HRH The Prince of Wales v Associated Newspapers Ltd

Reference: [2006] EWHC 11 (Ch)

Court: High Court, Chancery Division

Judge: Kitchin J

Date of judgment: 13 Jan 2006

Summary: Confidential Information - Reporting restrictions - Restrictions on use of a disclosed document - Documents read or referred to in open court - CPR 31.22

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Appearances: Christina Michalos QC (Defendant) 

Instructing Solicitors: Harbottle & Lewis for the Claimant; Reynolds Porter Chamberlain for the Defendant

Facts

D published extracts from a journal written by C about his official visit to Hong Kong in 1997. C complained of breach of confidence and copyright, and applied for summary judgment. As part of C’s evidence in support of the application, a list of names of the people to whom the Hong Kong journal had been sent was exhibited (the Recipient List). A schedule to the Particulars of Claim listed the dates and titles of a number of other journals which D had obtained (the Journal List) D had already given a contractual undertaking to C that it would not disclose the Journal List except for the purposes of the proceedings or to the extent that it entered the public domain and D offered a similar undertaking in respect of the Recipient List. At the directions hearing, C applied for an order under CPR 31.22 restraining the publication or disclosure of the information in both Lists even though both had been read by the court and referred to.

Issue

Whether an order under CPR 31.22 should be made. The D accepted for the purposes of argument that the rule applied but argued that (1) the information in the Journal List was not confidential, and already in the public domain (2) relying on Lilly Icos v Pfizer (No 2) [2002] EWCA Civ 2, very good reasons were required for departing from the normal rule of publicity, none of which applied in this case (3) to the extent any protection was appropriate the contractual undertakings given and offered were sufficient.

Held

Granting the Claimant’s application, the Court made an order under CPR 31.22 restraining the publication or disclosure of the information contained in the Schedule and the Recipient List until judgment on the summary judgment application. The Court referred to the criteria set out in Lilly Icos but held that good reasons had been shown and the Claimant had made out ‘an arguable case that they contain private confidential information of a sensitive nature.’

Comment

This is the first instalment of what promises to be a very interesting case. This was the directions hearing prior to a summary judgment application which is likely to be heard sometime in February 2006. Amongst a number of issues, it is likely to explore the vexed area of the ambit of a public interest defence to copyright infringement and could also raise matters of significant constitutional importance as to the role of the Claimant.