Fortescue Metals Group & anor v (1) Argus Media Ltd (2) S&P Global Inc
Reference:  EWHC 1304 (Ch)
Court: High Court (Chancery Division)
Judge: Miles J
Date of judgment: 22 May 2020
Summary: Breach of Confidence - Trade Secrets - Injunction - Public Interest
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Andrew Caldecott QC
Instructing Solicitors: Harcus Parker for the Claimants; Wiggin LLP for the First Defendant; Mishcon de Reya for the Second Defendant
The Claimants were Australian producers of iron ore, mostly sold under long-term contracts to predominantly Chinese customers, but also selling some quantities on the spot markets. The long-term contracts generally included a Discount as part of their price formulae, being a percentage discount from the Second Defendant’s Platts 62% Fe Index. This Discount, common to all long-term customers, was communicated monthly to existing and prospective long-term customers. As the claimants moved from intermediated selling to direct sales, they nowsought to keep the Discount confidential.
The Defendants were English and American Price Reporting Agencies (“PRAs”). They had routinely reported the Claimants Discount since 2014. They did not acknowledge that the Discount was confidential, saying it had always appeared in the public domain prior to their publication, and in any event a duty of confidentiality did not arise; alternatively if the Discount was confidential, that the public interest in publication outweighed the public interest in preservation of confidence.
The Claimants applied for an injunction pending trial, restraining the Defendants from publishing the Discount.
Applying the test in s.12(3) Human Rights Act 1998:
(1) Were the Claimants more likely than not to demonstrate that the information was confidential?
(2) Were the Claimants more likely than not to demonstrate that the public interest in preserving the confidence outweighed the public interest in publication?
(1) The Claimants were more likely than not to prove at trial that the information was confidential, and (if necessary) that they were likely to demonstrate that they would suffer detriment by disclosure of that information.
(2) However, on the public interest balancing test, the judge was not satisfied that the Claimants were more likely than not to obtain a final injunction after trial, and so the injunction was refused.
A case very much decided on its facts, but interesting for the careful analysis of the public interest balancing test in the comparatively rare context of a pure (non-privacy) commercial breach of confidence claim against the media.