse of private information, he would not succeed in his breach of confidence claim and that similar considerations applied to the Data Protection Act claim.
This judgment is an open judgment. It is an edited version of the private judgment that was also handed down today. Following the Judge's approach below, sections of the private judgment have been removed or edited to protect the Claimant's identity. The approach to anonymisation taken here reflects that taken by the Judge.
Moreover, as was the case below, the Court has imposed a reporting restriction that prohibits both the reporting of the Claimant's name and any particulars or details likely to identify the Claimant, in connection with these proceedings. The contents of this open judgment can however be reported freely.
References to the judgment below are to the Judge's open judgment.
The background
Bloomberg is an international financial software, data and media organisation, with headquarters in New York. Bloomberg News is well-known in particular for its financial journalism and reporting.
The Claimant is a US citizen. He worked for a company, X Ltd, which operated overseas. The Claimant was the Chief Executive of one of X Ltd's regional divisions but was not a director of X Ltd.
The integrity of various transactions involving X Ltd has been publicly questioned for a number of years. Among these were transactions in a particular country (‘the Foreign State’).
These concerns led a United Kingdom Legal Enforcement Body (‘the UKLEB’) to begin an investigation into X Ltd. The current position is that none of the personnel employed by X Ltd has been charged with any offence 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. As the Judge noted, at [8], the details of the reports consequently appeared to either conjecture or to be unauthorised (and therefore unconfirmed) disclosures.
This remains the position.
The Autumn article
In the Autumn of 2016, Bloomberg published an article on its website concerning the Claimant's involvement in the UKLEB investigation (‘the Autumn Article’).
The Autumn Article was written by one of Bloomberg's journalists, HYX. It explained that the Claimant had been interviewed by the UKLEB as part of its investigation. The Judge concluded at [13] below that HYX's likely source for this information was someone employed at the UKLEB.
It is important to note that, although highly displeased at its publication, the Claimant did not take any action over the Autumn Article. Instead, acting through his solicitor Mr Byrne, the Claimant provided HYX with a comment for publication. The Judge described this as being an understandable media strategy in the circumstances.
The current action arises from the publication of a further article (‘the Article’), written by a different journalist to the author of the Autumn Article (‘the Journalist’). The Article which forms the subject of this appeal is detailed further at [26]–[28] below.
Mutual Legal Assistance
The United Nations Convention against Corruption (the ‘Convention’) was adopted in October 2003. It includes provisions for mutual legal assistance (‘MLA’), by which states can cooperate in investigating or prosecuting criminal offences.
A Letter of Request (‘LoR’) is the usual way of seeking MLA. LoRs are formal and highly confidential documents, as 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’, as well as by decisions of the courts in this jurisdiction. The introduction to these guidelines makes clear that it is a procedure used for obtaining material that cannot be obtained on a law enforcement (police force to police force) basis, and particularly in pursuit of enquiries that require coercive means (e.g. court orders to obtain material). In National Crime Agency v. Abacha [2016] 1 WLR 4375, the Court of Appeal explained the purpose and reach of LoRs. It emphasised their confidential nature at [37]–[38] and [48].
The Letter of Request
In 2016 the UKLEB sent a 15-page LoR, accompanied by several enclosures, addressed to the Competent Authority of the Foreign State. Its confidential nature could not have been made clearer since it was headed in bold: ‘Confidential Letter of Request’. It was expressed as a request for assistance pursuant to the Convention and the UN Convention against Transnational Organized Crime (Palermo, 2000); and gave a general description of the nature of the UKLEB's investigation into X Ltd:
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.
The LoR sought banking and business records in relation to X Ltd and a number of named individuals, one of whom was the Claimant. It also stated that the investigation concerned a number of possible offences: including, corruption, bribery, offences under the Proceeds of Crime Act 2002 and Fraud Act 2006, and conspiracy. Details were given of the various possible charges that were the subject of the investigation and of the maximum penalties upon conviction. It summarised the investigations up to that point; and identified three transactions that were the specific targets of the request for assistance. Two further pages explained why the assistance was required, and the early stage of the investigation was apparent from the description of the UKLEB's investigation and the areas in respect of which it sought assistance.
The LoR also contained a detailed assessment of the evidence that the UKLEB had so far obtained in relation to various transactions, together with initial conclusions that had been reached on the basis of the evidence it had obtained. In relation to the Claimant, the LoR contained the following assessment:
… We have obtained a number of documents from [X Ltd] which state [redacted]. However, the documents have used [incorrect information] and are thus false. The [UKLEB] believes that various suspects have committed fraud by false representation by dishonestly representing that [the property] was a valuable asset based on data for an entirely different asset. The [UKLEB] are investigating whether [the Claimant] was part of a conspiracy to defraud [X Ltd].
The LoR described six entities that the UKLEB believed would have documents which would assist its investigation and identified those documents. It concluded with details of how the evidence could be transmitted to the UK Central Authority and contained the following express statement under the heading, ‘Confidentiality’:
Although the fact of our investigation into [X Ltd] is public, neither its extent nor the detail of the information we hold is public. In order not to prejudice the investigation, I request that no person (including any of the above-named subjects) is notified by the competent authorities in your country of the existence and contents of this Letter of Request and any action taken in response to it. I further request that action is taken to ensure that any person from whom evidence is sought does not so notify any other person.
The reason for requesting confidentiality is that it is feared that, if the above suspect (sic) or an associated party became aware of the existence of this request or of action taken in response to it, actions may be taken to frustrate our investigation by interference with documents or witnesses.
If it is not possible to preserve the confidentiality in the above manner, please notify me prior to executing this Letter of Request.
Events leading up to publication of the Article
At [25]–[61] below the Judge made detailed findings as to how...
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