Browne v Associated Newspapers Ltd (CA)
Reference:  EWCA Civ 295;  1 QB 103;  3 WLR 289;  EMLR 538
Court: Court of Appeal
Judge: Clarke MR, Buxton, Keene LLJ
Date of judgment: 3 Apr 2007
Summary: Privacy - Injunction - Freedom of expression - Breach of confidence - Articles 8,10 ECHR - s.12 HRA 1998
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Aidan Eardley KC (Defendant)
Instructing Solicitors: Schillings for the Appellant; Reynolds Porter Chamberlain for the Respondent
Appeal against the decision of Eady J refusing to continue to restrain the Defendant from publishing certain categories of information concerning the Claimant’s private and business life. Following the end of their relationship C’s former partner (JC) had provided information to D. Eady J had held that C was entitled to a injunction in respect of private information disclosed to JC in confidence in the course of their relationship but not otherwise. The injunction would be lifted in respect of information about C’s alleged misuse of company resources, breach of confidentiality in revealing corporate information and documents to JC and the bare fact of C’s relationship with JC Additionally it emerged that C had lied to his advisors and the Court in respect of the circumstances in which he met JC, details of which were not subject to the injunction and were included in the Judge’s public judgment.
(1) Was the judge correct to allow publication of the information?
(2) Should publication of the circumstances in which the Claimant and JC had met be restrained?
(3) Was the judge wrong to include details of the circumstances in which the Claimant and JC had met in his public judgment?
Dismissing the appeal in relation to (1) and (2), but allowing the appeal in relation to (3):
(1) The correct approach was balancing the Art 8 rights against the Art 10 rights could the applicant demonstrate that he was likely to succeed at trial within the meaning of s.12(3) HRA 1998. The mere fact that the information was imparted in the course of a relationship of confidence did not give rise to an expectation of privacy, but was a very important consideration. The burden is on a Claimant to establish that he defeat any public interest defence at trial.
(2) The judge had not carried out the balancing process in relation to this information, but the Court of Appeal decided that publication should be allowed.
(3) The Judge erred in refusing to excise these details from his judgment. Applying Cream Holdings, at an interim stage even if the Court refuses an injunction, it should not itself pre-empt publication by the newspaper by publishing the private details itself.
The Cream Holdings point (see §26 in Lord Nicholls’ Judgment) is important. Even where a Court refuses an interim injunction in a privacy case, it should not include details in any public judgment which would have the effect of destroying the privacy. To do so risks depriving the Claimant of any meaningful remedy against the Defendant if ultimately it decides to publish. Also of note is the Court’s acceptance that privacy injunctions must specify clearly the information that cannot be published.