Factual and Procedural Background
The present interlocutory proceedings arise from an application by the Appellant, a senior executive of Company A, seeking to restrain publication by the Appellee, a national newspaper, on grounds of breach of confidence. The dispute concerns the publication of various items of information or allegations relating to the Appellant’s past intimate relationship with an individual ("Individual B") and the use of Company A’s resources in that context. The relationship lasted from late 2002 to early 2006, during which Individual B was financially supported and assisted in immigration and business matters by the Appellant.
Following the end of the relationship, Individual B encountered financial difficulties and communicated with the Appellant seeking further assistance. Subsequently, Individual B contacted the newspaper, which indicated an intention to publish articles about the Appellant. The Appellant applied for an injunction on 6 January to restrain publication of confidential information, which was initially granted on wide terms by Underhill J. The injunction was continued by Eady J pending further evidence, leading to a full inter partes hearing on 23 January. On 9 February, Eady J issued an order maintaining the injunction in part but refusing it in key respects, with the Appellant seeking permission to appeal.
The appeal involves complex legal questions under Articles 8 and 10 of the European Convention on Human Rights and the Human Rights Act 1998, particularly concerning the balance between privacy rights and freedom of expression at the interlocutory stage.
Legal Issues Presented
- Whether the Appellant has a reasonable expectation of privacy in respect of various categories of information relating to his personal relationship and use of Company A’s resources.
- Whether the court should grant an interlocutory injunction restraining the publication of such information under section 12(3) of the Human Rights Act 1998, considering the balance between Article 8 (right to privacy) and Article 10 (freedom of expression) rights.
- The appropriate scope and form of any injunction, including whether a general or category-specific injunction is proper.
- Whether details of a deliberate lie told by the Appellant to the court about the circumstances of his meeting with Individual B should be published in the judgment or restrained from publication.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that the information sought to be published was confidential or private, falling within the protection of Article 8, and that he was likely to succeed at trial in establishing that publication should not be allowed.
- He argued for a reinstatement of the wide injunction initially granted by Underhill J, restraining publication of all confidential or private information obtained by Individual B during the relationship.
- Regarding the lie told to the court, the Appellant submitted that publishing the details would be a disproportionate penalty and sought to restrain publication of those details by the newspaper.
Appellee's Arguments
- The newspaper asserted its right under Article 10 to freedom of expression and publication of information of public interest, including certain categories of information about the Appellant’s use of Company A’s resources and the bare fact of the relationship.
- The Appellee contended that the Appellant had no reasonable expectation of privacy in respect of some categories of information, particularly those concerning alleged misuse of corporate resources.
- They maintained that the details of the lie should be published in the judgment, supporting transparency and public justice.
- The newspaper did not offer an undertaking not to publish other information previously enjoined and emphasized the public interest in disclosure.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Scott v Scott [1913] AC 417 |
General rule that hearings should be in public unless good reason otherwise. |
Supported court’s decision to sit in private under CPR 39.2(3)(a) to protect subject-matter until determination. |
| Cream Holdings v Banerjee [2005] 1 AC 263 |
Principle that courts should avoid publishing confidential information to prevent pre-empting publication by defendant and potential remedies. |
Guided the court in deciding not to publish certain confidential details in the judgment, applying a similar approach. |
| R v Legal Aid Board ex p Kaim Todner [1999] QB 966 |
Principle that parties should not be referred to anonymously unless justice requires it. |
Supported decision to refer to parties by their roles rather than anonymously. |
| Campbell v MGN [2004] 2 AC 457 |
Development of breach of confidence into misuse of private information; balancing Articles 8 and 10 rights. |
Framework for assessing reasonable expectation of privacy and balancing privacy against freedom of expression. |
| McKennitt v Ash [2007] EMLR 113 |
Clarification that English law has no standalone tort of invasion of privacy; breach of confidence incorporates Articles 8 and 10. |
Supported court’s approach to balancing privacy and expression rights, emphasizing nature of relationship and information. |
| Douglas v Hello! (No 3) [2006] QB 125 |
Confidentiality arises when information is known or ought to be regarded as confidential; importance of relationship context. |
Informed the court’s analysis of reasonable expectation of privacy and the significance of the pre-existing relationship. |
