Reference:  EWCA Civ 950
Court: Court of Appeal
Judge: Sir Terence Etherton MR, Longmore, Sharp LLJ
Date of judgment: 7 Jul 2017
Summary: Appeal - Interim Injunction – Breach of Confidence – Public Interest – Prior Restraint – Open Justice
Download: Download this judgment
Appearances: Desmond Browne CBE KC - Leading Counsel (Respondent) Adam Speker KC (Respondent)
Instructing Solicitors: Schillings International LLP for BHAM; Wiggin for Reuters and Ms Keidan
The Claimant, 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 which was heard by Popplewell J on 23 March 2017. The Judge granted the order holding that BHAM had met the test for an interim injunction restricting freedom of expression in section 12(3) Human Rights Act 1998. He provided his reasons in a private and a redacted public judgment.
Reuters and Ms Keidan were granted permission to appeal by Jackson LJ, who gave no reasons for the grant of permission, on 12 April 2017.
At the appeal hearing, which took place in private, Reuters and Ms Keidan contended that the judge wrongly adhered to pre-Human Rights Act law on the public interest and failed to apply a proper balancing exercise.
- Whether Popplewell J wrongly adhered to pre-HRA law in believing that the paradigm case of public interest is where publication would correct a false impression or reveal wrong-doing or hypocrisy; and that, in the absence of such a factor, disclosure would only be permitted in the public interest if it was “vital” and the case was “exceptional.”
- Whether Popplewell J, as a result, failed to conduct a proper balancing and proportionality exercise because he adopted a “sliding scale of information by type or category.”
- Whether Popplewell J took into account or failed to take into account various matters including the following: that Reuters would not be able to publish any story without the information; that Reuters was a global publisher; that Reuters had behaved responsibly; that the difficulty of calculating damages was not a relevant.
- The Judge carried out a balancing exercise in order to decide the proportionality of granting an injunction. Such an exercise is one in which different judges can legitimately reach different conclusions. An appeal can only succeed if the judge made an error of law or principle or if he reached a conclusion which was plainly wrong: Browne v Associated Newspapers  QB 103 at ; JIH v News Group Newspapers  1 WLR 1645 at  applied.
- The Judge made no error of law and did not apply pre-HRA law wrongly. He applied the principles laid down by the CA in Associated Newspapers v HRH Prince of Wales  Ch 57 at - which was a post-HRA case and is consistent with the jurisprudence of the ECrtHR. The statements on the public interest in pre-HRA case law such as Lion Laboratories v Evans  1 QB 526 remain relevant although the test is now more properly expressed as one of proportionality as Popplewell J recognised.
- The criticism that the Judge wrongly carried out the balancing and proportionality exercise by adopting a sliding scale was misplaced. The only question the judge had to address, and which he did address, was whether the important public interest in the observation of obligations of confidence was outweighed by sufficiently significant matters of public interest in favour of publication. He answered that question and his decision should not be disturbed on appeal: Browne and JIH followed.
- The Judge carried out a proper balancing exercise. None of the specific points raised by Reuters justified disturbing his decision on appeal: Browne and JIH followed.
A firm rejection of all of the points raised by Reuters on this appeal.
The Court of Appeal praised the Judge for his substantial and detailed judgment delivered with impressive speed, the morning after the hearing.
It re-iterated that where an obligation of confidence existed, it was necessary for a defendant seeking to breach that confidence to demonstrate that the public interest in disclosing outweighed the public interest in maintaining confidence. Reuters were unable to do so here.