Full case report

Brevan Howard Asset Management LLP v Reuters Ltd, Maiya Keidan & Persons Unknown

Reference [2017] EWHC 644 (QB)
Court High Court of Justice, Queen's Bench Division

Judge The Hon. Mr Justice Popplewell

Date of Judgment 28 Mar 2017


Summary

Interim Injunction – Breach of Confidence – Public Interest – Prior Restraint – Open Justice


Facts

The C, Brevan Howard Asset Management LLP (‘BHAM’), brought an application for an interim non-disclosure order to restrain the use of 5 of their confidential documents by the Defendants. D1 is a well-known international news agency. D2 is a financial journalist working for D1, and D3 is a Person or Persons Unknown who leaked the confidential documents and/or the information derived from them.

The C had sent these documents to 36 potential professional investors and undertook several steps to keep the information contained within them confidential. D1 obtained this information and sought to publish it, asking the C for comment on 1 March 2017. D1 asserted that they had never had sight of the documents referred to by the C.

The Judge determined that the substantive hearing should be held in private. The Judge considered the possibility that aspects of the hearing could be considered in retrospect to be in public and handed down a public judgment in respect of the substantive hearing.


Issue

(1)        Did the information imparted by C have the necessary quality of confidence?

(2)        Was the information received by D1/D2 in circumstances which gave rise to a duty of confidence?

(3)        Is what is threatened by D1 an unauthorised use of the confidential information which would cause a detriment to the C?

(4)        Is there a public interest in publication?

(5)        Would damages be an adequate remedy?


Held

(1)   The documents were probably impressed with the quality of confidence. This was apparent from both its ‘nature and circumstances’ given the sensitive commercial nature of the information.

(2)   D2, a specialist financial journalist, would have been aware of the confidentiality of the information she had in her possession. In any event, D1/D2 were on notice from 1 March 2017 of the information’s confidentiality, Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556 followed.

(3)   It does not matter that D1/D2 did not have C’s documents in their possession. The information they sought to publish was both confidential and derived from C’s documents. Detriment is not a necessary ingredient for the cause of action in breach of confidence, Attorney-General v Observer Ltd [1990] 1 A.C. 109 at [256] followed.

(4)   The identifiable public interest did not meet the relevant test that in the circumstances, it was not in the public interest that the duty of confidence should be breached, Associated Newspapers Ltd v HRH Prince of Wales [2002] Ch.57 at [68] applied. This was for the following reasons:

a) The importance of maintaining duties of confidence, particularly in the context of disclosure to potential investors, in material which is relevant to their decision making. Full and candid disclosure is highly desirable in the context of large financial investments.

b) There had been no misleading self-promotion by C that could lead to the assertion that publication was exposing hypocrisy or incompetence, or that there was any deceit or concealment.

c) The relevant provisions of the IPSO code demonstrated that the identifiable public interest is at the lower end of the spectrum in this case.

5)   The difficulties in establishing the amount of damages in a case such as this are obvious, those difficulties justify injunctive relief.

Accordingly, the injunction was granted. C had satisfied the Judge that they would more likely than not establish at trial that they would be entitled to restrain publication.


Comment

The case is a useful illustration of the way a public interest justification applies in breach of confidence cases. The Judge found that the operations of hedge fund managers, whose decisions affect the financial stability of the global financial system, were a matter of public interest but that did not justify overcoming the strong public interest in maintaining confidential relationships. Although the presence of iniquity is not a prerequisite for a public interest justification, the Judge emphasised what was said in the seminal case of Lion Laboratories v Evans [1985] 1QB 526 at 551 about the exceptional nature of a case where, as here, no iniquity is present.


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Instructing Solicitors

Schillings International LLP for the Claimant; Wiggin LLP for the Defendents