Reference:  EWHC 272 (QB)
Court: High Court (Queen's Bench Division)
Judge: Tugendhat J
Date of judgment: 17 Feb 2012
Summary: Confidentiality - misuse of private information - interim injunction - procedure
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Godwin Busuttil (Claimant)
Instructing Solicitors: Henri Brandman & Co for the Cs
C1 was a well-known businesswoman and a director of C2. D1 had previously been engaged by C1 as a nanny for her young daughter and her employment contract with C2 included express provisions as to confidentiality. D2 was a friend of D1 and had also worked briefly for the Cs. In March 2011 D1 had been convicted on her guilty plea of attempting to poison C1 and was sentenced to 12 months imprisonment. She was released from prison in June 2011.
In January 2012 C1’s PR agent became aware that an associate of D1 was seeking to publish a book about C1. Having been informed by his source of the contents of the manuscript, it appeared that they breached the obligations of confidentiality. Cs applied on notice to Ds for an interim injunction to prevent them publishing the confidential information.
D1 consented to the injunction. D2 meanwhile requested an adjournment of the hearing as she was abroad. She argued that that the book had nothing to do with D1, that it was all her own work, that it was based on her own experiences and observations while working for C1, that some of what she wanted to publish was already in the public domain, and that as she was not subject to a written confidentiality agreement she was not bound by any obligation of confidentiality to C1.
– Should an injunction be granted to prevent the publication of confidential material?
– Should the hearing be adjourned and if so on what terms?
Hearing adjourned pending D2’s return from abroad, but injunction granted against both Ds in the meantime.
The judge noted that:
– D1 was subject to a written confidentiality agreement.
– Although D2 was not, there was a strong case that she was under an implied obligation of confidentiality.
– There was also a strong case that both Ds were bound by the general law of privacy.
– Given the nature of their work for C1 and the fact that C1 had a young child it was highly likely that the Ds came into possession of confidential and private information while working for C1.
– There was a real risk that D2 would breach a duty of confidentiality owed to the Cs unless restrained by court order.
– D2 might need to take advice as to what the public domain proviso allowed her to do, and what information was and was not covered by the injunction
Because the Cs had applied for an interim injunction on notice to the Ds in accordance with CPR 23 and the August 2011 Practice Guidance for Interim Non-Disclosure Orders so far as it concerned non-urgent cases, the presumption was that there would only be one interim hearing (as opposed to two, where an applicant applies without notice). However, because D2 happened to be abroad when served with notice of the application and indicated that she wished to participate in the hearing, the hearing needed to be adjourned. Since he perceived there was a real risk that D2 would breach a duty of confidentiality owed to the Cs unless restrained by court order, the Judge granted an injunction pending the adjourned hearing not just against D1, who had consented, but D2. He also emphasised that if either D wished to argue on that occasion for a less extensive injunction or for no order at all, any such submissions would need to be supported by evidence, not merely ‘general statements’.