| HRH The Prince of Wales v Associated Newspapers Limited [2006] EWCA Civ 17 |
Affirmed tests for privacy and confidentiality; importance of the nature of information and relationship. |
Reinforced court’s focus on the relationship and nature of information in determining privacy claims. |
| Wainwright v Home Office [2004] 2 AC 406 |
Rejected existence of a general tort of invasion of privacy in English law. |
Supported the principle that privacy claims must be framed within breach of confidence. |
| Bonnard v Perryman [1891] 2 Ch 269 |
Rule governing interim injunctions in defamation cases. |
Considered but not relied upon by the court in this breach of confidence context. |
| In re S (a child) [2005] 1 AC 593 |
Neither Article 8 nor Article 10 has precedence; balancing test required. |
Guided the court’s approach to balancing privacy and freedom of expression rights. |
| Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 |
Standard on appellate review of balancing exercises. |
Court applied the principle that appellate interference requires error in principle or plainly wrong conclusion. |
| Dudgeon v UK (1984) 4 EHRR 149 |
Recognition that personal sexuality is an extremely intimate aspect of private life under Article 8. |
Supported court’s finding that details of the intimate relationship and related lie attract strong privacy protection. |
| Stephens v Avery [1988] 1 Ch 449 |
Sexual lives of partners are confidential information. |
Reinforced court’s view on privacy expectations concerning intimate relationship details. |
Court's Reasoning and Analysis
The court began by emphasizing the primacy of public justice and the general presumption of open hearings, tempered by the need to protect confidential information pending trial under section 12(3) of the Human Rights Act 1998. The court acknowledged the delicate balance between Article 8 rights to privacy and Article 10 rights to freedom of expression.
Applying the test from Campbell v MGN and subsequent authorities, the court assessed whether the Appellant had a reasonable expectation of privacy in respect of each category of information. It recognized that the existence and nature of the pre-existing intimate relationship between the Appellant and Individual B were central to this assessment.
The court distinguished between information related to the Appellant’s private life and information concerning the alleged misuse of Company A’s resources. It concluded that the Appellant did not have a reasonable expectation of privacy in respect of the latter, as such information was of legitimate public interest to shareholders and directors of Company A and not purely personal.
Regarding the bare fact of the relationship, the court accepted that publication was justified because it was necessary to contextualize other information and was already, to some extent, in the public domain.
The court rejected the Appellant’s submission that a general injunction should be reinstated, endorsing the judge’s approach of granting injunctions only for specific categories of information where justified, to avoid uncertainty for the newspaper.
On the issue of the deliberate lie told by the Appellant to the court, the court applied the principle from Cream Holdings v Banerjee that courts should avoid publishing confidential information in judgments if doing so would pre-empt publication by the defendant and potential remedies. The court held that although the lie was serious and relevant to credibility, it was not necessary to include the detailed circumstances in the public judgment. Instead, the newspaper should be free to decide whether to publish those details, subject to any remedies available at trial.
The court found that both the Appellant and Individual B had a reasonable expectation of privacy regarding the details of the lie due to their intimate nature and that the public interest in publication did not outweigh this at the interlocutory stage. The Appellant had failed to show a likelihood of success at trial sufficient to justify restraining publication of other categories of information.
Lastly, the court applied established appellate principles, concluding that the judge’s balancing exercise was within the range of reasonable decisions and did not warrant interference except in relation to the inclusion of lie details in the judgment.
Holding and Implications
The court DISMISSED THE APPEAL in all respects except one. It ordered that the detailed description of how the Appellant and Individual B met, which was the subject of the lie, be excised from the public judgment. However, it refused to grant an injunction restraining the newspaper from publishing those details, leaving publication to the newspaper’s discretion subject to remedies at trial.
The direct effect is that the interlocutory injunction will remain in place only for specific categories of confidential or private information as previously determined, while permitting publication of other information, including the bare fact of the relationship and alleged misuse of Company A’s resources. The judgment clarifies the application of Articles 8 and 10 in breach of confidence cases at the interlocutory stage and upholds the flexible threshold under section 12(3) of the Human Rights Act 1998.
No new legal precedent was established beyond the application of existing principles to the facts of this case.