Full case report

Ambrosiadou v Coward (CA)

Reference [2011] EWCA Civ 409
Court Court of Appeal (Civil Division)

Judge Lord Neuberger of Abbotsbury MR, Leveson and Pitchford LJJ

Date of Judgment 12 Apr 2011


Summary

Privacy – interim injunction – document created for foreign matrimonial proceedings supplied by Defendant to media in this jurisdiction – whether judge should have granted injunction despite assurance given by Counsel on Defendant’s behalf – relevance of ‘Spycatcher’ doctrine


Facts

The Claimant, Elena Ambrosiadou, and her estranged husband, Martin Coward (the Defendant), were involved in matrimonial litigation in Greece. During their marriage they had built up a very substantial hedge fund business, IKOS. In the course of the matrimonial proceedings, in May 2010, the Defendant issued an application (‘the May application’) seeking provisional measures in relation to contact with and the upbringing of their son, a minor. A hearing took place in Greece on 27 May 2010 at which the Court made certain interim orders pending a full hearing of the application. Two days later the Defendant’s English solicitors sent a full copy of the May application notice to the Daily Telegraph, asking that they not be named as the source. On 4 June 2010 the Claimant’s solicitors contacted the Defendant’s and threatened to apply for injunctive relief unless appropriate undertakings were received. In response the Defendant issued a press statement to more than 50 media organisations saying that he had decided to release a copy of the May application notice ‘following an open court hearing in Greece’. He stated that he had redacted the notice ‘to protect the privacy’ of IKOS clients and their son. In fact, it was possible to lift the redactions with the aid of certain commercially available software. The Claimant was granted an interim injunction that evening by Maddison J restraining the Defendant from using or publishing (otherwise than to his legal advisers)any information or claims extracted or derived from the May application notice (or other documents from the Greek proceedings). At the hearing on the return date Eady J refused to continue the injunction, holding that: (i) the Claimant’s and her son’s Article 8 ECHR rights were engaged in relation to the material that had been redacted; (ii) he would have had no hesitation in granting an injunction if he apprehended a real risk that the Defendant would publicise private matters, but (iii) there was no likelihood that the Defendant would publicise the matters he had attempt to redact from the May application notice. In this connection he relied on an assurance given by the Defendant’s Leading Counsel that in any future publication the redaction would be effective. The Claimant appealed.


Issue

(1) Whether any of the material left unredacted by the Defendant was confidential in the sense that it infringed the Claimant’s or her son’s Article 8 rights;

(2) Whether, in all the circumstances, the Judge should have continued the interim injunction;

(3) If the answer to (2) was yes, what was the extent of the injunctive relief that the Court of Appeal should grant.


Held

Allowing the Claimant’s appeal:

(1) The material which was not redacted from the notice did not contain information in respect of which the Claimant or the boy had a reasonable expectation of privacy. This material either amounted to information concerning the management of IKOS (and disgreements relating thereto), or consisted of anodyne information about the parties’ marital or personal relationship. By contrast, much of the redacted material contained information in respect of which the Claimant and the boy had a reasonable expectation of privacy, and which could not be said to have entered the public domain.

(2) The Judge’s decision should be reversed. In the absence of an injunction, any third parties to whom the unredacted or ineptly-redacted copies of the May application notice had been sent would be able to publish information contained therein without being in contempt of court pursuant to the so-called Spycatcher principle (Attorney-General v Newspaper Publishing Plc [1988] Ch 333, 375, 380).

(3) The injunction would restrain the Defendant (i) from publishing the material redacted from the May application notice, or any information contained therein or derived therefrom, and (ii) from publishing the May application notice in any form. The latter restriction was justified in the exercise of the Court’s discretion, in the light of the unfortunate turn of events when the Defendant had previously disseminated the notice.


Comment

The Master of the Rolls’ observation at [37] that he suspected that he would have granted an injunction if sitting at first instance is worthy of note: claimants in future will presumably point to it when faced with a defendant who offers only an ‘assurance’ rather than an undertaking to the Court not further to publish private or confidential material, at least in circumstances where the material has by that time been circulated to third parties. Also notable are the Court’s remarks about the need to conduct such hearings in public save only in the most unusual circumstances, and about the ways in which this may be achieved without compromising privacy rights: see [50]-[52], [54].


Instructing Solicitors

Schillings for C; Hogan Lovells for D